Case: Kokatha People v State of South Australia [2007] FCA 1057
Outcome: cited
As Finn J noted in Kokatha People v State of South Australia [2007] FCA 1057 (' Kokatha People ') at [9], it is well settled that a native title interest is a sufficient interest for the purposes of becoming a party to proceedings under ss 84(3)(a)(iii) and 84(5) of the Act. As persons with competing claims to native title for an area are entitled to be respondents to the competing claims for the same or overlapping area ( Kokatha at [20] per Mansfield J), so is a person who has a claim that competes with a claim that there is no native title. 26 In Kokatha , Mansfield J observed that all persons who claim to be entitled to native title rights should be able to become a party to the claim or claims in which those rights may be determined (at [20]). In that case, a number of parties claimed a native title interest in the land which was inconsistent with the native title rights and interests claimed by the claimants. His Honour rejected a contention that s 84(5) does not permit the joining of parties because they assert native title rights and interests. His Honour's view (at [22]) was that the Court has a discretion to join persons notwithstanding that the interests upon which they rely in seeking to be joined are native title rights and interests which cannot themselves be determined in the proceedings. His Honour gave an example of a competing native title group who claim communal rights and interests which may be affected by the determination of native title over the claim area. If there were a potential dilution of the competing interests or a possibility of limitation or qualification of the native title being claimed, the holder of the competing interest was eligible for joinder. The fact that native title rights are communally held does not disentitle an individual from being joined as a party whose rights may, individually, be affected (at [24]). His Honour recognised that an assertion of the rights enjoyed by individual members of a competing native title claim group may ' lead to a more informed decision ' as to whether a determination of native title rights and interests should be made as expressed in the application before the Court (at [24]). 27 Justice Finn recognised in Kokatha People at [18] that '[i] t is difficult to overstate the centrality of the requirement of "authorisation" in the scheme laid down by the Act for the making of a native title application '. His Honour adopted what had been considered in detail by Lindgren J in Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31. Justice Lindgren there observed that '[p] roper authorisation is the foundation for the institution and maintenance of a native title claimant application under s 61 ' of the Act (at [1171] citing Perry M and Lloyd S, Australian Native Title Law (Thomson Lawbook Co, 2003) at [3.140] p 439). At [1172], Lindgren J set out two well supported principles: that non-compliance with the authorisation requirement of s 61(1) is fatal to the success of an application and that authorisation must be by all the persons who constitute the native title claim group in respect of the common or group rights and interests comprising the particular native title claimed. 29 I agree with Finn J in Kokatha People at [48] that the legislative intent to require applicants to comply with the requirements of ss 61, 62 and 251B applies to any person or persons advancing a claim for a determination of native title. A person or group that seeks a positive determination of native title is required to make a s 61 determination application under the Act. 30 However, that does not mean that a person is unable to use claimed native title rights and interests defensively to combat a non-claimant application for a declaration that no native title exists. The assertion of such rights and interests may lead to a more informed decision in the non-claimant application. 31 The Court has a discretion under s 84(5) whether or not to join a person whose interests may be affected by a determination in the proceedings. That discretion is not, however, "at large" ( Gamogab at [56]). Where the interest claimed is a positive claim to native title, it is relevant to that discretion that no such determination can be made unless the requirements of ss 61, 62 and 251B are complied with ( Kokatha at [22] [23]; Moses v State of Western Australia [2007] FCAFC 78 at [18] ; Kokatha People at [45]) and the person or group of persons has a s 61 application on foot in the proceedings ( Kokatha at [23]; Kokatha People at [46]).