Wakka Wakka People #2 v State of Queensland

[2005] FCA 1578

FEDERAL COURT OF AUSTRALIA

Wakka Wakka People # 2 v State of Queensland [2005] FCA 1578

Statutes

Native Title Act 1993 (Cth) s 84(5)

Cases

Byron Environment Centre Incorporated v The Arakwal People (1997) 78 FCR 1 Followed

WAKKA WAKKA PEOPLE # 2 v STATE OF QUEENSLAND AND OTHERS
QUD 6032 OF 1999

KIEFEL J
BRISBANE
4 NOVEMBER 2005

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 6032 OF 1999

BETWEEN:	WAKKA WAKKA PEOPLE # 2 APPLICANT
AND:	STATE OF QUEENSLAND AND OTHERS RESPONDENTS
JUDGE:	KIEFEL J
DATE OF ORDER:	4 NOVEMBER 2005
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The application of Mr Russell Daniel Bellear to be joined as a party in these proceedings be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 6032 OF 1999

BETWEEN:	WAKKA WAKKA PEOPLE # 2 APPLICANT
AND:	STATE OF QUEENSLAND AND OTHERS RESPONDENTS

JUDGE:	KIEFEL J
DATE:	4 NOVEMBER 2005
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. Mr Russell Daniel Bellear applies to be joined to these proceedings as a party.  He says that he is a great grandson of the woman Yarga, who was a descendant of the Wakka Wakka People, who are traditional owners of lands around Gayndah.  She was removed from her country to Dalby.  He believes there are now over 300 descendants of Yarga.  He says that the descendants of Yarga ‘may have rights and interests in Wakka Wakka country that are not included in the present claim group description’.  He says that his family, of which he is the senior representative, should be included in the decision-making process of this claim and have not been.  He is worried that if they are not consulted, their rights and interests in the claim will be seriously impaired.

2. The claim was filed in November 1999.  Neither Mr Bellear’s family, nor his ancestors, are referred to in the description of the claim group in the amended application.  There are some sixteen named applicants and seventy-nine respondents.  I am told that some indigenous land use agreements have been the subject of discussion, but nothing has been finalised.  The matter has not progressed for some time.  I am aware from previous directions hearings that an application to remove some of the applicants has been mooted, as has an application to strike the claim out for failure to prosecute it.

3. Mr Bellear brings his application pursuant to s 84(5) of the Native Title Act 1993 (Cth) which provides:

   ‘The Federal Court may at any time join any person as a party to the proceedings, if the court is satisfied that the person’s interests may be affected by a determination in the proceedings’.

4. In Byron Environment Centre Incorporated v The Arakwal People (1997) 78 FCR 1 (‘Arakwal People’s case’), it was held that whilst an interest for the purposes of section 84(5) does not need to be proprietary, legal, or equitable in nature, the interest must have some logical and material connection with the subject land and be capable of clear definition, not indirect or lacking in substance. The interest must be of such a character that it may be affected in a demonstrable way by a determination of native title on that interest.

5. Mr Bellear does not identify an interest of the kind referred to in the Arakwal People’s case.  It is not even apparent from the material he has provided and from what he has explained that he and his family are of the Wakka Wakka People.  He does not explain how Yarga is to be taken to be a Wakka Wakka person, how his family are Wakka Wakka People, or their connection with the land in question.  The interest claimed is not even regarded as certain, for he simply says that his family ‘may’ have rights and interests in the Wakka Wakka country.

6. It is true, as Ms O’Brien appearing pro bono for Mr Bellear points out, that it is not for the Court on the hearing of this application to determine whether Mr Bellear’s assertion is correct.  Nevertheless, he has to show a prima facie case in relation to an interest, in the sense referred to in the Arakwal People’s case.  The application should be refused on that basis.

7. If Mr Bellear’s interest had been properly particularised and was explicable I would, in any event, be inclined to refuse the application on discretionary grounds.  It could not be said that his application, if it succeeded and he was joined, would delay the proceedings given their history.  Nevertheless, no explanation is offered for his delay in bringing this application.  It is not suggested that critical genealogical information was only recently received by him.  He has only made one approach to the National Native Title Tribunal and one to one member of the applicant.  No details are provided of approaches alleged to be made to the claim group’s representatives. 

8. In conclusion, Mr Bellear has not identified an interest of the kind to warrant joinder. 

9. For these reasons, the application will be dismissed. 

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate:

Dated:             4 November 2005

Solicitor for Mr Bellear:	Ms C O’Brien
Counsel for the Applicants:	Mr AM Preston
Solicitor for the Applicants:	Central Queensland Land Council
Solicitor for the Respondent:	No Appearance
Date of Hearing:	4 November 2005
Date of Judgment:	4 November 2005