Case alert: native title service providers as interveners in compensation claims – Melville (obh of Pitta Pitta People) v Queensland [2025] FCA 753

In a recent Federal Court decision, the Court assessed the rules relating to native title service providers intervening in native title compensation claims.[1]

The relevant native title compensation claim has a complex history.[2] This includes a period where MPS Law accepted a referral from the Court to act on a pro bono basis.

This alert summarises the judgment as it relates to the role of native title service providers as interveners, pursuant to the Federal Court Rules 2011 (Cth) (the Rules).

What is the role of native title service providers (NTSPs)?

NTSPs are funded by the Australian Government under s 203FE of the Native Title Act 1993 (Cth) (the NTA) to perform the functions of a native title representative body in a particular region. Its functions include those described in ss 203BB to 203BJ of the NTA, including the following obligations:

  1. The identification of persons who may hold native title in the area for which it is the representative body.
  2. Promoting understanding among Aboriginal and Torres Strait Islanders in that area about matters relevant to the operation of the NTA.
  3. Consulting with Aboriginal or Torres Strait Islander communities that might be affected by matters, necessary in the performance of its functions.[3]

NTSPs have the facilitation and assistance functions referred to in s 203BB of the NTA. They include the provision of assistance to native title bodies corporate, native title holders and persons who may hold native title, including by representing them or facilitating their representation in a range of proceedings and mediations (including compensation applications). NTSPs also have the dispute resolution function described in s 203BF(1) of the NTA.[4]

NTSPs are often respondent parties to native title proceedings. In this case, however, the relevant NTSP did not seek to be joined as a respondent.[5]

What do the Rules say about intervening?

Rule 9.12 of the Rules provides that a person may apply to the Court for leave to intervene in a proceeding with such rights, privileges and liabilities (including as to costs) as the Court may determine. The power to grant leave is discretionary. The Court can consider any matters it considers relevant. In particular, the Court may assess whether the intervener’s contribution will be useful and different from the contribution of the parties to the proceeding. The Court may also assess whether the intervention might unreasonably interfere with the ability of the parties to conduct the proceeding as the parties wish.[6]

What did the Court say about the NTSP intervening in this case?

Justice Charlesworth concluded that the NTSP should not be allowed to intervene, in this instance. This was because there was uncertainty whether the limited scope of intervening was required.[7]  

In doing so, however, the Court made it clear that:

  1. It was not critical of the NTSP or individuals employed by the NTSP.[8]
  2. The desire to intervene was genuinely associated with the performance of NTSP functions.[9]
  3. Given the statutory functions of NTSPs, it is a reasonable expectation for NTSPs to persist with activities to fulfill statutory functions and should not be discouraged from doing so.[10]
  4. The motivation to intervene was sound and related to a legitimate concern,[11] particularly when a consent determination is made (including native title compensation consent determinations’, the Court needs to be satisfied that the agreement was entered into freely having been competently advised and represented.[12]
  5. There remained an outstanding issue relating to full and frank disclosure of all arrangements that may impact the compensation settlement, which may give rise to inconsistencies of interests.[13]

This decision helpfully highlights the rules and processes for NTSP involvement in native title proceedings, including native title compensation claims. This decision also serves to illustrate the broader complexity in any private litigation funding arrangements for native title compensation claims and the need for native title holders and registered native title body corporates to be fully aware of any claims against compensation settlements, pursuant to any funding arrangements.

This is general commentary only and is not legal advice. If you are unsure how this commentary may relate to you, seek legal advice.

For more information, contact us.  

[1] Melville (obh Pitta Pitta People) v Queensland [2025] FCA 753

[2] Above n 1 [17]. See, also, the summary of the facts at [29]-[105].

[3] Above n 1 [19].

[4] Above n 1 [20].

[5] Above n 1 [23].

[6] Above n 1 [12].

[7] Above n 1 [121].

[8] Above n 1 [129].

[9] Above n 1 [23].

[10] Above n 1 [129].

[11] Above n 1 [130].

[12] Above n 1 [126].

[13] Above n 1 [131]-[132].