Alvoen on behalf of the Wakaman People #3 v State of Queensland [2019] FCA 1469

Year: 
2020
Jurisdiction: 
Queensland
Forum: 
Federal Court
Legislation considered: 
s 84(8) Native Title Act 1993 (Cth)

Reeves J

In this matter the Court considered applications by the Wakaman Applicants to remove two respondents, Mr Rodney Chong and Ms Carol Chong, to two native title determination applications known as the Wakaman #3 and Wakaman #4 claims over land and waters in North Queensland.

Background

Mr Chong and Ms Chong are father and daughter and are both Wakaman People. Mr Chong claims that he is “the most senior elder of the Wakaman” and he and his family are connected by Aboriginal tradition with the land and waters within the Lynd and Tate River systems.

Mr Chong and Ms Chong are recorded in all of the Wakaman claims as being descendants of Mick McTavish and, therefore, members of the Wakaman native title claim group in those claims. However, they both claimed that they did not request or consent to being included as members of that group.

Mr Chong believes that the Wakaman #3 and Wakaman #4 applications include people that he does not identify as Wakaman and the area of land being claimed is not Wakaman country.

In support of their application the Wakaman Applicants claimed that the Chongs should be removed as respondents as:

  • s 84(3)(a)(ii) of the NTA refers to people who claim to hold native title in relation to the land or waters of a claim area “in competition” with the native title claim group, not as dissentient members of that claim group; and
  • the word “interest” in s 84(3)(a)(iii) of the NTA refers to an interest other than a native title right and interest.

They argued that, since Mr Chong and Ms Chong were Wakaman People and their only interests in the claim areas existed under the traditional laws and customs of the Wakaman People, and not under the traditional laws and customs of some competing group, they did not fall within the terms of either s 84(3)(a)(ii) or 84(3)(a)(iii) of the Native Title Act 1993 (Cth) (NTA) and should not have been joined as respondents. The Wakaman Applicants also argued that it was clear from Mr Chong's evidence that he and his daughter were dissenting members of the claim group and should be removed under s 84(8) of the NTA.

Consideration

Reeves J found that:

  • There was no need to determine the Wakaman Applicants statutory construction argument because the Court did not consider the Chongs to be dissenting members of the Wakaman claim group;
  • The Chongs were not seeking to use their position as respondents to pursue an inter-group dispute. Rather, they were disputing the composition of the claim group; and
  • The differences between the Chongs and the Wakaman claim group relate to the composition of the group of Wakaman persons who hold native title in the areas covered by the Wakaman claims and also to the boundaries of those areas. If these issues remain unresolved, they would ultimately have to be determined by the Court.

Having regard to all of these circumstances, the Court concluded that the Chongs should remain respondents because it was the only way they would be able to properly agitate their views and act to protect their native title interests, as they perceive them to exist, from “erosion, dilution or discount” by a determination of native title in those claims. This is a well-established basis for becoming, or remaining, a respondent party in native title proceedings 

Orders

The application is dismissed.