Wharton on behalf of the Kooma People v State of Queensland [2003] FCA 790

Wharton on behalf of the Kooma People v State of Queensland [2003] FCA 790

Although the meeting of 27 and 28 February 1999 authorised Wayne Wharton to make the Wharton Application, the evidence did not establish that a process consisting of a resolution of members of the Kooma Corporation was a process of decision-making agreed to and adopted by the current descendants of the named apical ancestors who comprised the native title claim group. Wayne Wharton was therefore not shown to be authorised within s 251B(b), the Wharton Application did not comply with s 61, and it should be struck out under s 84C, subject to the parties being given an opportunity to consider the reasons before orders were made.

Jurisdiction
Australia
Judgment Date
18 June 2003
Procedural Posture
Native Title Determination Application; Application Under S 84 C of the Native Title Act 1993 (cth) to Strike Out / Reasons for Judgment on Strike Out Motion; Motion and Proceeding Stood Over
Outcome
Motion and proceeding stood over; the Court indicated the Wharton Application did not comply with s 61 and should be struck out, but deferred making further orders.
Legal Topics
['authorisation of Native Title Determination Application' 'native Title Claim Group' 'decision Making Process Agreed to or Adopted by Claim Group' 'strike Out Under S 84 C' 'transitional Provisions After 1998 Amendments to Native Title Act 1993 (cth)']
['native Title' 'federal Court Civil Procedure'] ['authorisation of Native Title Determination Application' 'native Title Claim Group' 'decision Making Process Agreed to or Adopted by Claim Group' 'strike Out Under S 84 C' 'transitional Provisions After 1998 Amendments to Native Title Act 1993 (cth)']

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Procedural Posture

Native Title Determination Application; Application Under S 84 C of the Native Title Act 1993 (cth) to Strike Out / Reasons for Judgment on Strike Out Motion; Motion and Proceeding Stood Over

Legal Issues

  1. 1 ['Whether Wayne Morris Wharton was authorised by the Kooma native title claim group to make the Wharton Application under s 61 of the Native Title Act 1993 (Cth).' 'Whether the authorisation relied on was given in accordance with a process of decision-making agreed to and adopted by the persons in the native title claim group for the purposes of s 251B(b).' 'Whether the Wharton Application did not comply with s 61 and should be struck out under s 84C.']

Ratio Decidendi

Although the meeting of 27 and 28 February 1999 authorised Wayne Wharton to make the Wharton Application, the evidence did not establish that a process consisting of a resolution of members of the Kooma Corporation was a process of decision-making agreed to and adopted by the current descendants of the named apical ancestors who comprised the native title claim group. Wayne Wharton was therefore not shown to be authorised within s 251B(b), the Wharton Application did not comply with s 61, and it should be struck out under s 84C, subject to the parties being given an opportunity to consider the reasons before orders were made.

Court Disposition

Motion and proceeding stood over; the Court indicated the Wharton Application did not comply with s 61 and should be struck out, but deferred making further orders.

Orders

  • ['The motion and the proceeding be stood over to 5 August 2003 before Emmett J.']