Bissett v Minister for Land and Water Conservation for the State of New South Wales

REASONS FOR JUDGMENT 1 An application has been made pursuant to ss 84(5) and 84(7) of the Native Title Act 1993 (Cth) ("the Act") by the New South Wales Aboriginal Land Council ("NSWALC") to withdraw as a party from these proceedings and for another representative body, the New South Wales Native Title Services Limited ("NTS") to be joined as a party to the proceedings. The application arises because the status of NSWALC as the Native Title Representative Body ("NTRB") for New South Wales was withdrawn at its own request by the Federal Minister on 6 December 2001. 2 By letter dated 8 January 2002, the Aboriginal and Torres Strait Islander Commission ("ATSIC") advised that it had decided to grant funds to NTS to assist it in undertaking approved activities. Those activities are summarised as follows: "To enable the Grantee to perform, in respect to the specified area for which there is no recognised body, that is the state of NSW and the Australian Capital Territory, all the functions of a representative body as identified in s203B of the Native Title Act 1993 (NTA). The Grantee must carry out its functions and exercise its powers in accordance with s203B of the NTA and its strategic plan as agreed with ATSIC." 3 The completion date for these activities is 30 June 2002. 4 The NTS is a body corporate formed specifically to carry out the functions of a NTRB in New South Wales.

Relevant legislation 5 Section 84 of the Act relevantly provides: "(1) This section applies to proceedings in relation to applications to which section 61 applies. (2) The applicant is a party to the proceedings. (3) Another person is a party to the proceedings if: (a) any of the following applies: (i) the person is covered by paragraph 66(3)(a); (ii) the person claims to hold native title in relation to land or waters in the area covered by the application; (iii) the person's interests may be affected by a determination in the proceedings; and (b) the person notifies the Federal Court, in writing, within the period specified in the notice under section 66, that the person wants to be a party to the proceeding. .. (5) The Federal Court may at any time join any person as a party to the proceedings, if the Court is satisfied that the person's interests may be affected by a determination in the proceedings. (5A) If: (a) a person wants to become a party to the proceedings; and (b) the Federal Court is satisfied that the person's interests may be affected by a determination in the proceedings merely because the person has a public right of access over, or use of, any of the area covered by the application; the Court: (c) may make appropriate orders to ensure that the person's interests are properly represented in the proceedings; but (d) need not allow more than one such person to become a party to the proceedings in relation to each area covered by such a public right of access or use. (6) In addition to any other rights to withdraw from the proceedings, any party to the proceedings, other than the applicant, may, at any time before the first hearing of the proceedings starts, cease to be a party by giving written notice to the Court. (7) In addition to any other rights to withdraw from the proceedings, any party to the proceedings, other than the applicant, may, with the leave of the Federal Court, cease to be a party. (8) The Federal Court may at any time order that a person, other than the applicant, cease to be a party to the proceedings. …" (Emphasis added) 6 Section 203B of the Act provides: "(1) A representative body has the following functions: (a) the facilitation and assistance functions referred to in section 203BB; (b) the certification functionsreferred to in section 203BE; (c) the dispute resolution functionsreferred to in section 203BF; (d) the notification functionsreferred to in section 203BG; (e) the agreement making functionreferred to in section 203BH; (f) the internal review functionsreferred to in section 203BI; (g) the functions referred to in section 203BJ and such other functions as are conferred on representative bodies by this Act. … (4) A representative body: (a) must from time to time determine the priorities it will give to performing its functions under this Part; and (b) may allocate resources in the way it thinks fit so as to be able to perform its functions efficiently; but must give priority to the protection of the interests of native title holders." (Emphasis in original) 7 Sections 61-68 provide for the making of a native title application. On the making of an application, the Registrar must give details of the application to representative bodies for the area covered by the application together with other documents relating to the application: see ss 66(2A) and 66(3)(a)(iii) of the Act. 8 Section 66(3) relevantly provides: "66(3) Subject to this section, the Registrar must: (a) give notice containing details of the application to the following persons or bodies (other than the applicant in relation to the application): (i) any registered native title claimant in relation to any of the area covered by the application; and (ii) any registered native title body corporate in relation to any of the area covered by the application; and (iii) any representative Aboriginal/Torres Strait Islander body for any of the area covered by the application; and (iv) subject to subsection (5), any person who, when the application was filed in the Federal Court, held a proprietary interest, in relation to any of the area covered by the application, that is registered in a public register of interests in relation to land or waters maintained by the Commonwealth, a State or Territory; and (v) the Commonwealth Minister; and …" 9 The application to join NTS is opposed by the applicants. 10 The basis of the objection is that s 84(5) requires the Court to be satisfied that the "interests" of the person or body may be affected by a determination in the proceedings. It is said that "a determination in the proceedings" must be the final determination in the proceedings. It must be noted that the expression "affected" does not necessarily mean that the "interests" must be adversely affected. The language of the subsection does not so provide. 11 In opposition to the application it is said that the expression "interests" should be construed narrowly because once a person or body is admitted as a party, that person has power to veto a settlement proposal and has other consequential rights that can impact significantly on the conduct of the proceedings. The submission therefore is that the interest must be one which has a direct nexus with the land over which the claim is made or be land in close proximity which relates to the subject matter of the application or to those activities which are conducted on the land in question, or on which the person or body wants to conduct activities, or in relation to the land. An application for joinder should only be granted where persons or bodies have genuine and direct interests: cf Katz J in Woodridge v Minister for Land and Water Conservation [2001] FCA 419, applying observations made in Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1. 12 In neither of those cases was the Court concerned with an application by a NTRB. They involved an association of farmers and an environmental group respectively. In both cases it was held that the party seeking joinder did not have "interests" which may be affected by a determination in the proceedings. 13 In Byron Environment Centre, the Full Court held that although the relevant "interests" are not confined to interest in land or water, they do not extend to mere emotional associations, ideological or bare intellectual interests in the subject matter of the application. The "interests" must not be indirect, remote or lacking in substance and must be capable of clear definition such that they may be affected in a discernible way in relation to the application: at 7-10 per Black CJ. Although that case concerned the provisions of the Act prior to the amendments, I agree with Katz J that the reasoning in Byron Environment Centre is applicable to the present legislation. 14 It then becomes necessary to apply these principles to the present case. A useful starting point is that the Act contains specific provisions with respect to representative bodies. Section 66(3)(a)(iii) obliges the Registrar to give details concerning an application to the representative bodies. In order to become a party, there is no requirement on the representative body to have any "interest", but there is a requirement to give notification to the Federal Court, within the specified period, that the body wants to be a party. In the case of non-representative bodies, or persons not within s 66(3), they must show either that they claim to hold native title in the relevant case or that their "interests" may be affected by a determination in the proceedings. 15 In substance what is different in this case from other authorities referred to is that it is sought in this matter to substitute one representative body which had been properly included as a party and which, because of changed circumstances, needs to withdraw, to enable another representative body performing the same functions to carry out those functions. Prima facie, it seems odd if such a substitution or succession in functions were not permitted by the Act. 16 The NTS contends that its "interest" is not within any of the excluded types of interest referred to in Byron Environment Centre. It relies on its statutory duty to carry out its functions under s 203B and these are sufficiently broad, in its submission, to demonstrate sufficient "interests". It is submitted that the functions and duties of the NTS are substantial, genuine and relevant and could be directly affected by a determination in the proceedings. The NTS says that it can perform its functions more effectively in relation to facilitating satisfactory representation by native title holders and can better assist claimants if it is fully informed in its capacity as a party in relation to the proceedings and as such would be on immediate notice of all relevant matters in the proceedings. For this purpose it is said that it is appropriate that it should be engaged in the proceedings themselves and not act simply as a bystander or collateral adviser. It is also said that to adequately perform its functions under s 203BJ as a representative body, it needs to have direct involvement in the proceedings. It submits that the provisions contained in ss 203B - 203BJ of the Act contemplate that the representative body will be actively involved at all stages of the individual applications. For example, s 203BB1(b), which is concerned with the facilitation and assistance functions of a representative body, states that the body has a function: "(b) to assist registered native title bodies corporate, native title holders and persons who may hold native title (including by representing them or facilitating their representation) in consultations, mediations, negotiations and proceedings relating to the following: (i) native title applications; (ii) future acts …" 17 This function would be facilitated by a continuous direct engagement in the proceeding. 18 The functions with respect to mediation and dispute resolution conferred on representative bodies under s 203BF could also be more effectively carried out by involving the representative body as a party in the application process. This is particularly important in native title applications where most applications involve complex interlocutory disputes in order to enable the matter to progress to a hearing and where it is appropriate that the representative body should be fully informed at first hand and this would be so if it were a party to the proceedings. 19 The notification functions of representative bodies under s 203BG proceed on the basis that the representative body is in a position to ensure that as far as reasonably practicable, notices that are given by it, in relation to the area, are brought to the attention of any person who holds or may hold native title in a timely manner, where the representative body considers that the notice would be unlikely to come to the attention of the person by some other means. Involvement in the proceedings as a party would facilitate this function. Under s 203BA the representative body must perform its functions in a timely manner and this would be facilitated by direct involvement as a party to the proceedings. If the representative body is not a party in the proceedings, its performance of the above functions may be carried out less efficiently. 20 Two cases have been cited in opposition to the application based on the alleged lack of a relevant interest by representative bodies as opposed to private associations or bodies not within the Act. They are Munn v State of Queensland [2002] FCA 78 per Emmett J and Kooma People v State of Queensland [2002] FCA 86 per Drummond J. 21 In Munn, Emmett J did not decide the question as to the sufficiency of the "interests" of the representative body. His Honour did however express reservations about the sufficiency or existence of the interest claimed by the representative body under s 203B. It was not necessary in that case to consider the nature and extent of the functions conferred on the representative body under ss 203B-203BJ in order to determine the application. In my opinion, it does not necessarily follow that because s 84(3)(a)(i) includes representative bodies without any requirement to show an "interest" that therefore a representative body cannot also be a body whose interests may be affected by a determination in the proceedings. Nor does it necessarily follow that s 66(3)(a)(vii) would be otiose if a representative body were also treated as a person whose interests may be affected. In Kooma, Drummond J refrained from expressing a view on this question. The application was dismissed on evidentiary grounds. On the evidence in that case, his Honour concluded that the corporation was sought to be joined to the proceedings at the request of one faction, to take control of the litigation out of the hands of the applicant. In that case the proceedings were commenced in June 1996 and the joinder application was only made in January 2002 in circumstances where no explanation for the substantial delay was proffered. 22 I do not accept the submission that the NTS can always perform its functions equally as effectively if it is not a party to the proceedings. The Act contemplates that a representative body is in a somewhat special position in that it can become a party simply by giving notice in accordance with s 66. It is implicit that it is envisaged that as a party it perform a useful function in the proceedings. The determination of the proceedings in the present case either at an interlocutory stage or on a final basis may affect the performance of the statutory functions of the representative body. On the contrary view, a representative body which failed to give notice within the permissible period, would not be able to be joined under s 84(5) and would therefore be excluded because it did not have sufficient "interests". In my view this would be contrary to the public interest and to the role assigned to the representative body under the Act. 23 It is important to note that the question posed by s 84(5) is whether the person's interests may be affected by a determination in the proceedings. The affectation is not restricted to the determination or the final determination of the proceedings. The argument advanced by the applicants that the affectation must be the final determination seems to overlook the specific definition of "a determination of native title" in s 225 of the Act. The definition under this section makes reference to a determination whether o+r not native title exists in relation to a particular area and to a determination of rights relating to the native title. Thus "a determination of native title" is in effect, under that section, the final determination in the proceeding. Accordingly, it would be wrong to equate affectation by "a determination in the proceedings" with that of a final determination of native title rights which is provided for in the definition in s 225. The explicit reference to "a determination" in s 84(5) of the Act undermines to some extent the argument that "interests" must be affected by a final determination in the proceedings before the "interests" of a person or body can be said to be affected by a determination. 24 In relation to the asserted appropriateness of a narrow construction of the expression "interests" because of a power to veto an otherwise agreed settlement, the provisions of s 84(8) should be borne in mind. The provision empowers the Court at any time to order a party other than an applicant to cease to be a party to the proceedings. This power could be invoked by the Court if a representative body is a party to the proceedings and adopts a grossly unreasonable approach in relation to a proposed consensual determination of the proceedings. In addition, it should be kept in mind that the Court must always be satisfied that the person or body has the requisite interest in any particular circumstances and this provides a safeguard on the extent to which other persons or bodies can be joined. 25 For the above reasons, I am satisfied that the application under ss 84(5) and (7) should be granted. I will hear the parties as to any question of costs if necessary. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.