Foster on behalf of the Gunggari People #4 v State of Queensland [2019] FCA 1300

Federal Court
Legislation considered: 
s 84(5) Native Title Act 1993 (Cth)
s 87(10) Native Title Act 1993 (Cth)

Reeves J

This matter concerned an interlocutory application by Mr Wayne Wharton to be joined as a respondent to the proceedings concerning the Gunngarri People #4 native title determination application covering an area located west and north of Roma in western Queensland.

The application was considered urgently as the parties to the Gunggari People #4 application were about to file an agreement with the Court under s 87 of the Native Title Act 1993 (Cth) (NTA) in relation to a consent determination hearing approximately two and a half weeks later.


Mr Wharton is a senior Kooma person. The Kooma People hold native title rights and interests in the area which lies to the south of the lands over which the Gunggari People hold their native title rights and interests. Over the years, a number of disputes had arisen between the Kooma People and the Gunggari People concerning areas located in the vicinity of the common boundary to their lands. Many of these disputes had been resolved through mediation and Mr Wharton had been closely involved in many of the claims made on behalf of the Kooma People and as a respondent in some of the claims made on behalf of the Gunggari People.

Mr Wharton's application

Mr Wharton claimed that his interests would be affected if a determination were to be made in the area covered by the Gunggari People #4 application, particulary because it included the area of Mount Moffatt. 

Mr Wharton argued that if he were to become a respondent he would oppose a native title determination being made over the area of Mount Moffatt. He explained the lateness of his application by claiming that he only recently became aware that the Gunggari People #4 application included Mount Moffatt.

The Gunggari applicant argued that:

  • Mr Wharton had not established that he had a sufficient interest in the proceeding;
  • Mr Wharton had not established a native title interest in that area and, to the extent that he had and was seeking to pursue a positive determination of native title with respect to the Mount Moffatt area, that was not permitted;
  • Even if Mr Wharton had established that he had a sufficient interest for the purposes of s 84(5) of the Native Title Act 1993 (Cth)(NTA), that interest would not be affected by a native title determination in the Gunggari People #4 application because the determination only sought non-exclusive rights.
  • It was not in the interests of justice to permit Mr Wharton to become a respondent, in circumstances where he intended to oppose a determination being made over Mount Moffatt, as this was likely to lead to a vacation of the hearing set for 2 September 2019 and result in costs and further delays for the recognition of the Gunggari People’s native title rights and interests.


Reeves J found that Mr Wharton had a sufficient interest in the proceeding but a determination would not affect Mr Wharton's interests because the rights and interests sought by Gunggari People are non-exclusive rights and none of those rights and interests will interfere with the ability of Mr Wharton or members of the Kooma People to have meetings at Mount Moffatt or the surrounding area.

Reeves J also found that it was not in the interest of justice for Mr Wharton to be joined to the proceedings at such a late stage given his close involvement with native title proceedings in the region relating to the Gunggari People #4 claim and the extensive notification process and public records about the claim would have allowed Mr Wharton to know that the claim covered the area surrounding Mt Moffat.

The Court considered  the competing prejudices that Mr Wharton and the Gunggari people may suffer if he was joined as a party to the proceeding. Given Mr Wharton’s counsel had stated that if he was joined he intended to oppose any determination of native title being made over the Mount Moffatt area Reeves J was of the opinion that this would very likely result in a vacation of the hearing date for Gunggari #4.

In addition, while there is a procedure in s 87(10) of the NTA that would allow a party’s opposition to agreement to be considered and rejected, that procedure would not operate in these circumstances as it includes a notification period of at least 21 days.

Finally, the Court considered the confined nature of Mr Wharton’s interests was significant, the area surrounding Mount Moffatt comprises a small fraction of the Gunggari People #4 claim area.

If Mr Wharton became a respondent and succeeded in having the hearing on 2 September 2019 vacated, the Gunggari People would suffer much greater prejudice both as a result of the costs that will be wasted in vacating the hearing and further delay in recognition of their native title rights and interests over the claim area.

For these reasons, while Mr Wharton had established an interest for the purposes of s 84(5) of the NTA, the Court did not consider Mr Wharton had established that his interest will be affected by a determination of native title in the Gunggari People #4 application and it was not in the interests of justice to join him as a respondent party in this proceeding. 


The interlocutory application is dismissed.