Wharton on behalf of the Kooma People v State of Queensland (No 2) [2021] FCA 191

Between: Wayne Morris Wharton on behalf of the Kooma People (Applicant) 

and  

the State of Queensland (First Respondent), the Queensland South Native Title Services (Second Respondent), the Paroo Shire Council and others named in the Schedule (Third Respondent). 

Judge: Rangiah J  

Judgment:  

This decision concerns an application made by the State of Queensland to strike out an application for compensation for loss of Native Title by the Kooma People.  

Justice Rangiah’s decision in this case is important because it further clarifies the requirements that must be met for compensation for a loss of Native Title to be awarded. 

Background:  

This case followed the landmark decision in Northern Territory v Mr A.Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples (better known as the Timber Creek decision), in which the High Court outlined the principles which govern how to assess compensation for Native Title.  

This case was heard at the same time as Saunders on behalf of the Bigambul People v State of Queensland (No 2) [2021] FCA 190 because it concerned similar facts and issues [5]. 

Litigation History:  

The Kooma People filed an application for compensation for loss of Native Title on 18 December 2019 [6].  

The State made an application for the compensation application to be struck out because it failed to meet the requirements of s 61(5)(c) of the Native Title Act (Queensland) Act 1993 (NTA). In particular, the State argued that the compensation application failed to identify an act alleged to have extinguished or otherwise affected Native Title rights and interests. It also failed to identify a specific area in which the compensable act occurred [14]. 

The decision: 

Justice Ranaigh held that the Kooma People’s compensation application failed to identify:

• an act that extinguished or affected Native Title their rights and interests; and
• an area in which it was alleged that an identified act extinguished or otherwise affected the Native Title rights and interests of the Kooma People. 

The Kooma People proposed to amend their compensation application to include a compensable act and identify a specific area. Their proposal was denied because allowing such amendments would contravene s 64(1) of the NTA which prohibits the inclusion of any area of land or waters that was not covered in the original application [19]. 

As a result, Justice Ranaigh held that the Kooma People’s application for compensation must be struck out under s 84C(1) of the NTA [21]. 

This decision makes it clear that failing to identity a compensable act and/or a specific area can be fatal to Native Title compensation applications. 

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