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Australian Indigenous Law Reporter |
13 October 1995, Melbourne
Aboriginal and Torres Strait Islanders - Native Title - Application for a Determination of Native Title ss. 68 and 84 of Native Title Act - Standing - Whether a person's interests are affected.
Words and Phrases: 'person's interests'
Held:
(1) The definition of 'interest' in s. 252 of the Act did not apply to the question of whether a 'person's interest may be affected' in s. 68 and subs. 84(2) of the NTA.
(2) Both Graeme McPherson and the Victorian Field and Game Association had interests which may be affected and were entitled to be given leave to become parties to the application.
On 13 October 1995, I made orders granting leave to Graeme Ross McPherson (McPherson) and Victorian Field and Game Association Incorporated (the Association) to be joined as parties to this proceeding. At the time, after hearing counsel for the two parties seeking to be joined, and there being no opposing submissions from any of the other parties then appearing I said to counsel:
I am convinced that it is appropriate that each of the two applicants you represent ought to be joined as parties. I think because it is an important matter which is going to involve the Court from time to time, and indeed under the proposals recently - or the outline of proposals recently circulated by the Attorney-General's Department, it is likely that if amendments are made to the Act the Federal Court will be dealing in every case with applications to be joined as parties in future.
It would be appropriate that I prepare written reasons, and I will do that at the earliest possible time, and publish and circulate them to those interested. I will, today, make the order that Graeme Ross McPherson and the Victorian Field and Game Association Incorporated, be joined as parties to the application.
(T pp 33-4).
I now publish my reasons.
This proceeding is an application for a determination of native title made pursuant to the Native Title Act 1993 (Commonwealth) (the Act). Initially the application was made to the Native Title Registrar (s. 61) and following acceptance of the application (subs. 63(1)), the President of the National Native Title Tribunal (the Tribunal) directed the holding of a conference of the parties or their representatives to help in resolving the matter (subs. 72(1)). That conference, which extended over a considerable period of time, was presided over by a Deputy President of the Tribunal (Gray J). At the end of the conference, in the absence of advice that the parties had reached agreement as to the terms of a determination of the Tribunal in relation to the application (s. 73), the Native Title Registrar lodged the application in the Federal Court (s. 74). The matter is now being dealt with as a proceeding in the Victorian District Registry of the Court.
It is appropriate that something should be said about the manner in which a person may become a party to the Federal Court proceeding. First, it is necessary to refer to the provisions relating to parties to the application prior to it being referred to the Federal Court. The provisions of ss. 66, 68 and 69 so far as they are relevant to this question are set out below:
66. (1) If an application is accepted under section 63, the Registrar must:
(a) give notice of the application to all persons whose interests may be affected by a determination in relation to the application; and
(b) ...
(2) The Registrar is taken to have given notice to all persons whose interests may be affected by a determination in relation to an application if the Registrar:
(a) gives notice containing details of the application to:
(i) the area native title claimant (if any) in relation to the area covered by the application; and
(ii) the Commonwealth Minister; and
(iii) if any of the area covered by the application is within the jurisdictional limits of a State or Territory - the State Minister or Territory Minister for the State or Territory; and
(iv) any registered native title body corporate in relation to any of the area covered by the application; and
(v) any person who holds a proprietary interest in any of the area covered by the application, being an interest that is registered in a register of interests in relation to land or waters maintained by the Commonwealth, a State or a Territory; and
(vi) any representative Aboriginal/Torres Strait Islander body for any of the area covered by the application; and
(b) notifies the public in the determined way of the application.
(3) A notice under subsection (2) must also state that:
(a) if the application is a non-claimant application ... or
(b) in any other case - a person who wants to be a party in relation to the application must notify the Registrar, in writing, within the period of 2 months starting on the day the notice is given.
(4) ...
68. (1) The applicant is a party in relation to the application.
(2) Another person is a party in relation to the application if:
(a) the person is covered by any of subparagraphs 66(2)(a)(i) to (vi) or the person's interests may be affected by a determination in relation to the application; and
(b) the person notifies the Registrar, in writing, within the period specified in the notice under section 66, that the person wants to be a party in relation to the application.
69. (1) If it is necessary for the purposes of this Division to decide whether the interests of a person may be affected by a
determination, that matter is to be decided by the Tribunal and, if the Tribunal decides that the interests of a person may be affected, the decision of the Tribunal is conclusive.
(2) For the purposes of making a decision under subsection (1), the Tribunal must be constituted by a presidential member.
In the course of the s. 72 conference, McPherson and the Association each claimed standing as a party to the application but in each case Gray J refused to accord that recognition on the ground that he was not satisfied that their respective interests may be affected by a determination in relation to the application (subs. 68(1)(b)). (Both later appealed to the Federal Court pursuant to s. 169(4) but the appeals had not been heard by the time the native title application was lodged with the Court pursuant to s. 74 and have since been discontinued).
The provisions of Part 4 of the Act (ss. 80-94) apply in proceedings in relation to applications lodged with the Federal Court under s. 74 (s. 80).
Section 84 provides:
84. (1) The persons who were parties under section 68 in relation to the application are parties.
(2) A person may seek leave of the Federal Court to be joined as a party to proceedings if the person's interests are affected by the matter or may be affected by a determination in the proceedings.
The motions presently under consideration are brought pursuant to subs. 84(2) and raise the issue of whether the interests of those seeking leave to be joined as a party may be affected by a determination in the proceedings. To resolve this issue it is necessary to consider the true construction of subs. 84(2) and to apply the subsection to the facts established in each case. The construction issue relates to the meaning of the words 'the person's interests'. But it is important first to understand what type of determination the Court can make in the proceedings in order to assess whether any relevant interests may be affected by such a determination.
In this case the proceedings relate to an application made pursuant to subs. 13(1) for a determination of native title in relation to an area for which there is no approved determination of native title. The term 'determination of native title' is defined in s. 225 thus:
225. A 'determination of native title' is a determination of the following:
(a) whether native title exists in relation to a particular area of land or waters;
(b) if it exists:
(i) who holds it; and
(ii) whether the native title rights and interests confer possession, occupation, use and enjoyment of the land or waters on its holders to the exclusion of all others; and
(iii) those native title rights and interests that the maker of the determination considers to be of importance; and
(iv) in any case - the nature and extent of any other interest in relation to the land or waters that may affect the native title rights and interests.
In the Tribunal, the presiding member took the view that the words 'the person's interests' in subs. 68(2)(a) referred to interests in relation to land or waters, a concept which is defined in s. 252 as follows:
'interest', in relation to land or waters, means:
(a) a legal or equitable estate or interest in the land or waters; or
(b) any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with:
(i) the land or waters; or
(ii) an estate or interest on the land or waters; or
(c) a restriction on the use of the land or waters, whether or not annexed to other land or waters;
Despite the slight difference in form, subs. 84(2) raises the same question of construction (at least so far as is presently relevant) as subs. 68(2)(a) namely whether it is necessary, before a person can be joined as a party, for that person to have an interest in relation to land or waters (as defined) which may be affected by a determination of native title.
Neither McPherson nor the Association claims to have a relevant interest in relation to the land or waters but nevertheless each claims to have interests that may be affected by a determination in the proceedings.
In my opinion, a person does not have to establish an interest in relation to land or waters (as defined) in order to be granted leave to be joined as a party pursuant to subs. 84(2). I have arrived at this view after consideration of the following matters:
First, subs. 84(2) makes no reference to an interest in relation to land or waters. It specifically identifies the relevant interests as those of the person concerned without any qualification. Where appropriate, elsewhere in the Act Parliament has chosen to use the term 'interests in relation to land or waters' (e.g. subs. 19(2)(b), 21(1)(a), 21(3), 26(2)(d), 62(1)(b)) but has not used that term in subs. 66(1)(a), 66(2), 68(2)(a), 69(1), 84(1) and 169(3) where the terms 'person's interests' or 'interests of the person' are used. As a matter of construction it can be inferred that if Parliament had intended subs. 84(2) to refer to a person's interests in relation to land or waters those words would have been used. The only reasonable conclusion is that the section was not intended to be restricted to cases in which a person seeking to be joined as a party could establish that that person has an interest in relation to land or waters which may be affected by a determination in the proceedings.
Second, a determination of native title may include a determination as to
whether the native title rights and interests confer possession, occupation,
use and enjoyment of the land or waters on its holders to the exclusion of all
others
(subs. 225(b)(ii)). A person may habitually use and/or enjoy land or
waters without necessarily having any right or title to do so (e.g. by the mere
acquiescence or licence of the title holder) but could be prevented from so
doing should it be determined that the native title holders are entitled to the
use and enjoyment of the land or waters to the exclusion of all others. As a
matter of ordinary language, it can readily be said that the interests of an
habitual user of land or waters may be affected if the native title holders
insist on exercising exclusive use or enjoyment of the land or waters. This
reasoning leads to the conclusion that the legislative intention expressed in
subs. 84(2) is consistent with the literal meaning of the words used.
It will be a question of fact in each case whether or not a person's interests may be affected by a determination of native title. It is necessary therefore to consider the evidence advanced in support of each of the motions presently before the Court.
McPherson was born in 1951 in Mooroopna which is within the general area of the land and waters in respect of which the applicants claim native title (the claim area). Apart from a period between 1968 and 1980 when he was studying and working in Melbourne and London, he has lived all his life in the Shepparton district, which is also within the general area of the claim area. He is currently the joint managing director and editor-in-chief of a publishing business centred in Shepparton which publishes 12 newspapers throughout the Goulburn Valley and Southern Riverina.
The affidavit filed in support of McPherson's motion contains a detailed description of various recreational activities in which he engages in the claim area. It is not necessary to repeat all of the details. His activities include fishing, hunting ducks, collecting yabbies, collecting wood, camping, water skiing and related boating activities. He is also a keen bird watcher. The fish caught, the ducks hunted and the yabbies collected are used for personal consumption by himself and his family. The wood collected is used for fuel. To the extent necessary, he holds appropriate licences which entitle him to engage in the various activities described.
Apart from his recreational pursuits, McPherson is actively engaged in various conservation and environmental activities particularly in areas in and around the Goulburn and Broken Rivers. He is a member of the Broken River Management Board and the Lower Goulburn River Management Authority.
In his affidavit he says (pars 22 and 23):
22 By reason of the activities referred to in (previous paragraphs) I have a strong and continuing attachment and commitment to the land and associated waterways and wetlands in and around the northern rivers and their flood plains. For most of my life and particularly for the past fourteen years, these areas have been the primary focus of and venue for most of my recreational and sporting interests and my community service interests. I desire to maintain my commitment to the environmental protection and conservation of these areas and to the flora and fauna within them. Moreover, my family and I to a significant extent rely on my duck hunting, fishing and yabbying activities to provide us with wholesome, natural and healthy food to eat, which food is free from preservatives and additives. We eat the fish or wild duck which I have caught from (areas within the claim area) at least twice a week and more often during seasonal abundance.
23 I desire to continue to engage in each of the activities (discussed above) without additional let, hindrance or other restriction not currently imposed on me and I am concerned that if a determination in these proceedings is made in favour of the members of the Yorta Yorta Aboriginal Community, my rights to use the areas of the claimed land in the manner referred to (above) and my interests in or in relation to those areas may be abrogated, restricted, diminished or otherwise detrimentally affected.
Having regard to the nature and extent of his use of, and involvement with, parts of the claim area I am satisfied that if a determination of native title is made in favour of the applicants in relation to the parts of that area referred to in his affidavit, McPherson may be unable to continue to engage in the various pursuits he has described to the same extent as he is presently able to do. I am satisfied that he has a genuine desire to continue his present lifestyle and that a determination of native title may affect his ability to do so. In my opinion he has established that his interests may be affected by a determination in this proceeding and accordingly it is appropriate that he be given leave to be joined as a party to the proceeding.
The Association was established in 1958 and incorporated in 1985. Its current membership is about 5,000 statewide. It has 44 branches or affiliates which operate in various regions in Victoria. In and around the claim area there are 8 branches with a total membership of about 643. About 4,500 of the members of the Association hold game licences under the Wildlife Act 1978 (Vic) and the Wildlife (Game) Regulations 1990 which licences entitle them to hunt for and take game from areas including areas within the claim area.
The Association claims to represent the recreational, hunting and sporting shooting interests of the members of its branches and affiliates and all Victorian game hunters and sporting shooters. It says that through its branches, it has been dedicated to the encouragement and promotion of the conservation of game and wildlife and the conservation and preservation of their wetland habitats throughout Victoria including those located within and adjacent to the claim area. To this end, the major activities of the Association have included providing assistance, training and education to the members of its branches and affiliates in all aspects of hunting for game throughout Victoria and assisting and co-ordinating the activities of the Association's branches and affiliates in relation to wetland conservation, the education and training of game hunters in all aspects of responsible game hunting, the protection of the environment in which such hunting is carried out and the promotion of clay target and other forms of competitive shooting.
In an affidavit filed in support of the Association's motion sworn by Ian Bruce McLachlan, the State Secretary of the Association, considerable detail in relation to the activities of the 8 branches in and around the claim area is set out. It is unnecessary to canvass this evidence in detail. It establishes that those activities have been consistent with the broad statement of the Association's functions and interests as expressed in the preceding paragraph. It is said that the Association is concerned that its interests and those of the members of its branches may be adversely affected by a determination in this proceeding. In particular it is said that the Association is concerned that a determination may lead to a curtailment, restriction of or an interference with the rights which it, its branches and affiliates and their members currently enjoy in relation to those parts of the claim area in which game hunting and related conservation and recreational activities presently are carried on.
I am satisfied that the concerns expressed above are real concerns and that there is potential for the presently legitimate pursuits of the Association and of its members to be curtailed in the event of a determination of native title being made in this proceeding. The interests of the Association are obviously inextricably bound up with those of its branches and affiliates and of the individual members thereof. The interests of the Association may indeed be affected by a determination in this proceeding and accordingly it is appropriate that leave be granted to the Association to be joined as a party.
The conclusion I have reached in these matters is based upon my view of the construction of the relevant provisions of the Act. I have not found it necessary to look to extrinsic material or to other similar legislation to assist in the construction of the Act. My failure to refer to many aspects of the detailed and persuasive submissions advanced by Mr Hiley QC who appeared as senior counsel for McPherson and the Association does not in any way indicate that I have ignored same [sic] nor that I have formed a contrary view to those advocated by him. I am satisfied that the answer to the construction question is to be readily found within the statute itself. l