Notification - General Issues
9 The structure of s 66 under the Old Act differs from that of s 66 in the amended Act. In the Old Act s 66(1) stated the obligation upon the Registrar in respect of an application accepted under s 63 more narrowly, at least in form, than the generally expressed obligation imposed by s 66(1) of the amended Act. The relevant obligation of the Registrar under the Old Act was to:
"give notice of the application to all persons whose interests may be affected by a determination in relation to the application".
The quite disparate obligation to record details of the application in the register of native title claims was lumped in together with the notification obligation in section 66(1)(b).
10 The notification obligation being stated in terms in s 66(1)(a), it was taken to have been satisfied if the Registrar gave "notice containing details of the application" to the categories of persons set out in s 66(2)(a) of the Old Act and notified the public "in the determined way" of the application. Subs 66(3)(b) provided for the notice to advise that a person who wished to be a party must notify the Registrar within two months starting on the day notice was given.
11 Section 66 of the amended Act imposes a general obligation upon the Native Title Registrar, when given a copy of an application under s 63, to "comply with the requirements of this section". The requirement to give notice to the relevant State or Territory Ministers and the relevant representative bodies is taken out of the general notice subsection and made the subject of separate provisions. Notice to these entities is different in kind to the notice given to other potential parties. State and Territory Ministers and representative bodies are entitled to receive from the Native Title Registrar a copy of the application and any other documents supplied to the Native Title Registrar by the Registrar of the Federal Court under s 63 (s66(2) and (2A)). The obligation to give notice to them is not qualified, as is the general notice obligation, by the opening words that it is "subject to this section".
12 The general notice obligation is imposed directly in s 66(3) and not by way of deeming provision as in s 66(2) of the Old Act. It is expressed to be "subject to this section". This picks up at least the operation of subs (4) and (6). The former provides for the non-application of subs (3) where the court has struck out the application under s 84C. The latter defers the obligation to comply with subs (3) until the registration test has been applied under s 190A although it does not condition the obligation to notify upon the satisfaction of that test. The specific obligation under s 66(3)(a)(iv), to notify persons who at the time of filing the application in the Federal Court held a proprietary interest registered in a public register of interests, is qualified specifically by reference to s 66(5) as well as by the provisions of subs (4) and (6) which qualify the entire obligation imposed by s 66(3). The specific obligation under s 66(3)(a)(iv) is subject to the Registrar's discretion not to give notice to a person covered by that subparagraph where the Registrar considers that, in the circumstances, it will be unreasonable to do so.
13 There is a question whether, and to what extent, s 66(7) acts as a qualification upon the general obligation imposed by s 66(3) which will be referred to later in these reasons. Section 66 in its amended form imposes an unqualified obligation to notify in a specified way to State and Territory Ministers and the relevant representative bodies. There is however a broadly stated discretion in s 66(5) to depart from the requirement of personal notice to proprietary interest holders covered by s 66(3)(a)(iv).
14 In WMC Resources Ltd & Central Norseman Gold Corporation Ltd v Lane (1997) 73 FCR 366, s 66(2) of the Old Act was characterised as "…designed to bring natural justice to persons whose interests may be affected." at 375. S. 66(1)(a) was seen as mandatory in its terms. Compliance with s 66(2)(a) was also mandatory because it identified "those interests which must be notified pursuant to s 66(1)(a) in order for the registrar to be "taken to have given notice to all persons whose interests may be affected by a determination in relation to an application."" The requirement to give notice under s 66(1)(a) was not satisfied by notification to the public in respect of persons holding interests referred to in s 66(2)(a) - at 377. The practical implications of this construction of the section were substantial for they left open no alternative but personal written notice to all proprietary interest holders recorded on public registers. The range of interests, which might or might not be proprietary, and the difficulty in defining a public register conspired with the procedural requirements of s 66 to link uncertainty in its application to rigidity in its operation and yielded substantial problems in its administration.
15 The discretion conferred upon the Native Title Registrar by the new s 66(5) goes a considerable distance to making the process more flexible than it was. It authorises the Registrar not to give notice to a person in accordance with s 66(3)(a)(iv) where, in his opinion, it would be unreasonable to do so. On the face of it s 66(3) requires written notice containing details of the application to each of the entities and persons mentioned in that subsection. S 66(5) provides for a dispensation from the requirements for personal written notice in relation to the persons mentioned in s 66(3)(a)(iv). Logically, it could be said, that the Native Title Registrar, in a case where such notice was unreasonable, could rely upon the general public notification in s 66(3)(d) to bring the application to the attention of such interested persons. However in making the judgment about whether personal written notice would be unreasonable the Registrar may have regard to other considerations. There would be nothing, for example, to prevent the Registrar, acting under s 66(3)(a)(vii), from giving notice to an industry body representing a class of persons which includes the persons who are subject of the discretion under s 66(5) and relying upon that notice as a relevant circumstance in the exercise of the discretion. The giving of notice to other bodies which may be conduits to the wider community, such as local government bodies, could also be taken into account.
16 S 66(5), although it refers to the unreasonableness of giving notice to "a person", it does not, in my opinion, limit the dispensing discretion of the Registrar to cases involving identified individuals. Such a constraint would defeat most of its utility. Once an individual is identified as a proprietary interest holder covered by s 66(3)(a)(iv) there is unlikely to be much difficulty attached to sending a notice to that person. The problems which attract the exercise of the Registrar's discretion under s 66(5) will, in all probability, be related to the identification of the current members of the relevant class of persons or the large number of individuals in it. The temporal qualification for entitlement to notification under s 66(3)(a)(iv) is that the person hold a proprietary interest of the relevant kind "when the application is filed in the Federal Court". For some classes of comparatively evanescent or short-term or frequently transferred interests the identification of all the individuals at a specified time holding one of that class of interests may be a task of considerable magnitude and doubtful utility. This difficulty and lack of utility will be exacerbated by any delay between filing and notification. Such delay may be beyond the control of the Native Title Registrar who will be unable to begin personal notification until provided with lists by the relevant government authorities of the interest holders in question.
17 The judgment required of the Registrar in dispensing with personal notice is not confined by specific criteria. However, the exercise of that judgment is to be informed by the general objectives of the Act and the particular objectives which emerge from the statutory context in which the discretion is embedded - cf Giris Pty Ltd v FCT [1996] 119 CLR 365 at 372. In considering therefore, whether it is unreasonable to give notice to a person under s 66(3)(a)(iv), the Registrar will have regard to the objectives of the Act that all those whose interests may be affected by a determination should have a reasonable opportunity to become aware of and to become parties to the application if they so wish. The natural justice principle referred to in Lane is still operative. The Registrar will also have regard to the fact that the interests of persons with proprietary interests in the relevant land or waters are seen as warranting personal written notice in the ordinary course and in that sense are accorded a higher procedural priority than lesser interests. It will be necessary to consider the alternative means by which such persons might reasonably be expected to become aware of the application and the opportunity to become parties to it. Although there is a 3 month time limit for such persons to advise the Court of their decision to become a party in response either to personal or public notice, there is also the opportunity for those who may have learned, late in the day, of the existence of an application, to apply to the Court for leave to become a party under s 84(5). In the exercise of its discretion in such cases the Court is not constrained by the fact that a person is out of time for joinder as of right under s 84(3)(b).
18 The Registrar in the exercise of the discretion under s 66(5) is also entitled to have regard to the fact that the proceedings, of which notification has to be given, are judicial proceedings in respect of which the Act reflects a concern that they not be unduly delayed notwithstanding the high value it places on negotiated settlements. The referral of an application by the Court to mediation by the National Native Title Tribunal under s 86B(1) is required to be "as soon practicable after the end of the period specified in the notice under s 66". In deciding whether to make an order that there be no mediation the Court is required to take into account factors including:
"how long it is likely to take to reach agreement on the matters set out in subsection 86A(1) or (2) in relation to the whole or the part of the proceeding" (s 86B(4)(c))."
The Act allows for a party to move the Court for an order that mediation cease where such a motion is brought after 3 months from the start of mediation (s 86C(2)). There is no doubt that these provisions reflect a legislative concern about the length of processes under the Old Act. The Registrar in the exercise of the discretion under s 66(5) is entitled to take into account the time involved in complying with the requirements for personal notice under s 66(3)(a)(iv) and the cost of such compliance.
19 The preceding is not intended to close the categories of considerations which may be relevant to the exercise of the discretion but rather to emphasise that it takes place within the context provided by the Act and the objectives which emerge from that context.
20 The question next arises, what is the function of s 66(7) which authorises the Court to make orders about who "must be given notice under paragraph (3)(a)" and "how such notice must be given". This subsection, it should be noted, applies to the classes of person covered by s 66(3)(a) unlike the administrative discretion conferred by s 66(5) which applies only the classes of person covered by s 66(3)(a)(iv).
21 The State submits that the function of the Court under s 66(7)(a) is declaratory and under s 66(7)(b) is discretionary. The Native Title Registrar contends that the function is discretionary in each case. That is to say, on the Registrar's submission, the Court is authorised to lift or vary the obligation to give notice otherwise imposed by s 66(3)(a). The constructional choice is reasonably open, on the words of subsection 66(7), between each of the competing contentions. The use of the word "must" in each of the paragraphs (a) and (b) suggests that each has a similar function. It would be odd to rely upon that word to support a declaratory non-dispensing role for the Court under para (a) and a discretionary one under para (b). Secondly, s 66A, which relates to notification after amendment, contains no equivalent of s 66(5). No administrative discretion is vested in the Native Title Registrar to dispense with personal notice in respect of an amended application. This is no doubt related to the fact that, where there is an amendment, notice is not required to be given to other than pre-existing parties and persons to whom notice has previously been given, including the public. (s 66A(2)). Section 66A(3) confers a power on the Court similar to that conferred in s66(7). It is difficult to see what useful work of a purely declaratory nature could be done by s 66A(3)(a) in respect of pre-existing parties and persons to whom the Registrar has previously given notice under s 66(3)(a). The absence of a dispensing power in s 66A would be a significant omission. But putting all of that to one side the overriding factor in favour of the Registrar's submission is that the Native Title Registrar, in notifying applications under ss 66 and 66A, carries out a function in aid of the exercise by the Court of its jurisdiction under the Act. Ultimately it is appropriate, and consistent with the statutory scheme, that the Court supervise the exercise of that important power and be able to give directions to the Native Title Registrar in respect of the notice requirements otherwise imposed by s 66(3)(a).
22 The obligation of the Registrar to give notice of amendments to applications is imposed by s 66A. S 66A(1) deals with the case in which the amendment is other than by way of combination of an application with one or more other applications. S 66A(2) deals with amendment by way of combination. Both subs 66A(1) and (2) assume that the amended application is given to the Registrar at a point at which parties have been identified or at least notice has been given under s 66. In truth however, many amendments are made to applications before the original application has been the subject of notice under s 66. Applications are frequently amended to enable them to meet the conditions for registration under 190A. The administration of the registration test is, it will be remembered, a prerequisite to the giving of notice under s 66 (See: s 66(6)).
23 In the simple case of an amendment to an application which does not involve combination, if the application has not been notified under s 66 then s 66 will govern the notification process. S 66A(1) has nothing to say about that case for it operates only when notice has been given under s 66. In such a case the administrative discretion of the Registrar to dispense with personal notice under s 66(5) will be available in relation to the categories of person covered by s 66(3)(a)(iv) as will the power of the Court to make orders under s 66(7).
24 Where an application has been amended by combining with one or more other applications s 66A(2) applies. The subsection appears to operate also on the assumption that the Registrar has given notice under s 66 in respect of at least some of the pre-combination applications.
25 It is important to bear in mind that s 64 of the Act treats combination of applications as a species of amendment of one of them. That is to say an application can be amended by combining it with another application or applications - Strickland v Native Title Registrar. Amendment by combination must be amendment of one application by combination with others. It is not amendment of all of them. The latter characterisation is a prescription for chaos. So when considering notification obligations after combination the focus must rest upon the application which has been amended or, for want of a better word, the "lead" application.
26 Where the amendment by combination has not resulted in any increase in the area of land or waters covered by the lead application the case is simple. If the lead application has been notified prior to the combination order then s 66A(2) operates in the same way in respect of it as does s 66A(1) in the case of a simple amendment. In addition if any of the other pre-combination applications has been notified prior to combination and the 3 month period under s 66 is unexpired, the notice of the combination is to be given to those so notified and to the public. If the notice period has ended notice is to be given to the persons who were parties to the pre-combination applications.
27 In the case of any pre-combination applications other than the lead application, where no notice has been given under s 66 prior to combination, no notice is required afterwards as s 66A(2) does apply to such a case.
28 The area of land or waters covered by the lead application may be increased as result of the combination, a result which is permissible by virtue of s64(2). This may happen by simple spatial addition of an area of land or waters from a pre-combination application to the area covered by the lead application. It may occur less directly if a pre-combination application in the area of overlap with the lead application contains a narrower range of textual exclusions of categories of land tenure than the lead application. In either case the additional land or waters is brought into the lead application from one or more pre-combination applications. Again if there has been no notification of the lead application prior to combination the case is simple. The amended lead application, including the additional land or waters, is subject to the requirements of notification under s 66.
29 If the lead and pre-combination applications which contributed the additional land or waters were previously the subject of notification under s 66 then the provisions of s 66A(2) operate to require notification to be sent to all of those who were previously notified in the case in which the notification period had not ended at the time of combination or to persons who had become parties if the notification period had expired at the time of combination.
30 Where the additional land and waters are brought into a lead application, which has been notified, from a pre-combination application which has not been notified, the procedure to be followed is not readily to be spelt out from either s 66A(2) or s 66. The natural justice principle which informs the notification scheme would require notice of the extension of the area of the lead application to be given in respect of the extra land and waters in accordance with the requirements of s 66. In the case posited s 66A(2) does not apply because notice has not been given of the now expanded combined application in accordance with s 66. The giving of such notice before combination is the premise upon which s 66A(2) operates. This means that the application as amended has not completely been notified in accordance with s 66. The requirements of s 66 must be observed in such a case.
31 The question then is whether the obligation to notify under s 66 in such a case requires re-notification in respect of all the land and waters covered by the combined application including those previously the subject of notification under s 66. In my opinion it does not. The obligation to give notice of the application in respect of the original area has been met. A contrary view would involve fresh inquiry as to the current state of interests held in the original area of the lead application with associated costs and delays. If the contrary view were correct, the Registrar would be entitled to rely upon s 66(5) in relation to the interests covered by s 66(3)(a)(iv). While s 66A does not in such a case mandate notice of the fact of combination to existing parties and those previously notified this should be done administratively as a matter of natural justice. It may be, that given the nature of the Registrar's function in notification as acting in aid of the Court's jurisdiction, this is a matter which could be covered for future cases by a rule of Court. It can, in any event in my opinion, be the subject of a direction by the Court in the exercise of its general powers to regulate proceedings before it.