Chapman v Minister for Land and Water Conservation

7. ORDERS that the following persons cease to be parties to the proceeding: Jean Mary Baker Ann Howarth and Braven Howarth Joseph Dyson-Firth Peter R Graham QC Leslie Francis Hordern and Marsden Carr Hordern Geoffrey Thomas Hore and Margaret Narelle Hore Charles Thomas Hoy Rosedale Boatsheds Pty Ltd Judith Bradford and Rodney Bradford Diana May Harper Bryan Frank Mathews Beth Milne Trustees of the Ursuline Nuns of the Roman Union of Ursulines 8. ORDERS that the proceeding be listed for further directions on 8 December 2000 at 9.30 am. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

AND: MINISTER FOR LAND AND WATER CONSERVATION FOR THE STATE OF NEW SOUTH WALES AS STATE MINISTER UNDER THE NATIVE TITLE ACT 1993 (CTH)

FIRST RESPONDENT COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT EUROBODALLA SHIRE COUNCIL THIRD RESPONDENT NEW SOUTH WALES ABORIGINAL LAND COUNCIL FOURTH RESPONDENT MERVYN PENRITH AND JOHN MUMBULLA FIFTH RESPONDENTS VIVIENNE MASON SIXTH RESPONDENT THE OAKS RANCH AND COUNTRY CLUB SEVENTH RESPONDENT WEANDA PTY LIMITED, DAVID WEBB EIGHTH RESPONDENTS NSW ABALONE PTY LIMITED NINTH RESPONDENT JEAN MARY BAKER & JOHN CHARLES BAKER, JUDITH BRADFORD AND RODNEY BRADFORD, GORDON LLEWELLYN BRAY, JOSEPH DYSON-FIRTH, PETER GRAHAM QC, DIANA MAY HARPER, LESLIE FRANCIS HORDERN & MARSDEN CARR HORDERN, GEOFFREY THOMAS HORE & MARGARET NARELLE HORE, ANN LOUISE HOWARTH & BRAVEN WARD HOWARTH, CHARLES THOMAS HOY, BRYAN FRANK MATTHEWS, BETH MILNE, JOHN MORLEY, ROSEDALE BOATSHEDS PTY LIMITED, TRUSTEES OF THE URSULINE NUNS OF THE ROMAN UNION OF URSULINES, WYDON PTY LIMITED TENTH RESPONDENTS

REASONS FOR JUDGMENT 1 The applicants have brought a claim under the Native Title Act 1993 (Cth) ("theAct") in respect of land on the south coast of New South Wales surrounding the township of Broulee. The proceeding is before me today for directions generally and for the hearing of notices of motion. On an earlier occasion, I made orders that certain persons be joined and others be removed as parties. I also made declarations that certain persons are respondents in the proceeding and have been respondents since notification. 2 The applicants, by notice of motion filed on 5 July 2000, have sought an order that one of the respondents be removed as a party and declarations that certain other respondents are persons whose interests may be affected by a determination in these proceedings, merely because they have a public right of access over or use of all or some of the area covered by the application ("the Claimed Area"). By consent, I have made orders earlier today for the removal of the party and for joinder of other persons as respondents. Those joined have also been made the subject of the motion for declarations. 3 The purpose of the applicants in seeking the declarations is as a preliminary to inviting me to make orders under section 84(8) of the Actthat certain of those persons cease to be parties to the proceedings. In order to explain that purpose, it is necessary to say something about section 84 of the Act. 4 Section 84(3) relevantly provides as follows: "Another person [other than the applicant] is a party to the proceedings if: (a) any of the following applies: ……………………… (iii) the person's interests may be affected by a determination in the proceedings;…" I have, by the declarations that I made previously and by the orders made today, determined, in effect, that the persons who are the subject of the declarations sought by the applicants are persons whose interests may be affected by the determination in the proceeding. 5 Under section 84(5A) of the Act: "If: (a) a person wants to become a party to a 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 I considered that it was convenient to determine the persons who would be parties under section 84(3) of the Act and who would be entitled to become parties pursuant to section 84(5A), with a view to permitting the applicants to seek an order under section 84(8) subsequently. Section 84(8) provides: "The Federal Court may at any time order that a person, other than the applicant, cease to be a party to the proceedings." 7 Under section 84(9) the Court must consider making such an order in respect of a person who is a party to the proceeding if the Court is satisfied that the following circumstances apply, namely: "(i) 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; and (ii) the person's interests are properly represented in the proceedings by another party; ………………………" 8 I have formed the view at this stage that, assuming that it is appropriate to make orders under section 84(8) in relation to some of the persons who are presently parties, there are several separate and distinct parts of the Claimed Area that are covered by public rights of access or use. It would therefore not be appropriate to provide that any one of the persons in question represent the interests of all persons whose interests may be affected. 9 It is convenient to determine before considering what orders might be made, or what arrangements might be put in place to ensure that all persons' interests are properly represented, to determine first whether the first prerequisite for the operation of section 84(9) has been satisfied. That raises the question of the nature of the interests that may be affected by a determination in the proceeding, within the meaning of section 84(3)(a)(iii). 10 The nature and content of the right to become a party to proceedings for the determination of Native Title, with the power as a party to veto the process of mediation and conciliation that the Act favours, indicates that the interests with which the section is concerned are interests that are not indirect, remote or lacking substance. The nature and content of the right also suggests that the interests must be capable of clear definition and that they are of such a character that they may be affected in a demonstrable way by a determination in relation to the application. Whilst the interests must be genuine and not indirect, remote or lacking substance, there is no indication that a person who has a special, well established, non-proprietary connection with land or waters, which is of significance to that person, is not to be regarded as having interests that may be affected by a determination. Rather, the consensual objects of the Act would be advanced if a person with genuine interests of that nature, which might or would be affected, has the rights of involvement in the process of Native Title determination given by the Act to person who is a party: see Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1, 7-8. 11 The question that has arisen in the application before me concerns those respondents who are the owners of land that adjoins the Claimed Area. Assertions have been made, although I have not yet had evidence on the question, that the grant of the applicants' claims in full, which include the right to exclusive occupation, would have a detrimental effect on the value of land adjoining the Claimed Area. The assertion is that land will have a greater value if it adjoins the ocean or the beach, such that there is direct access from the land to the ocean and beach. The assertion has been made that the removal of that right would detract substantially from the value of such adjoining land. 12 The question, however, is whether the right that the owner of such land exercises and the interest that that right represents are anything other than the public right of access over or use of part of the Claimed Area. In my opinion, it is not. 13 The object of the Act is to provide a regime and mechanism for the determination and recognition of title of indigenous peoples under their own legal systems. Whether or not there is a right that will be established in relation to the Claimed Area is not a matter for comment at this stage. That will be a matter to be investigated and considered after a full hearing when a substantive determination will be made. 14 I am concerned at this stage, however, with what claims have been made by the applicants and what interests, if any, of the respondents may be affected by a determination of those claims. That will not involve a consideration of the ownership interests that any of the respondents in question have in land adjoining the Claimed Area. Those who have an interest in adjoining land have that interest, whatever the interest may be. No such interest is the subject of any claim in this proceeding. 15 It may be that the determination of a claim in favour of the applicants will have some effect on the value of adjoining land as well as on other land in the vicinity. That effect might be to increase the value. It might be to decrease the value. That is not a matter on which I have any evidence at all but each is a matter of theoretical possibility. However, if the determination of the claim in favour of the applicants could have such an effect, it would do so only because it would interfere with the public right of access over or use of the Claimed Area. 16 I am satisfied, therefore, that the interests of each of the persons named in prayers 2 and 3 of the amended notice of motion may be affected by the determination in the proceeding presently before me merely because those persons have a public right of access over or use of some part of the Claimed Area. Accordingly, if I am satisfied that the interests of all of those persons are properly represented in the proceedings by one party or another, I would be disposed to make an order under section 84(8) that some of the parties cease to be parties. However, I will only do that if I am satisfied that each separate area covered by any public right of access or use that is within the Claimed Area will be the subject of appropriate representation. 17 I propose to take steps to facilitate discussions among the respondents, with the assistance of the applicants if need be, to determine first which separate areas should be the subject of separate representation and secondly the appropriate respondent to represent all of the persons whose public right of access relates to such separate part of the Claimed Area. I propose to adjourn now until later in the day. Arrangements will be made for a room in the Law Courts Building to be made available in which discussions might take place. If some resolution can be reached then I will resume sitting later in the day and make appropriate orders. If the question of representation is resolved, that would resolve the question of parties altogether. The parties may restore the matters before me at any time during the day if there is anything they need me to do in the meantime. 18 I will now adjourn the matters to a time to be fixed later in the afternoon.

[After adjournment] 19 Henceforth whenever I refer to "Congo Point", "Broulee", "Mossy Point" and "Rosedale" in directions and in the course of the hearing, I should be taken to be referring to the following parts of the Claimed Area: "Rosedale Area" That part of the Claimed Area that is south of the northern boundary of the Claimed Area and north of the northern boundary of DP 20911 as that boundary is shown on the plan that is attached to, and forms part of, the application.

"Mossy Point Area" That part of the Claimed Area that is south of the Rosedale Area and north of high-water mark on the northern bank of Candlagan Creek.

"Broulee Area" That part of the Claimed Area that is south of the Mossy Point Area and north of the high-water mark on the northern bank of the Moruya River.

"Congo Point Area" That part of the Claimed Area that is south of the Broulee Area.

20 I have before me on the Directions Hearing letters dated 28 July 2000 addressed to the District Registrar from: · Rodney and Judith Bradford and John Morley; · Keith Wardman, counsel for Peter Graham QC and Gordon Bray; · the assistant property manager of Eurobodalla Shire Council to the Deputy Registrar. In the light of what has been said today and in the light of those letters, I am satisfied that the interests of the respective persons, who are referred to in paragraphs 2 and 3 of the applicants' notice of motion as amended, will be properly represented in the proceedings, in relation to each of the four areas that I have described, by Mr Bray, Eurobodalla Shire Council, Mr Baker and, Mr Morley respectively. I will also make an order removing all other parties referred to in paragraphs 2 and 3 of the applicants' motion as respondents to the proceedings. I will then stand over the claim for directions on 8 December 2000. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett .

Solicitor for the Applicants: Andrew Chalk Associates

Solicitor for the First Respondent : Ms T Jowett for the New South Wales State Crown Solicitor

Solicitor for the Second Respondent: Ms S Brown for the Australian Government Solicitor

Third Respondent: Mr R Addison

Counsel for the Fourth Respondent Ms S Phillips

Weanda Pty Limited Mrs B Dickens

Mr J Baker appeared in person on his own behalf and for Mrs J Baker

Mr Gordon Llewellyn Bray appeared in person on his own behalf and for Wydon Pty Limited

Counsel for Peter Graham QC Ms Piedade

Mrs A Howarth appeared in person on her own behalf and for Mr B Howarth

Rosedale Boatsheds Pty Ltd Mr N K Boardman

Date of Hearing: 28 July 2000

Date of Judgment: 28 July 2000