Douglas on behalf of the Kabi Kabi First Nation Traditional Owners Native Title Claim Group v State of Queensland

In the Federal Court of Australia, Douglas on behalf of the Kabi Kabi First Nation Traditional Owners Native Title Claim Group sought to determine the native title rights of the Kabi Kabi people over certain lands. The State of Queensland was already a party to the proceedings, and Mr Luke Barrowcliffe and Ms Katherine Barrowcliffe sought to join the proceedings as respondents. The applicants claimed to have traditional rights and responsibilities in the area of dispute between the Kabi Kabi and the Butchulla people. The applicants argued that the Butchulla people's two consent determinations did not encompass all the Butchulla land and sea, and that their traditional rights and responsibilities were in the disputed area.

The central legal issue before the court was whether the applicants' interests could be affected by a determination of native title in the proceedings, and if so, whether it was in the interests of justice to allow their joinder as respondents. The applicants needed to satisfy the requirements of section 84(5) of the Native Title Act 1993 (Cth). The court needed to determine whether the applicants had a genuine interest, whether that interest could be affected by a determination in the proceedings, and whether, in the exercise of its discretion, the court should join the applicants as parties.

The court found that the applicants did have an interest in the disputed area, and that their interest could be affected by a determination of native title in the proceedings. The court was satisfied that the applicants' claims were genuine and that their traditional rights and responsibilities were in the area of dispute. The court also found that it was in the interests of justice to allow the applicants to join the proceedings, even though their application was late. The court exercised its discretion under section 84(5) of the Native Title Act to join the applicants as respondents, but limited their joinder to the area of dispute.

The court ordered that Mr Luke Barrowcliffe and Ms Katherine Barrowcliffe be joined as respondents to the proceedings to the extent that they assert an interest in the area bounded in pink on the map in Annexure “LB1” on page 31 of the affidavit of Luke Barrowcliffe filed 7 March 2023. The court's decision ensures that the applicants' interests will be considered in the determination of native title rights over the disputed area, and that the proceedings will be more informed and just.