Rangiah J
In this matter, the court determined that the Queensland South Native Title Services (QSNTS) was a party to a s 61 compensation proceeding under s 84(3) of the Native Title Act 1993 (Cth) (NTA). Further, the next hearing in the proceeding was adjourned for a definite period due to COVID-19. The applicant in the matter was Mr Wharton, with the State of Queensland responding.
The primary proceeding is in Saunders on Behalf of the Bigambul People v State of Queensland [2020] FCA 563, involving compensation application brought by the Bigambul People. His honour determined joinder and adjournment issues in both the Bigambul case and the current matter, and recommended the two cases should be read together.
Background
The QSNTS, Bigambul PBC and four Bigambul people all sought to join the compensation application as parties as per s 84(3) of the NTA. QSNTS is the native title representative body in the Southern and Western Queensland regions covered by the compensation application. The registrar declared QSNTS a party on 25 March.
The original applicants in the Bigambul case submitted that QSNTS, according to the Federal Court Rules, should not become a party until the end of the joining period (10 June). The Bigambul applicants also submitted an application to amend their claim and had applied for a tenure search under s 83A NTA. The Queensland Government sought to strike out the compensation application completely, and the date set to determine this was originally set for 18 May 2020. Both the Bigambul applicants and QSNTS sought an indefinite adjournment until the end of the COVID-19 pandemic, given their lead applicants were elderly, vulnerable to the illness and had left areas where sufficient contact with their representatives was possible.
Decision
Rangiah J did not grant an indefinite adjournment, noting the procedural unfairness this would have on the State and an applicant’s duty to remain in contact with their lawyers. However, he postponed the hearing until the 24 June 2020 where all three applications (the claim amendment, the strike out and s 83A applications) would be heard - allowing time for representatives to be briefed by their clients. His honour also assured the hearing could be virtually attended. Any difficulties could also be addressed by an application to stand-down the matter, or with further written submissions.
In relation to the QSNTS joinder, Rangiah J held that any person who meets the requirements of s 66(3)(a)(i) to (vi) of the NTA becomes a party when they provide notice to the Federal Court. This was stated as a mechanism of the NTA, not a power of the Federal Court. Therefore, QSNTS became a party to the compensation proceeding when it filed its Form 5 on 18 March 2020.