Case: Munn v State of Queensland [2002] FCA 486
Outcome: considered
On 16 February 2006 Mr McKenzie and others lodged the second Kuyani claim (the Kuyani-Wilyaru People Native Title claim). It again overlapped in part the area of the overlap proceedings. Orders were made in these proceedings that the new claim be dealt with to the extent of the overlap. The new claim suffered from the same vices that affected the first Kuyani claim a matter raised by the ALRM. A notice of discontinuance was filed by the Kuyani-Wilyaru applicants on 31 May 2006 and an order was made in the overlap proceedings that orders made in it regarding the Kuyani-Wilyaru application cease to be operative. Mr McKenzie nonetheless remains a respondent in the overlap proceedings apparently on the basis that, notwithstanding the discontinuance, he claimed to hold native title in relation to land in the area covered by the proceedings: s 84(3)(a)(ii); or else his interests might be affected by a determination in it: see s 84(3)(a)(iii). I would note in passing that it is well settled that a native title interest suffices as "an interest" for the purposes of becoming a party to a proceedings under s 84(3)(a)(iii) and (5) of the NT Act: Akiba v Queensland (No 2) [2006] FCA 1173 ; (2006) 154 FCR 513 at [34] ; Munn v State of Queensland [2002] FCA 486 at [8] ; Rubibi Community v State of Western Australia [2002] FCA 876 ; (2002) 120 FCR 512; Davis-Hurst v Minister for Land and Water Conservation (NSW) (2003) 198 ALR 315 at [27]. 33 It is clear from the text and structure of the Act that a s 225 determination, once made, should be a final resolution, "once and for all", of the extent of native title in relation to a particular piece of land: see Munn v State of Queensland , at [8]; subject only to the possibility of it being varied or revoked on the limited grounds specified in s 13(5). Because such a determination is declaratory of the rights and interests of all parties holding rights or interests in the area, it is commonly and properly described as a judgment in rem binding the whole world: The Wik Peoples v The State of Queensland (1994) 49 FCR 1; Western Australia v Ward (FC), at 368-369; Gumana v Northern Territory [2005] FCA 50 ; (2005) 141 FCR 457 at [127] ; on judgments in rem see also 2 Smith's Leading Cases 776 (12 th ed, 1915). Nonetheless, it should in my view be remembered that it is the terms of the Act itself (i) which now emphatically give the s 225 determination its finalising effect; see in particular ss 13(1) and (3), 61A(1) and 68; and (ii) which give persons likely to be affected by such a determination (including native title claimants) the opportunity to protect their interests by becoming a party to the proceedings: see s 84(3) and see also s 66; cf The Wik Peoples at 5-6. My reasons for emphasising this will become apparent below. 35 The State's position in contrast is founded on s 61 as the prescribed and highly regulated vehicle by which claims for a determination are to be made. It accepts that strict adherence to the procedures of the Act can have inconvenient consequences, but contends these inhere in the very scheme of the Act. It also contends that it has the support of both appellate and first instance authorities, notably the recent Full Court decision in Moses v State of Western Australia and the decision of Mansfield J in Kokatha Native Title Claim v South Australia and of Emmett J in Munn v State of Queensland . 41 While several first instance judges have asserted a contrary view to that in Ward though without reference to it: see for example, Emmett J in Munn v State of Queensland at [8]; it was the decision of Mansfield J in Kokatha Native Title Claim v South Australia that first gave a limiting interpretation to what was said in Ward . In the Kokatha case, his Honour was dealing with applications made under s 84(5) of the NT Act by three individuals to be joined as respondent parties to the Kokatha claim, these persons asserting native title rights and interests in part of the Kokatha claim area. Consequent upon my strike out of the Kuyani determination application, they were not independently s 61 applicants having an overlapping native title determination. In dealing with the applications of these "party-applicants" Mansfield J observed (at [22]-[23]) that: "In my view, the Court has a discretion under s 84(5) to join each of the party-applicants as a party to the Kokatha claim notwithstanding that, as individuals, they are each asserting that their interests which are or may be affected by a determination of native title in the proceedings are apparently native title rights and interests. However, I do not consider that their claimed interests, if established, could provide another avenue to a determination of an entitlement to native title rights and interests in the claim area in their favour. I share the view of Emmett J in Munn at [8] to that effect. It is a view which Branson J also appears to have shared in Davis-Hurst v New South Wales Minister for Land and Water Conservation (NSW) (2003) 198 ALR 315. In my judgment the prescriptive structure in the Act for the making of an application for the determination of native title under s 61, with the procedural requirements of s 62, and, since the Native Title Amendment Act 1998 (Cth) (the 1998 amendments), the authorisation requirements under s 251B are clear. They provide the only vehicle for the positive determination of native title rights and interests. They require the assurance that the whole of the claim group has authorised the bringing of the claim through the authorised claimants. In Yarmirr v Northern Territory (unreported, Federal Court, Olney J, 4 April 1997) his Honour stressed the importance of compliance with those provisions. See also Quall v Risk [2001] FCA 378 at [67] . I do not regard the authorities relied upon by counsel for the party-applicants as being inconsistent with that view. In Western Australia v Ward [2000] FCA 191 ; (2000) 99 FCR 316, the remarks of Beaumont and von Doussa JJ at 369, at [192]-[193] were made in the context of an existing competing native title claim group at least adjoining the claim area under consideration and including an area partly overlapping the relevant claim area: see Note C to the Consent Determination in Attorney-General of the Northern Territory v Ward [2003] FCAFC 283 ; (2003) 134 FCR 16." 43 Recently in Moses v State of Western Australia , the Full Court (Moore, North and Mansfield JJ) in a considered dictum reinforced the view expressed in the Kokatha case. In Moses , the Kariyarra people had made a s 61 native title determination application which overlapped two small portions of the Ngarluma/Yindjibarndi determination application. The Kariyarra people were joined as respondents in the proceedings on the latter application and were represented by solicitors but, according to their Honours, apparently did not seek to be joined as applicants and did not seek to participate after the commencement of hearings before the primary judge. The Court went on (at [18]): "His Honour considered that it was nevertheless appropriate to make a determination in relation to the application of the Kariyarra people insofar as it overlapped the Ngarluma/Yindjibarndi claim, citing State of Western Australia v Ward [2000] FCA 191 ; (2000) 99 FCR 316 at [192] - [193] ( Ward (FC)): July 2003 reasons at [55]. In our view, it would not have been open to the learned primary judge to make a determination of native title over those overlapping areas in favour of the respondent Kariyarra people on the state of the evidence in this matter. A determination of native title must be made in accordance with the provisions of the NTA, including its requirements regarding proof of the composition of the claim group and proper authorisation of the named applicants. In circumstances where the Kariyarra people participated as respondents only and made no attempt to satisfy the learned primary judge that all of the requirements of the NTA had been met in respect of their overlap claim, it would not have been appropriate to nevertheless make a determination of native title in their favour: see also Kokatha Native Title Claim v South Australia [2005] FCA 836 ; (2005) 143 FCR 544 at [22] ; Munn v State of Queensland [2002] FCA 486."