In this case Emmett J considered an application under s 84C of the Native Title Act 1993 (Cth) to strike out a native title determination application over an area near Cunnamulla in south-west Queensland. The application arose out of a dispute among members of a native title claim group as to who should have the conduct of an application on behalf of the Kooma People.
His honour noted that the authorisation of Wayne Wharton (the primary applicant) must be shown to have been in accordance with a process of decision-making agreed to and adopted by the native title claim group, citing Ridgeway on behalf of the Worimi People, in the matter of Russell v BIssett-Ridgeway [2001] FCA 848. His honour continued at [36] that ‘there is certainly no evidence that Wayne Wharton has been authorised in accordance with any such process.’
His honour concluded at [43], ‘that Wayne Wharton was authorised by the meeting of 27 and 28 February 1999 to make the Wharton Application. I am not satisfied, however, that an authorisation by that process satisfies s 251B(b), because the evidence does not enable me to conclude that a process consisting of a resolution of the members of the Kooma Corporation was a process of decision-making agreed to and adopted by the current descendants of the named apical ancestors. It follows from my conclusions that the application does not comply with s 61 [of the new NTA] and therefore should be struck out.’
No orders were made pending further consideration of the conclusions and the reason for them. This matter was heard again in Wharton on behalf of the Kooma People v State of Queensland [2003] FCA 1398.