Bropho v State Of Western Australia

REASONS FOR JUDGMENT Introduction 1 The Native Title Act 1993 (Cth)imposes upon the Native Title Registrar the obligation to give notice of pending Native Title Determination Applications to various categories of persons in ways specified under the Act. Notice of amendments to applications including combination of applications is also the responsibility of the Native Title Registrar. In carrying out that responsibility the Native Title Registrar acts in aid of the jurisdiction conferred upon the Court by the Native Title Act. Difficulties can arise from time to time about the notification requirements. There is provision for the Court to make orders in relation to notification upon application by the Native Title Registrar. The Registrar has applied for such orders in a number of cases before the Court today which raise similar or related issues.

Statutory Framework for Notification of Native Title Determination Applications. 2 The process for dealing with a Native Title Determination Application under the Native Title Act 1993, as it stood prior to the Native Title Amendment Act 1998 (Cth)(the "Old Act"), commenced with lodgement of the application with the Native Title Registrar. Upon lodgment, details of the application were immediately entered into the Register of Native Title Claims (Old Act s 190) - Northern Territory v Lane (1995) 59 FCR 332; Kanak v National Native Title Tribunal (1995) 61 FCR 103. The application was then considered for acceptance, an ex parte process in which the Native Title Registrar was required to decide, on materials provided by the applicants, whether or not to accept their claim (Old Act ss 63 and 64) - North Ganalanja Aboriginal Corporation v State of Queensland [1996] 185 CLR 595. 3 Upon acceptance of an application the Native Title Registrar was required to give notice of it to the public and to persons whose interests might be affected by the application (Old Act s 66(1)(a)). The public and the persons so notified had a period, specified in the notices (generally 2 months), within which to advise the Registrar of their desire to become parties (Old Act ss 66(3)(b) and 68). Commonwealth, State and Territory Governments, any part of whose territory was covered by the application, were entitled as of right to become parties as were others who could show they had an interest which might be affected (Old Act s 66(2)(a)(ii) and (iii)). The nature of the interests necessary to confer standing to become a party was as broadly based as the interest necessary to answer general tests of standing - Byron Bay Environmental Centre Inc v The Arakwal People (1997) 78 FCR 1. After notification and the identification of the parties to an application the way was open to the National Native Title Tribunal to convene a conference under s 72 of the Old Act to endeavour to resolve the matter by negotiation. In practice a conference under s 72 was the formal commencement of mediation, a complex multi-party process which extended over months and years. If the mediation process did not lead to a consent determination the matter would be referred to the Federal Court under s 74 and upon referral would become a proceeding in the Court progressing through interlocutory steps to trial and judgment. If the mediation process led to a consent determination then the matter would be referred to the Federal Court under section 74 and a consent order could be made. The consent order process following a section 74 referral was used instead of the determination by the Tribunal and registration of the agreed determination in the Court, for which the Old Act provided, as the relevant provisions were found to be invalid - Fourmile v Selpam Pty Ltd (1997) 80 FCR 151. 4 Since the coming into operation of the 1998 amendments all applications commenced after 30 September are to be instituted in the Federal Court. Applications lodged with the Native Title Registrar under the Old Act which had not been referred to the Federal Court became proceedings in the Court on and from 30 September 1998. 5 The amendments marked a fundamental shift in the relationship between the Tribunal and the Court. Applications in the Court are now referred to the Tribunal by the Court for mediation which may be terminated by order of the Court (ss 86B and 86C). Questions of fact or law may be referred to the Court by the Tribunal while an application is in mediation (s 86D). Entry of details of an application in the Register of Native Title Claims remains the province of the Native Title Registrar as it relates, not to the proceedings in the Court, but to the entitlement of the applicants to enjoy the benefits of the right to negotiate in relation to future acts affecting their asserted Native Title (s 190A). This process is dealt with more fully in Strickland v Native Title Registrar [1999] FCA 1530. 6 Another function retained by the Native Title Registrar is that of the notification of applications. In this respect the Native Title Registrar is used as a matter of expediency rather than principle to provide, to those who may be entitled to party status, the opportunity to become parties. Persons who, having been notified, wish to become parties must advise the Court and they will become respondents to the application (s 84(3)(b)). Although the notification process and the identification of parties is a prerequisite to any complete mediation the initiation of mediation is contingent upon the satisfaction of certain conditions (s 86B(3)). Notification is indispensable to the proceedings in the Court whether or not the matter is referred for mediation. Against this background the Native Title Registrar can be seen to be carrying out an administrative function in aid of the Court in the exercise of the jurisdiction conferred upon it by the Act (s 81). It is for the Court to determine who are and who are not the proper parties to the matter (ss 84(3),(5),(8) and (9)). It is this pre-eminent feature of the notification process as an aid to the Court in the exercise of its jurisdiction that should inform the construction of the notification provisions of the Act. 7 It is convenient at this point to set out those provisions which are to be found in ss 66 and 66A of the Act. They will be read in the light of ss 63 and 64 of the Act. Section 63 requires the Registrar of the Federal Court to give to the Native Title Registrar a copy of any application filed in the Court under section 61 of the Act together with its supporting documents. Section 64 deals with the amendment of applications and in section 64(4) requires the Registrar of the Federal Court, if an application is amended, to give a copy of the amended application to the Native Title Registrar as soon as practicable. 8 Sections 66 and 66A of the Act provide in their relevant parts: "66 Notice of application (1) If the Native Title Registrar is given a copy of an application under section 63, the Registrar must comply with the requirements of this section. (2) If any of the area covered by the application is within the jurisdictional limits of a State or Territory, the Registrar must, as soon as is reasonably practicable, give the State Minister or Territory Minister for the State or Territory a copy of: (a) the application; and (b) any other documents that the Registrar of the Federal Court gives the Native Title Registrar under section 63 in relation to the application. (2A) The Registrar must, as soon as is reasonably practicable, give the representative bodies for the area covered by the application a copy of: (a) the application; and (b) any other documents that the Registrar of the Federal Court gives the Native Title Registrar under section 63 in relation to the application. (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 (vi) any local government body for any of the area covered by the application; and (vii) if the Registrar considers it appropriate in relation to the person - any person whose interests may be affected by a determination in relation to the application; and (b) give a copy of the notice to the Federal Court ; and (c) if any of the area covered by the application is within the jurisdictional limits of a State or Territory - give a copy of the notice to the State Minister or Territory Minister for the State or Territory; and (d) notify the public in the determined way of the application. (4) Subsection (3) does not apply if: (a) the State or Territory Minister applies to the Federal Court under subsection 84C(1) or otherwise, within 28 days after the day on which the State or Territory Minister is given a copy of the application under subsection (2), to strike out the application; and (b) the Court strikes out the application. (5) If the Registrar considers that, in the circumstances, it would be unreasonable to give notice to a person in accordance with subparagraph (3)(a)(iv), the Registrar is not required to give notice to that person. (6) If the application is a claimant application: (a) the Registrar must not comply with subsection (3) until the Registrar has decided, in accordance with section 190A, whether or not to accept for registration the claim made in the application; and (b) the notice required to be given under the subsection (3) must state whether or not the Registrar has accepted the claim for registration. (7) The Registrar may apply to the Federal Court for an order as to : (a) whether a particular person or class of persons must be given notice under paragraph (3)(a); or (b) how such notice must be given. (8) A notice under paragraph (3)(a) or (d) must specify a day as the notification day for the application. Each such notice in relation to the application must specify the same day. (9) That day must be a day by which, in the Registrar's opinion, it is reasonable to assume that all notices under paragraphs (3)(a) and (d) in relation to the application will have been received by, or will otherwise have come to the attention of, the persons who must be notified under those paragraphs. (10) A notice under paragraph (3)(a) or (d) must also include a statement to the effect that: (a) [Relates only to non-claimant applications)] … (b) in the case of any native title determination application - as there can be only one determination of native title for an area, if a person does not become a party in relation to the application, there may be no other opportunity for the Federal Court, in making its determination, to take into account the person's native title rights and interests in relation to the area concerned; and (c) in any case - a person who wants to be a party in relation to the application must notify the Federal Court, in writing, within the period of 3 months starting on the notification day (as defined in subsection (8)), or, after that period, get the leave of the Federal Court under subsection 84(5) to become a party.

66A Notice of amended application (1) If: (a) the Native Title Registrar is given a copy of an amended application under section 64; and (b) the amendment concerned results in a change to the area of land or waters covered by the original application; and (c) subsection (2) does not apply; the Registrar must: (d) give notice of the amended application to each person who, when the Registrar receives the copy, is a party to a proceeding under Part 4 in relation to the application; and (e) if, when the Registrar receives the copy, the period specified in the notice in accordance with paragraph 66(10)(c) has not ended; (i) give notice of the amended application to all persons to whom the Registrar gave notice of the application in accordance with paragraph 66(3)(a); and (ii) notify the public in the determined way of the amended application. (2) If an amended application of which the Registrar is given a copy under section 64 results from combining the application with one or more other applications, the Native Title Registrar must: (a) give notice of the combining of the applications to each person who, immediately before the combining of the applications, was a party to a proceeding under Part 4 in relation to any of the applications; and (b) if, when the Registrar receives the copy, the period specified in the notice in accordance with paragraph 66(10)(c) has not ended: (i) give notice of the combining of the applications to all persons to whom the Registrar gave notice of the applications in accordance with paragraph 66(3)(a); and (ii) notify the public in the determined way of the combining of the applications. (3) The Registrar may apply to the Federal Court for an order as to: (a) whether a particular person or class of persons must be given notice under subsection (1) or (2); or (b) how such notice must be given. (4) The Federal Court may, if it considers it necessary, direct the Native Title Registrar to give such additional notice of the amended application as the Court considers appropriate. (5) If an amended application of which the Registrar is given a copy under section 64 results from combining the application with one or more other applications, each person who, immediately before the combining of the applications, was a party to a proceeding under Part 4 in relation to any of the applications becomes a party to a proceeding under Part 4 in relation to the combined application.

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.

The general power of the Court to give directions 32 It is important to bear in mind as noted above that the Native Title Registrar, in carrying out notification, acts in aid of the jurisdiction of the Court conferred upon it by it s 81 of the Native Title Act. There is also attracted to that jurisdiction the powers conferred upon the Court by the Federal Court Act and the Rules made under that Act. These powers are only limited by the provisions of the Native Title Act to the extent that, as a later Act dealing with a particular jurisdiction, it qualifies or abrogates them expressly or by implication in relation to the exercise of that jurisdiction. In Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 161 the High Court said:- "When a specific statute which invests the Court with jurisdiction in matters of a particular class does so in such a way as to limit the power of the Court to grant relief of a particular kind, there is no basis for transcending that limitation by recourse to the general provisions of the Federal Court of Australia Act". 33 That observation applies also to the powers of the Court to give directions in relation to the conduct of the proceedings before it that are derived from s 23 or the implied incidental power of the Court to regulate its own proceedings. However, absent a detailed code of procedure relating to the exercise of the Courts jurisdiction under a particular statute the inference is not lightly to be drawn that the Court's power to regulate the conduct of proceedings before it would be constrained. In particular where the specific statute defines, as in this case, a procedural framework which does not address all contingencies in relation to giving of notice of the application to parties who may be affected the Court may make directions appropriate to ensure that proper notice is given. In so doing it will have regard to issues of fairness and also considerations of economy and expedition. In particular, in my opinion, it is open to the Court to give directions to the Registrar in relation to notification issues that may not be provided for in ss 66 and 66A of the Native Title Act.

History of Proceedings relating to Combined Application 0142/98 34 Between December 1995 and September 1998 a number of Native Title Determination applications, covering land and waters in and around the Perth Metropolitan area, were lodged with the Native Title Registrar under the provisions of the Old Act. On and from 30 September 1998 these applications became proceedings in this Court save for such as had already been referred to the Court under s 74. 35 The existence of overlapping applications, some of them from the same parties, raised difficulties for the applicants in endeavouring to explore the possibility of a negotiated resolution of their claims for recognition as Native Title holders over the areas in question. The applicants in relation to six of the applications formed a Combined Metropolitan Working Group and ultimately resolved to combine their applications. 36 The relevant details and histories of the applications in question were as follows: (1) WG 0142/98 (NNTT Number WC 95/81). Robert Charles Bropho applicant on behalf of Swan Valley Nyungah Community and other Nyungah people. Lodged 8.12.95. Registered 11.12.95. Referred to Federal Court under s 74 of Old Act. Area: 2928 square kilometres in a rectangular area covering the Perth Metropolitan Region from North of Yanchep Beach to South of Mandurah and including Lake Leschenaultia to the East. The notification of this application required under s 66 of the Old Act was carried out in the period specified for the purpose of s 66 and expired on 3 April 1997. (2) WG 6159/98 (NNTT WC97/26). Robert Charles Bropho on behalf of the Swan Valley Nyungah Community and other Nyungah peoples. Lodged 9.4.97. Registered 9.4.97. Notification of the application has not been carried out. (3) WG 6239/98 (NNTT WC 98/22) Robert Charles Bropho on behalf of the Swan Valley Nyungah Community and Nyungah people. Lodged 15.5.98 Registered 18.5.98 Area: Old Lockridge camp land at Eden Hill. Notification of the application has not been carried out. (4) WG 143/98 (NNTT WC 96/53) William Warrell on behalf of Freda Yates, Delores Flowers, Victor Warrell, Edith Warrell and Alice Warrell. Lodged 16.5.96 Registered 16.5.96 Referred to Federal Court 31.8.98 Area: (1) Bushland and swampland within an area of Perth Airport (2) Hartfield Park Reserve. The notification of this application required under s 66 of the Old Act was carried out in the period specified for the purpose of s 66 expired on 16 May 1996. (5) WG 6128/98 (NNTT WC 96/103) Gregory Lawrence Garlett and Kelvin Patrick Garlett on behalf of members of the Yahnging Aboriginal Corporation. Lodged 18.10.96. Registered 21.10.96. Area: Southwest of Western Australia - Cervantes east to Mount Jackson, south to Lake Calm, west to Lake Clifton and 10 kilometres off coastal seas from Lake Clifton south to Cervantes north. Notification of the application has not been carried out. (6) WG 6283/98 (NNTT WC 98/67) Richard Wilkes and Albert Wilkes Corunna on behalf of the descendants of the following tribes: (i) Beeliair (ii) Mooro (iii) Beelu (iv) Wureiup Plus the descendants of: (i) Edward George Wilkes and his wife Munderan (ii) Edgar Thomas Wilkes and his descendants (iii) Adeline Evelyn Corunna nee Wilkes (iv) Jane Nicholls nee Wilkes (v) Louise Gillespie nee Wilkes (vi) Alice Harris nee Wilkes (vii) Cecilia Headland nee Wilkes (viii) Grace Matilda Narrier Gentle nee Wilkes Lodged 29.9.98 Registered 29.9.98 Area: A large area centred around the Perth Metropolitan Area and including offshore waters to 12 nautical miles. Notification has been carried out on this application. 37 On 12 April 1999 the Western Australian District Registrar of the Federal Court made orders combining the six applications in the following terms: "(1) This application WAG 0142 of 1998 be amended so that henceforth it is combined with and includes application WAG 6128 of 1998, WAG 6283 of 1998, WAG 0143 of 1998, WAG 6159 of 1998 and WAG 6239 of 1998. (2) This application WAG 0142 of 1998 be the lead application, and the heading of the application be as set out in the proposed amended combined application which is annexed as Annexure "CT 1" to the affidavit of Carolyn Lian Tan sworn on 26 March 1999 and filed herein and the said six applications be continued in and under the said heading. (3) The form of the combined application be amended in the form of the document headed "Amended native title determination application" annexed as Annexure "CT 1" to the said affidavit of Carolyn Lian Tan and that the Amended native title determination application do stand as the amended combined application and that further filing of the amended combined application be dispensed with. (4) The parties to the combined application be all the parties to application numbered WAG 0142 of 1998, WAG 0143 of 1998, WAG 6128 of 1998, WAG 6159 of 1998, WAG 6239 of 1998 and WAG 6283 of 1998. (5) The service of this motion on any person other than the State of Western Australia be dispensed with. (6) The Applicants serve a copy of this order on each Respondent to the amended combined application by no later that 12 May 1999. (7) Any Respondent may apply to vary the terms of this order within 7 days of service of the order. (8) There be liberty to the Applicants and State of Western Australia to apply to vary the terms of this order within 21 days." 38 The orders made effected two significant changes namely the amendment of WG 0142/98 by its combination with the other five applications and the amendment of the combined application by significant contraction of the area of land and waters covered by it. There was a further element of the amendment to the combined application which involved a change in the description of areas excluded from the claim. On one view that change might be thought to represent a narrower exclusion than previously appeared in the lead application or any of the pre-combination applications overlapping it. If that were the case then the amendment allowing that narrower exclusion should not have been permitted as it would have represented an amendment increasing the area covered by the application other than by way of combination (See: s 64(1) and (2)). The relevant exclusion relates to freehold interests and is presently expressed in two categories in schedule B of the application 0142/98 thus: "To avoid any uncertainty, the Applicants exclude from the claim areas any of the areas contained within the following descriptions or tenures which have been validly granted set out in Schedule B1. Schedule B1 B1.1 An unqualified grant of an estate in fee simple… B1.8 Any other freehold validly granted prior to 1January 1994." Prior to the amendment WG 0142/98 excluded "… freehold land …". The overlapping claim WG 6283/98 excluded "all freehold" and WG 6128/98 excluded "private freehold land". The other pre-combination applications did not completely cover the area of WG 0142/98 as it now stands. 39 The question whether there has been a narrowing of the range of excluded freehold must be considered by reference to the narrowest pre-combination exclusion in the 3 applications to which I have referred. That question reduces to the question whether the sum of the exclusions in B1.1 and B1.8 above is less than the narrowest pre-combination exclusion which in this case was that contained in WG 6128/98 - "private freehold land". In my opinion the exclusion in WG 0142/98 should be construed as extending to all freehold titles. I would add that the conditioning of the exclusion upon the validity of the relevant interests subtracts nothing from the exclusion and may well raise what is in practical terms a false issue. If there were any argument advanced by the applicants to suggest that the freehold exclusions were narrowed by the amendment to the lead application then that would be a basis for striking out so much of it as purported to cover areas not previously covered by it or the pre-combination applications. Counsel for the applicants, it should be said, advanced no clear explanation for the change in the wording of the exclusion and in my opinion it should not have been permitted because of the potential for confusion and debate about the nature of the amendment. But in the view I have taken the change should be treated as one in wording only and not in substance. Orders sought by the Registrar relating to notification of WG 0142/98 40 The Native Title Registrar is required to notify the amended combined application in accordance with the requirements of the Act. By a motion filed on 29 October, as revised by a Draft Minute of Orders handed up on 18 November 1999, he moved for orders in the following terms: "1. Notification required to be given by the Native Title Registrar under paragraph 66(3)(a) and paragraph 66A(1)(b)(i) of the Native Title Act 1993 (Cth) ("the Act") be dispensed with save and except for: (i) that onshore part of the area covered by the combined application, that was not covered by WAG 0142/98 (the notified part) as it stood prior to the order to combine made by District Registrar Jan on 12 April 1999; and (ii) that part of the combined application which is offshore. 2. In giving any notice as the Native Title Registrar is to notify persons who hold a proprietary interest that is registered in a public register of interests in relation to land or waters maintained by the Commonwealth or the State of Western Australia at the time at which a search of those registers is undertaken on behalf of the Native Title Registrar for the purpose of giving that notice other than those persons who hold an interest which is of the kind mentioned in Schedule B1 of the application, whether validly granted or not. 3. In relation to paragraph 1(ii) above, that the Native Title Registrar: (i) give notice of the combined application to those persons holding pearl oyster farm leases and aquaculture leases; (ii) cause notice of the combined application to be published in a specialist publication relating to the fishing industry; and (iii) give notice of the combined application to those persons holding off-shore mineral and petroleum tenements or licences." Orders to be made in relation to WG 0142/1998 41 The orders sought in the Native Title Registrars' motion in WAG 0142/98 can be considered in the light of the earlier general analysis of the notification requirements of ss 66 and 66A. 42 The first order sought is a dispensation from notification requirements under ss 66 and 66A in relation to the amended lead application except for the additional land and waters brought into it by the combination process, such land and waters not previously having been the subject of notification. For reasons I have already expressed the obligation of the Registrar in such a case is to comply with s 66 in respect of the additional land and waters. In the exercise of the general power of the Court to which I have referred I would direct that he notify existing parties to the lead application of its combination and amendment. No notification is required in respect of the other pre-combination applications not previously notified. S 66A(2) applies in respect of the pre-combination application WG 0143/98 which had previously been notified. I would not make an order under s 66A(3) which had the effect of waiving the requirement for notice in respect of application WG 0143/98 as existing parties to that application ought to be told of what has happened to it. However there is no reason why the notice required by s 66A(2) in respect of WG 0143/98 may, for persons who are parties to that application and the amended lead application, be combined with the notices required by my direction in respect of the lead application. 43 The second order sought by the Registrar is directed to the difficulty that s 66(3)(a)(iv) requires notice to be given to persons who "when the application was filed in the Federal Court" held a relevant proprietary interest in the land or waters under consideration. There is both practical difficulty and lack of utility in the requirement that the Registrar identify interest holders as at the date of the filing of the application in the Federal Court when there has been any significant lapse of time between the filing and the commencement of the notification process. The filing date in this case would fall to be determined by operation of the transitional provisions in respect of the lead application WG 0142/98 and appears, by virtue of those provisions, to be 30 September 1998 - See: Strickland v Native Title Registrar at paras 35-37. In my opinion it is plainly within the power of the Registrar to conclude under s 66(5), that it would be unreasonable to give notice to persons who were relevant interest holders for the purposes of s 66(3)(a)(iv) at 30 September 1998. In so concluding the Registrar could also decide to notify current interest holders in the exercise of his power under s 66(3)(vii) and have regard to that alternative in concluding that compliance with s 66(3)(a)(iv) would be unreasonable. Although it would be within the power of the Court to make a direction that current interest holders be notified, in my opinion no such order is necessary having regard to the administrative powers already possessed by the Registrar to achieve that outcome. 44 For reasons I have already outlined the altered wording of the exclusion in schedule B of the amended combined application relating to freehold interests should not be treated as having increased the area under claim or the range of notifiable interests affected. The "validity" condition upon these exclusions in my opinion is superfluous. It does not give rise to an obligation on the part of the Registrar to notify apparently excluded interests holders on the basis that their interests might be invalid. If there is a question of invalidity to be raised in relation to any particular interest holder it should be raised expressly and specifically by the applicants at some point in the proceedings at which any affected person may be joined by order of the Court. That, however, is a matter to be dealt with by the docket judge. 45 The third order sought by the Registrar relates to the offshore component of the additional area covered by the amended combined application which is, as I have already held, subject to the obligation to notify under s 66. The order sought would address the difficulty of giving individual notices to the holders of a large range of fishing licences which may or may not be proprietary interests. In my opinion the Native Title Registrar can achieve the result he seeks in respect of offshore interests by a combination of the exercise of his discretion under s 66(5) and the giving of appropriate notices to relevant industry bodies under s 66(3)(a)(vii). He can also act administratively if he so wishes to cause notice of the combined application to be published in a specialist publication relating to the fishing industry and take that step into account in deciding whether it is unreasonable to notify licence holders individually. 46 I will make no order in relation to paragraph 3 of the motion. Orders sought in relation to WG6005 of 1998 - Wongatha application. 47 Application WG6005/98 on behalf of the Waljen people was originally lodged with the Native Title Registrar under the Old Act on 11 August 1994. Notification under s 66 was completed on 13 May 1996. By an Order made on 22 January 1999 by Deputy District Registrar Stanley the application was combined with 19 other applications in the Goldfields Region and redesignated the Wongatha application. The combination had the effect of substantially increasing the land area covered by WG6005/98. All but one of the 19 pre-combination applications had previously been notified under s 66 of the Old Act and notice of the combination given under s 66A(2) in relation to them. One of the pre-combination applications, WG6147/98 on behalf of the Mugung people, had not been notified prior to the combination order. The area of land covered by WG6147/98 is entirely included within the combined application but a small part of that area was not covered by any other pre-combination application and therefore had not been the subject of notification. The combined application therefore covers an area of land which includes an area not previously the subject of notification. This raises the same issue as that raised in relation to the additional area of land and water requiring notification under application WG0142/98 discussed above. The obligation to notify under s 66, for the reasons outlined in respect of WG0142/98, operates in respect of the additional area covered by WG6005/98 not previously notified because it was part of WG6147/98. Notification of the combination has already been given in accordance with s 66A in respect to all other parts of the combined application. On that basis it appears that a declaratory order of the kind made in WG0142/98 will be sufficient without the need for any further direction.

Orders sought in relation to WG 6274/98 48 This application which was lodged under the Old Act covers an area of land and offshore waters from Garden Island south of Fremantle, south to the township of Capel, west to Kojonup and north east to Corrigin then west back to Garden Island. It has not been the subject of notification. 49 On 22 January 1999 Deputy District Registrar Stanley made an order amending the application. A further amending order was made on 17 February 1999. On 3 March 1999 a delegate of the Registrar found the application met the conditions for registration. 50 There are three issues related to notification in this case raised by a motion filed by the Native Title Registrar on 1 November 1999 seeking orders pursuant to s 66(7) and alternatively s 66A(3) of the Act. The first of these is the lapse of time that has occurred since the application could be taken to have been filed in the Federal Court. This raises the same difficulty for the Registrar in identifying relevant interest holders in compliance with s 66(3)(A)(iv) as was raised in respect of WG0142/98 because of the lapse of time from deemed filing in that case. In my opinion the difficulty can adequately be addressed in the same way as in that case by consideration by the Native Title Registrar of his dispensing power under s 66(5) in the light of notification under s 66(3)(a)(vii) to current interest holders. No order is required from the Court in that respect. It should be emphasised that while that would appear to be an appropriate use of the dispensing power the discretion is one for the Registrar to exercise personally and the Court makes no direction in that regard. 51 The second issue relates to a change, flowing from the amendments, to the description of the excluded tenures. It is thought that this change may have increased the area of land covered by the application. Prior to the amendment the application excluded "…all freehold and leasehold properties including Perpetual and Conditional Purchases (sic) leases". After amendment the application excluded inter alia a number of specified categories of leasehold interest and "an unqualified grant of an estate in fee simple". No doubt the purpose of the amendment was to express the excluded areas with greater precision. Unfortunately it arguably had the effect of increasing the land area covered by the application, a result which is not permitted by the Act (section 64). The difficulty may not be as readily resolved as in the case of WG0142 of 1998. Whether or not there has been a permissible amendment is a matter which will have to be agitated between the parties themselves. It is not a matter which need concern the Registrar who is required to notify the application as it stands. It may be appropriate however that the applicant seek a revocation of that amendment in order avoid difficulty and possible strike out motions later. It would be most convenient if such action were to be taken prior to notification. 52 To the extent that the Native Title Registrar is concerned that the exclusion of certain tenures is conditioned upon their validity he is not required, in my opinion, to notify excluded interest holders on the basis that their interests may not be valid. As I said in relation to WG0142 of 1998, if the applicants are to assert invalidity in respect of any particular interest otherwise excluded they will need to do so specifically and at a time when the relevant party can properly be joined. As in the case of WG0142/98 that may be a matter upon which the docket judge would give directions. 53 The third issue raised by the Registrar related to the offshore elements of the application. He seeks orders in terms similar to those sought in WG 0142/98 in that regard. For the reasons already expressed in that case no such order is necessary. 54 For the preceding reasons I do not think it necessary to make any orders on the Motion in WG 6274/98. Orders sought in relation to WG 6192/98 55 The Native Title Registrar's motion in this matter raises exactly the same issues as in the preceding matter and for the reasons I have already expressed no orders will be made on the motion. 56 In this case the alleged increase in the area covered by the application is said to be by direct spatial addition. No argument was advanced as to the validity of the amendment by counsel appearing on behalf of the applicants. If there has been an impermissible increase in area of that kind that is a matter that should be rectified as soon as possible, again preferably before the Registrar has to embark upon notification. It will be up to the applicant to apply for any necessary corrective orders in that regard promptly. Orders sought in relation to WG 6279/98 57 The Native Title Registrar's motion in respect of this application raises issues about the lapse of time between filing and notification relevant to the requirements under s 66(3)(a)(iv) to notify persons who held relevant proprietary interests "when the application was filed in the Federal Court". For the reasons given above no order is necessary in this respect. If there is difficulty in complying with s 66(3)(a)(iv) which is unreasonable the Registrar can exercise his discretion under s 66(5) and notify current interest holders under s 66(3)(a)((vii). 58 There is also an issue of the alleged narrowing of excluded tenures by the amendments made to the application. Again that is not a matter upon which any order need be made relating to the Registrar's duties of notification. Nor does the validity condition attaching to the exclusions require the Registrar to notify excluded interest holders on the basis that their interests may be invalid. I certify that the preceding fifty eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate: Dated: 7 January 2000 In application WG 0142/98

Counsel for the Applicants: Mr G M G McIntyre

Solicitor for the Applicants: Dwyer Durack

Counsel for the Applicants: Mr P Tolson

Solicitor for the Applicants: Mony de Kerloy

In applications WG 6192/98, WG 6274/98 & WG 6279/98

Counsel for the Applicants: Mr P J Rattigan

Solicitor for the Applicants: Mr P J Rattigan

WG 0142/98, WG 0605/98, WG 6192/98, WG 6274/98 & WG 6279/98

Counsel for the State of Western Australia: Mr S J Wright

Solicitor for the State of Western Australia: State Crown Solicitor

Counsel for the National Native Title Registrar: Mr L A Tsaknis

Solicitor for the National Native Title Registrar: Tottle Christensen

Counsel for Western Australian Fishing Industry Council: Mr M McKenna

Solicitor for Western Australian Fishing Industry Council: Hunt & Humphry

Date of Hearing: 18 November 1999

Date of Judgment: 7 January 2000