Gamogab v Akiba

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.