Emmett J
In this case Emmett J considered an application by Mr Wharton to be joined as a respondent to proceeding QG6019 of 1999 under s 84(5) of the Native Title Act 1993 (Cth) (‘NTA’). Mr Wharton sought to be joined as a representative of the Kooma people on the basis that, as a member of the Kooma people, he had native title interests in the land which was the subject of the proceeding.
Application of Yarmirr
Emmet J referred to the decision of Olney J in Yarmirr v Northern Territory [1997] FCA 274 (‘Yarmirr’). In that case, His Honour held that where an application for joinder is based on an interest as the holder of a native title right, the court must first determine whether that native title interest in fact exists. However, Olney J found that a native title determination cannot be made otherwise than in accordance with s 61 of the NTA. Without an application under s 61 of the NTA, His Honour held that the Court could not make a determination in respect of claimed native title interests, and therefore could not order a joinder under NTA s 84(5).
Conclusion
Emmet J did not follow the reasoning in Yarmirr, and instead found that a native title interest holder could have sufficient interest to warrant participation in a proceeding, notwithstanding that the Court cannot make a determination in relation to that interest in the proceeding in question.
However, His Honour went on to find that Mr Wharton could not be joined as a representative of the Kooma people under s 84(5A) of the NTA. Emmet J considered that while s 84(5A) contemplated that the interests of some could be properly represented by another, it did not make a person a respondent in a representative capacity. Mr Wharton was instead joined in his capacity as an individual under s 84(5).