Consideration
16 The ACDF is incorporated under the Associations Incorporations Act 1985 (SA) from 4 February 1993. Its membership is said to be
' … open to all Aboriginal people 18 years and over and their spouses and families and who are accepted as members as [sic] of the ACDF, by invitation of the council, and who agree with the objectives of the ACDF.'
Management of the ACDF on matters on policy is vested in the ACDF at its periodic meetings. Its day to day activities are the responsibility of a council elected at its annual general meeting. Its council comprises nine voting members, including its officers, all of whom are elected by a meeting of the ACDF. There may be co-opted members of its council, but they are not entitled to vote. Hence, membership of the ACDF, although theoretically open to all Aboriginal people aged 18 years or over, is dependent upon the invitation to membership being made by the council and the council's acceptance of the individuals who then apply for membership and provided that such persons agree with the objectives of the ACDF.
17 The objectives of the ACDF, according to its Constitution, relate to the regaining of traditional land by purchase or lease of 'Homelands Agreement', the preservation of traditional history and culture, the establishment of cultural and information centres, the development of learning of culture and heritage, the exploration of future conservation initiatives, and to provide opportunities to Aboriginal persons to participate in those activities, to develop their traditional expertise, and to promote their welfare and development. The objectives also include acting on behalf of Aboriginal people and organisations associated with the ACDF, and generally 'to promote the interests of Aboriginal people as they relate to the overall implementation of the policies of self-determination and self-management'.
18 In its mission statement, the ACDF indicates:
'The ACDF is a community organisation specifically created and incorporated in 1992 to provide support for Aboriginal Community and cultural Development Programmes across South Australia and elsewhere. Its [sic] main task is to assist in creating and implementing suitable programs for community initiatives that recognise the individual needs and resources of particular Aboriginal groups.'
The document describes the mission as:
'Facilitating integrated research, conservation and management of indigenous and non-indigenous heritage, natural eco-systems and the environmentally sustainable economic utilisation of these resources involving indigenous and non-indigenous local people, facilitating interpretation, education and a sense of sacred place and custodianships for the fragile eco-culture systems of the earth.'
19 The objects and purposes of the ACDF so identified are said to indicate that its interests may be affected by a determination in each of the 15 proceedings. It is not sufficient, however, simply to demonstrate the necessary potential for the interests of some one or more of the members of the ACDF to be affected. It must be the interests of the ACDF which are addressed: see per Black CJ in Arakwal at 8 and per Merkel J at 43. Bodies representing farmers in (Wooldridge in Gomilaroi), field and game interests, and mining interests (Harrington-Smith on behalf of The Wongatha People v State of Western Australia [2002] FCA 184) have been held to have insufficient interests to be joined as parties to applications for the determination of native title. The ACDF does not claim to carry out the functions of, or similar to those of, a representative body for any particular area under Part II of the NT Act (cf Munn v State of Queensland [2002] FCA 486; Bissett v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 365; Brierley on behalf of the Walbunja People v Minister for Land & Water Conservation (NSW) [2002] FCA 1209; Simms v Minister for Land and Water Conservation [2002] FCA 15; (2002) 193 ALR 257.
20 I do not discern simply from the Constitution of the ACDF and the statement of its mission and objectives that it has interests in the proceedings in which it wishes to become a party that may be affected directly by a determination in any of the proceedings. Its general functions and purposes will not be directly impaired by such a determination. To draw a conclusion to the contrary would require specific evidence about that. It is not a matter which should be the subject of speculation. The submissions on its behalf did not identify in any precise way how its performance of its functions, as discernable from its Constitution, may be affected by a determination in any of the proceedings, except in a remote or theoretical way. If one were to take, for example, the objective of preserving traditional history and culture, then determination of the existence of the claimed native title rights and interests would be consistent with and served by that determination. But, more importantly, the ACDF does not claim itself to enjoy native title rights and interests, or any other real and substantial interests, in the claim area in this or the other 14 matters in its own right. Such interests as it has are dependent upon, and exist only to the extent that, it has members who enjoy native title rights and interests in the claim areas. Its interests are self-declared, and dependent upon the attitude of those members who enjoy those interests. An association such as the ACDF does not qualify for party status in these applications simply by its establishment to enjoy, by the grant or consensus of the holder of native title rights and interests, the privilege of certain of those rights and interests. If, on the other hand, the claim to native title rights and interests in any of the matters is disputed by some one or more of the ACDF members, it is the individual member or members whose competing claim may be affected by the determination sought.
21 It is therefore necessary to address the particular claims made by the ACDF to determine the application.
22 As is self-evident, the summary of the ACDF submission is somewhat cryptic. It can only be understood by reference to the more general submission. The submission claims that there are legal, historical and environmental considerations relevant to the application by the ACDF to now be joined as a party. The legal considerations are themselves hard to understand, but in my view upon analysis do not demonstrate any relevant way in which the ACDF's interests may be affected by a determination in any of the proceedings. It is necessary to identify and address what interests it claims by reference to the 'legal' considerations to reach that conclusion. I shall address them in turn.
23 The ACDF claims that its interests may be relevantly affected because it is involved in securing equal protection under the law in the protection of indigenous traditional title so as to avoid contraventions of the Racial Discrimination Act 1977 (Cth). It is sufficient to observe that a sufficiently clear and direct interest involves more than asserting the role of ensuring the proper application of the law to indigenous people. The assumption of such a role does not demonstrate an 'interest' as that term is used in s 84(5). Nor does it demonstrate an interest in respect of a particular claim area, so that the determination of the claim may affect that interest. Nor, in this matter, is it shown that the determination of any of the claims may affect the ACDF's capacity to perform the function it has described.
24 The ACDF then asserts that the extinguishment of native title, or the non-recognition of claimed traditional title, does not mean that traditional Aboriginal title in land and traditional Aboriginal affiliations with land do not continue to exist. The claim, whether it be correct or not, cannot demonstrate a relevant interest for the purposes of s 84(5). The claim is not that the ACDF, whatever the determination in the several proceedings, itself has any claim to enjoy directly traditional aboriginal title in, or affiliations with, land. At best it is a derivative claim. Even if the proposition underlying the contention be correct, the relevant interest would lie with the individuals who would enjoy the traditional aboriginal title in, or affiliations with, the particular land which is the subject of the 14 applications.
25 The ACDF next asserts a relevant interest somehow arising under s 5(3) of the Administration and Probate Act 1999 (SA) (the A and P Act) as it has a particular function to facilitate inquiries to be pursued in respect of the 'forfeiture of land' by Aboriginals in South Australia, including specifically an estate in the claim area of the De Rose Hill native title determination application: see De Rose v State of South Australia [2002] FCA 1342. The approach is, in my judgment, misconceived. The A and P Act deals with the granting and revoking of probate and administration in South Australia, the vesting and administration of the estates, and distribution upon intestacy. The A and P Act is a consolidation of earlier legislation. Section 3(5) of that Act is included in the saving provisions following the repeal of the earlier legislation. It states that:
'All offences committed, and all liabilities, forfeitures, and penalties incurred or imposed, or liable to be imposed, before the passing of this Act, may be tried, punished, inquired into and enforced under this Act.'
I do not consider that s 3(5) of the A and P Act has any operation relevantly with respect to the Court's function in hearing and determining applications for the determination of native title made under s 61 of the NT Act. There has been no argument presented to support the proposition, even as a matter of generality, that it entitles any particular aboriginal person or persons in South Australia to use it as a vehicle to complain of the forfeiture of aboriginal native title rights and interests in land in South Australia. The matters with which the A and P Act deals do not support such a view. Even if it does, there is nothing to show that any person proposes to invoke that provision to pursue such a claim in respect of any of the claim areas in the 14 applications. Nor, in any event, is it shown even on an arguable basis that the ACDF, as distinct from particular aboriginal persons or groups, would have the standing to do so.
26 The next 'legal' contention of the ACDF is based upon the AH Act and the 'Pastoral and Crown Lands Act' (presumably the Pastoral Land Management and Conservation Act 1989 (SA)). It is claimed that those enactments provide for the preservation of rights in aboriginal peoples in South Australia to pursue their 'residual rights' and, in these proceedings, to ensure that the AH Act is not used to 'overrule Aboriginal tradition in terms of Aboriginal people's actions in relations to signs, objects and remains', and so as a means of giving s 37 of the AH Act its fullest effect. It is claimed that those rights may be adversely affected by possible (unspecified) amendments to the AH Act or by the proposed Natural Resources Management Bill 2003 (SA). It is also claimed that the feared or anticipated exercise of such legislative or executive powers in South Australia may contravene s 46 of the Trade Practices Act 1974 (Cth) by reason of the State of South Australia refusing 'to deal in trading of land where there are Aboriginal interests in delaying resolution of natural resource ownership issues'.
27 None of those contentions, assuming them to be substantively correct (it is not necessary to determine if that is the case) indicates that the ACDF on this application has any interest or interests which may be affected by a determination of any of the existing proceedings. It is unnecessary for me to discuss and consider the extent to which, if at all, the ACDF has legitimate interests in pursuing matters under those enactments in respect of those topics. It is clear that its pursuance of those matters, even if it is allowed to do so and has the standing to do so, do not involve interests relevant to the determination of native title rights and interests under the NT Act.
28 The next contention of the ACDF in support of its application is that, because the Letters Patent to the Colonisation Commissioners directed the recognition and non-interference with the occupation or employment of lands by the aboriginal persons in South Australia, so that aboriginal communities in South Australia maintained distinct proprietary rights over the whole of the lands in the then Colony of South Australia in the Aboriginal peoples of South Australia, and that such rights were then recognised, the ACDF should be allowed to assert such claims in these proceedings. It asserts the need to adopt that role because, it says, the resolution of these claims by the relevant native title claim groups and the ALRM and the State of South Australia, and such others as may be involved, through an indigenous land use agreement would amount to an unspecified breach of the NT Act because it would diminish the rights of the NT claim group.
29 Those complex propositions must fail. What underlies them, in reality, is the assertion that there are other aboriginal persons or groups who claim native title rights and interests in each of the claim areas (or part of the claim areas) of the 14 native title determination applications, or who assert that the authorisation of the claimants in each of the applications is not properly given under s 251B of the NT Act so that they may not enter into an indigenous land use agreement with respect to the native title rights and interests. If that be correct, the interests which may be affected by the determination of the applications are those of the particular aboriginal persons or groups. The interests are not those of the ACDF. That is not to say that the ACDF may not support such aboriginal persons or groups in serving to assert and protect their claimed interests. It may do so. But the ACDF itself does not have the interest sufficient to qualify itself for the status of a party in any of the proceedings under s 84(5) because it can, and wishes to, support those who may have such interests.
30 In fact in each of the applications in South Australia called the Barngarla application, the Mirning application and the Ted Roberts application (Matters SG 6011 of 1998, WA 6016 of 1998, and SG 6005 of 1998 respectively) it appears that persons identified as members of the ACDF are members of the relevant native title claim and, in the Barngarla application, some of the authorised claimants on behalf of the native title claim group.
31 The second category of claimed interest was said to arise from historical consideration. The historical considerations are said to be that the native title claim groups and the areas the subject of the 14 applications for determination of native title are based upon boundaries with which the ACDF and its members disagree. The members of the ACDF are, therefore, said to be disadvantaged in their ability to defend their boundaries and rights. The submission asserts that the ACDF "would be willing to provide substantial evidence to this effect". It has not done so on this application in respect of any particular application. The problem again confronting the ACDF is that, assuming that its members or certain of its members dispute the areas claimed by the designated claim groups in each of the applications, or assert overlapping and inconsistent rights over those claim areas, it is for those individuals or groups of individuals to assert their rights by seeking to become parties to each of the applications. The ACDF does not claim to enjoy the rights. At best it is acting as a representative or mouthpiece for those who claim that their rights or interests may be affected. It may do so. But the adoption of that role does not convert 'its members' claimed rights or interests into its rights or interests. It does not itself thereby have interests which may be affected by the determinations in all or any of the applications.
32 The third general area of asserted interests on the part of the ACDF is said to be environmental considerations. They are described as 'the assessment of data in other native title claims has been limited, especially with respect to boundaries' and that members of the ACDF have boundaries that are consistent with environmental and cultural parameters. The same observations must be made as those about the claimed interests of the ACDF arising from what it called historical considerations.
33 Reference should be made to the other material adduced by the ACDF. The status and composition of the RHA and of the PHA is not disclosed. Nor is the relationship of those entities to the ACDF. I infer they have some common membership. It may be that members of the RHA and the PHA claims native title rights and interests in certain of the claim areas, I suspect principally in part of the area of the Kaurna claim (Matter SG 6001 of 2000). Even without the obstacle of the ACDF being somehow removed from the RHA and the PHA, the same difficulty confronts it: such interests as may be affected by the determinations are those of the individual or groups of individual aboriginal persons and not those of the ACDF.
34 The material does demonstrate that the ACDF has an active role in promoting the articulation and understanding of the relationship of aboriginal persons to country, including by educative and eco-tourism programs. It has an interest in maintaining the integrity of those programs. It has an interest in furthering the benefits to aboriginal persons of intellectual property which they may own by reason of their traditional ownership of country. Underlying those claimed interests is the proposition that it thereby has the interest to assert differently constituted native title claim groups, or different claim areas, in the 14 applications. It says it needs to be able to do so to protect those claimed interests. But the claimed interests only exist to the extent to which it represents, or is able to deal with, the true native title claim groups in respect of the claim areas. The interests which it seeks to assert, therefore, are the interests of individual or groups of individual aboriginal persons different from the present native title claim groups. Those interests are not, in terms of s 84(5), its interests. They are the interests of the individual or groups of individual aboriginal persons. Those individual or groups of individual persons are the persons who, if they wish to do so, may seek to become parties to the applications. The ACDF does not acquire their interest by such persons becoming its members. Nor does it acquire their interests by such persons wishing it to protect or promote their interests: see e.g. per Lindgren J in Harrington-Smith at [2].
35 That does not mean, as I said earlier in these reasons, that the ACDF may not assist such persons in seeking to protect or promote their interests in each or any of the 14 applications. It may do so, in a variety of ways. But it is those persons who (on the ACDF material) have the interests to which s 84(5) may refer. Whether they do so would need to be addressed by separate applications in each proceeding, properly supported by affidavit or other admissible material. The application would need to explain the particular interest or interests which is or are said to be possibly affected by the determination in respect of that claim or claim area with some precision, and how the determination may affect that interest or those interests: see per Merkel J in Rubibi v State of Western Australia [2002] FCA 876 at [17], [18], [22] and [23].
36 I am therefore not satisfied that the ACDF itself, notwithstanding its concern to advance, promote and protect the interests of its members and more widely the aboriginal communities in South Australia, has any interests which may be affected by a determination in any of the 14 applications. Its contentions do not identify any particular claimed native title right or interest in respect of any of the claim areas which, if determined to exist, might affect any of its interests in the sense explained in the Arakwal case.
37 The application by the ACDF to be joined as a party to each of the proceedings under s 84(5) in each instance is therefore refused.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.