Foster on behalf of the Gunggari People #4 v State of Queensland

The Federal Court of Australia presided over an application by Foster on behalf of the Gunggari People #4 against the State of Queensland, concerning the admission of Mr. Wharton as a respondent party in a native title proceeding. Mr. Wharton sought to intervene in the proceedings, asserting that his interests as a Kooma man would be affected by the determination of native title rights over an area that includes Mount Moffatt. The Gunggari People opposed Mr. Wharton’s application, arguing that his interests were too narrowly defined and did not warrant his inclusion as a party in the proceeding.

The primary legal issues for the court to resolve were whether Mr. Wharton had demonstrated a sufficient interest for the purposes of section 84(5) of the Native Title Act 1993 (Cth) (NTA), whether this interest would be affected by a determination of native title, and whether it was in the interests of justice to join him as a party. The court had to weigh Mr. Wharton's claimed cultural and historical connection to the area against the potential delay and costs that his inclusion might impose on the Gunggari People’s native title determination process.

The court found that while Mr. Wharton had established a sufficient interest in the proceeding, he had not demonstrated that his interest would be affected by the determination of native title or that it was in the interests of justice to join him as a party. The court emphasised the broader impact that Mr. Wharton’s successful intervention could have on the Gunggari People’s native title rights, including further delays and wasted costs. The court concluded that the prejudice to the Gunggari People outweighed any benefit to Mr. Wharton, leading to the dismissal of his application.

The court ordered that Mr. Wharton’s amended interlocutory application, filed on 1 August 2019, be dismissed. This decision underscored the importance of balancing the interests of all parties involved in native title proceedings, particularly in determining who should be allowed to intervene as a party.