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McCarthy on behalf of the Yuggera Ugarapal Applicant v State of Queensland [2020] FCA 1448

Year
2020
Jurisdiction
Queensland
Forum
Federal Court
Legislation considered
s 84 Native Title Act 1993 (Cth)
Summary

Reeves J

Introduction

This case concerned an application by Queensland South Native Title Services Limited (QSNTS) under s 84(5) of the Native Title Act 1993 (Cth) (NTA) to become a respondent party in the proceeding. The main proceeding concerned a native title determination application made by the Yuggera Ugarapul People in South East Queensland. Neither party to the main proceeding opposed the joinder, however the State of Queensland sought to impose the condition that on or before 11 December 2020, QSNTS file the QSNTS Material or any part not adopted by the Claim Group.

Requirements

Reeves J, citing Malone v State of Queensland (The Clermont-Belyando Area Native Title Claim) (No 4) [2020] FCA 1046, set out the following three requirements for QSNTS to be joined as a party to the proceeding:

That it has an interest in the proceedings;
That the interest it holds may be affected by a determination of native title in the proceeding; and
That it is in the interests of justice that it be joined as a party to the proceeding.

Reasons for decision

With respect to the first two requirements, His Honour relied heavily on two affidavits provided by Mr Kevin Smith, the CEO of QSNTS. The first described the background of the South East Regional Research Project (SERRP) which formed the main basis for QSNTS seeking to become a party to this proceeding. The second affidavit provided further expert material that QSNTS was gathering as a part of the SERRP.

His Honour followed the decision in Edwards on behalf of the Wongkumara People v State of Queensland [2014] FCA 282 where QSNTS made a joinder application in similar circumstances. Applying the observations made in that case to the current one, together with consideration of affidavits provided by Mr Kevin Smith (CEO of QSNTS) His Honour considered the first two requirements to be satisfied.

There was some contention as to the third requirement with the State purporting to impose the conditions mentioned previously to avoid the possibility of a conflict of interest. His Honour concluded that the most appropriate time to consider whether to impose any conditions on the use that is to be made of the expert materials is once they have been produced and duly considered by QSNTS and the Yuggera Ugarapul Applicant. For these reasons, QSNTS was joined as a party to proceeding without imposing the proposed condition.

Conclusion

For the above reasons His Honour considered it in the interests of justice that QSNTS be joined as a party to the proceeding under s 84(5) of the NTA without imposing the condition suggested by the State.