Gamogab v Akiba

Case [2007] FCAFC 74

FEDERAL COURT OF AUSTRALIA

Gamogab v Akiba [2007] FCAFC 74

CORRIGENDUM

PENDE GAMOGAB v LEO AKIBA, GEORGE MYE, THE STATE OF QUEENSLAND AND COMMONWEALTH OF AUSTRALIA

QUD 361 OF 2006

KIEFEL, SUNDBERG, GYLES JJ
18 JULY 2007 (corrigendum 21 august 2007)
BRISBANE


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD 361 OF 2006
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

PENDE GAMOGAB
Appellant

AND:

LEO AKIBA
First Respondent

GEORGE MYE
Second Respondent

THE STATE OF QUEENSLAND
Third Respondent

COMMONWEALTH OF AUSTRALIA
Fourth Respondent

JUDGES:

KIEFEL, SUNDBERG, GYLES JJ

DATE OF ORDER:

18 JULY 2007

WHERE MADE:

BRISBANE

CORRIGENDUM

1.In paragraph [52], delete “provides” and insert “provided”.

2.In paragraph [52], after “as follows”, add “at the time of the primary decision”.

3.In the quotation in paragraph [52], delete “and it is in the interests of justice to do so”.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment of the Honourable Justice Gyles.

Associate:

Dated:       21 August 2007


FEDERAL COURT OF AUSTRALIA

Gamogab v Akiba [2007] FCAFC 74

NATIVE TITLE – joinder of respondent – where national of Papua New Guinea – refusal on discretionary grounds – nature and extent of discretion where interests may be affected by native title determination – whether exercise of discretion miscarried – where interests not recognised under Torres Strait Treaty – whether political question involved for court – whether claim justiciable – whether interest properly identified and shown to be affected – possible relevance of Torres Strait Act

PRACTICE AND PROCEDURE – appeal from the exercise of a discretion – nature and extent of discretion – discretion not at large – discretion miscarried

Federal Proceedings (Costs) Act 1981 (Cth)

Native Title Act 1993 (Cth) ss 66, 84, 85A, 223, 224, 225

Torres Strait Fisheries Act 1984 (Cth) ss 3, 8

Torres Strait Treaty (Miscellaneous Amendments) Act 1984 (Cth)

Treaty Between Australia and the Independent State of Papua New Guinea concerning Sovereignty and Maritime Boundaries in the area between the two Countries, including the area known as Torres Strait, and Related Matters, signed on 18 December 1978 (Sydney).  (1978) Aust TS 1985 No 4. (entered into force 15 February 1985) Articles 2,3,4,10,11,12,13

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Cited

Akiba & Others on behalf of the Torres Strait Regional Seas Claim People v State of Queensland(No 2) (2006) 154 FCR 513 Reversed
Akiba & Others on behalf of the Torres Strait Regional Seas Claim People v State of Queensland (No 3)[2007] FCA 39 Cited

Bishop v Bridgelands Securities (1990) 25 FCR 311 Cited

Buttes Gas & Oil Co v Hammer (No 3) [1982] AC 888 Applied

Byron Environment Centre Inc v The Arakwal People (1997) 78 FCR 1 Cited

E I Du Pont De Nemours & Co v Commissioner of Patents (No5) (1989) 87 ALR 491 Cited

Gerhardy v Brown (1985)…

Continue reading Gamogab v Akiba

Sign in free to access the full text

Details
AGLC
Gamogab v Akiba [2007] FCAFC 74
Case
[2007] FCAFC 74
Decision Date

CaseChat Overview and Summary

The case of Gamogab v Akiba involved the appellant, Mr Gamogab, seeking to be joined as a party to a native title determination over the Torres Strait regional Claim Area, despite being a Papua New Guinean national residing in PNG. The Federal Court was required to determine whether Mr Gamogab had an interest within the meaning of s 84(5) of the Native Title Act 1993 (Cth) that would be affected by a native title determination, and if so, whether he should be joined as a party. His Honour considered whether the common law could recognise the rights and interests of Mr Gamogab as a traditional inhabitant in the Claim Area, and whether those rights and interests would be affected by a native title determination over the sea.

His Honour noted that an interest need not be proprietary or legal or equitable in nature, but must not be indirect, remote or lacking in substance. He observed that interests of an emotional, conscientious, ideological or intellectual kind would not be sufficient. His Honour referred to the decisions in Byron Environment Centre Inc v The Arakwal People and Kokatha Native Title Claim v South Australia & Others, which established that the rights and interests of non-claimant indigenous persons who have traditional rights and interests in the area of the application for a determination of native title may be relevant to the determination of the claim. His Honour held that it was not beyond the bounds of possibility that the common law could recognise the rights and interests of Mr Gamogab, as a traditional inhabitant in the Claim Area, and that such rights and interests might limit or qualify the native title rights and interests of Torres Strait Islanders.

His Honour also held that the interests asserted by Mr Gamogab would be affected by a native title determination over the sea, as a 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. His Honour did not express an opinion on whether Mr Gamogab’s asserted rights and interests as a traditional inhabitant did in truth exist in the Claim Area. His Honour concluded that Mr Gamogab was eligible for joinder as a party, and that the appeal should be allowed, the order dismissing the application for joinder should be set aside, and the matter should be remitted to the primary Judge for determination as to whether terms should be imposed upon joinder of the appellant and, if so, what those terms should be.

FINAL ORDERS:
1. The appeal is allowed.
2. The order dismissing the application for joinder is set aside.
3. The matter is remitted to the primary Judge for determination as to whether terms should be imposed upon joinder of the appellant and, if so, what those terms should be.

Orders

Orders of the court

1. The appeal is allowed.

2. The order dismissing the application for joinder is set aside.

3. The matter is remitted to the primary Judge for determination as to whether terms should be imposed upon joinder of the appellant and, if so, what those terms should be.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KIEFEL, SUNDBERG, GYLES JJ
His Honour was of the view that the appellant and his group may have an interest within the meaning of s 84(5). His Honour observed that an interest need not be proprietary or legal or equitable in nature, but must not be indirect, remote or lacking in substance. It will not include interests of an emotional, conscientious, ideological or intellectual kind: Byron Environment Centre Inc v The Arakwal People (1997) 78 FCR 1. His Honour also referred to the decision in Kokatha Native Title Claim v South Australia & Others (2005) 143 FCR 544, which involved Australian indigenous persons who were not themselves claimants, but who had traditional rights and interests in the area of the application for a determination of native title. Mansfield J said in that case (at [24]) that, whilst there could not be a determination of native title rights and interests of those seeking to be joined as parties: ‘… 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.’ In the view of his Honour the primary Judge, it was not beyond the bounds of possibility that the common law could recognise the rights and interests of a PNG national living in PNG who is a traditional inhabitant in a Claim Area. The NTA itself however would not permit of a determination of native title with respect to those rights. His Honour went on:‘35.… 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.’ His Honour then turned to the second question posed by s 84(5), whether that interest would be affected by a native title determination: ‘36 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.’

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL, SUNDBERG, GYLES JJ

Full text does not contain this section.