Case: Kokatha Native Title Claim v The State of South Australia [2005] FCA 836
Outcome: cited
Australia indigenous persons who are not claimants but contend that they have traditional rights and interests within the area of an application for a determination of native title, may have an interest which renders them eligible for joinder as parties. In Kokatha Native Title Claim v The State of South Australia [2005] FCA 836 , Mansfield J so held and observed (at [24]): assertion of those rights, to the extent that they are actually enjoyed by the party-applicants as individual members of the group, cannot lead in the Kokatha claim to a determination of native title rights and interests. They may however lead to a more informed decision on the Kokatha claim as to whether the native title rights and interests should be granted as expressed in that application. That is, the assertion of those rights may result in the Kokatha claim being less successful than it may otherwise be. Where there may be a competing native title group who claim communal rights and interests which may be affected by a determination in the Kokatha claim, but there is no application by that group over the claim area, the members of that group should not be precluded from putting forward their claim in a defensive attempt to avoid the dilution of those interests.' The criteria for the recognition of native title rights and interests at common law do not exclude the possibility that the common law could recognise the traditional rights and interests of persons who are neither Australian residents or citizens. It is not therefore beyond the bounds of possibility that a PNG national living in PNG who is a traditional inhabitant of the claim area may have rights and interests capable of recognition by the common law. The effect of the Act on the ability of such persons to obtain a determination under its provisions, is another matter. The expression 'native title' and 'native title rights and interests' as defined in s 223 of the Act '... means the communal, group or individual rights and interests of Aboriginal people or Torres Strait Islanders in relation to land or waters ...'. The term 'Torres Strait Islander' is defined in s 253 to mean '.... A descendant of an indigenous inhabitant of the Torres Strait Islands'. It would not seem, therefore, that a determination of native title could be obtained by PNG nationals on the strength of rights and interests possessed within Australian waters under the traditional laws acknowledged and the traditional customs observed by the society of which they are part. Nevertheless, the rights and interests of such persons might limit or qualify the native title rights and interests of Torres Strait Islanders. Such a limitation could arise as an element of the traditional laws acknowledged and the traditional customs observed by the Islanders themselves. This would be consistent with traditional concurrent use of areas of the Torres Strait within the claim area with people from PNG. In my opinion, on that basis, the interests asserted by Mr Gamogab, as a member of the relevant traditional community, would render him eligible for joinder as a party. It cannot be said that the interests of traditional inhabitants of the Torres Strait regional claim area from PNG would be unaffected by a native title determination over the sea. A native title determination recognising native title rights and interests on the part of the applicants could render enforceable and protected at Australian law, rights and interests which accord no recognition to the rights and interests asserted by Mr Gamogab and his community. In so saying, I offer no opinion on the question whether Mr Gamogab's asserted rights and interests as a traditional inhabitant do in truth exist in the claim area.