Dann on behalf of the Amangu People v State of Western Australia

REASONS FOR JUDGMENT ON JOINDER OF WESTERN AUSTRALIAN FISHING INDUSTRY COUNCIL (INC) AS A PARTY AND SPRINGING ORDERS FOR REMOVAL OF RESPONDENTS 1 Case management conferences were held on 31 July 2006 and 1 August 2006 relating to native title determination applications in the Pilbara and Geraldton regions respectively. An unresolved question raised at those case management conferences related to the joinder of the Western Australian Fishing Industry Council (Inc) (WAFIC) as a party. In addition, the representative body for the two regions proposed orders generally providing a mechanism for the removal of inactive respondents in applications across the regions generally. 2 The two applications in which WAFIC seeks joinder are brought on behalf of the Amangu and Ngarla People respectively. The Amangu Peoples' claim was filed on 19 April 2004. Its named applicants include Raymond Dann, Barry Dodd and other representatives of the native title claim group. The area covered by the application is approximately 27,388.48 square kilometres. It covers both land and sea. The sea part of the application as presently defined extends 10 kilometres seaward of the coast from Jurien in the south, to north of Geraldton. The land component runs east to the Shires of Coorow, Perengori and Yalgoo. The Court's records, reflected in a Status Report relating to the application, show a total of 43 respondents as at 18 September 2006. They comprise the State and Commonwealth Governments, five local authorities, one indigenous respondent, seven mining interest holders, 14 pastoral lease holders, two persons claiming fishing interests, 11 persons claiming leasehold interests and Telstra. 3 The Ngarla Peoples' claim known as Ngarla People (No 2) was filed on 7 April 2005. It names as applicants Alexander Brown, Charlie Coppin, Clinton Cooke and Jeffrey Brown. The area of the claim is 524,779 square kilometres. It covers land and sea areas north of Port Hedland. There are 19 parties named as respondents. They comprise the State and Commonwealth Governments, three indigenous respondents, five parties claiming mining interests, eight parties claiming pastoral interests and Telstra. 4 In the Amangu matter WAFIC filed a notice of intention to become a party on 28 July 2005. It did so during the notification period for which the Native Title Act 1993 (Cth) (the Act) provides. The District Registrar referred the question of its joinder to Nicholson J on 6 January 2006. Given my absence for the first three months of this year on long service leave, the matter was stood over to the Geraldton Region case management conference held on 1 August 2006 and judgment reserved until today. 5 Although WAFIC has been named as a respondent in some other native title determination applications in Western Australia, the District Registrar who received its notice of intention to become a party to the Amangu application referred the matter to a judge because of a decision of Lindgren J refusing an application by the Chamber of Minerals and Energy of Western Australia to be joined as a party in the Wongatha proceedings - Harrington-Smith on behalf of The Wongatha People v State of Western Australia [2002] FCA 184. 6 In the notice of intention to become a party lodged by WAFIC on 28 July 2005, it gave details of its interest thus: 'The Application may have an adverse effect on the rights and interests of the Western Australian Fishing Industry Council (Inc) as set out in Attachment A.' Attachment A to the notice identified WAFIC as the peak industry body for the fishing industry in Western Australia. It referred to its role of liaising with government on behalf of its members in connection with the management of various fisheries. Some of those fisheries are located in the claim area. WAFIC's role and function as liaison with government in relation to policies and issues concerning the fishing and pearling industries was said to depend on: '(a) the managed fisheries in a particular area; (b) the number of its members operating in that area; and (c) the ability of its members to access the fisheries in that area.' 7 It was submitted that the function of various committees and WAFIC's role on those committees constituted an interest capable of being affected by the native title claim. If the claim were made out WAFIC's role in advising government in relation to issues raised by the committees would be affected as the rights of its members would be affected by the declaration of co-existing rights or by the declaration that no rights exist. It described its role in those committees as 'political' in that it plays a part in the political process of lobbying or at least making recommendations to government. 8 It was further asserted that the business and economic interests of WAFIC would be affected by the existence or otherwise of native title over waters. WAFIC's ability to represent its members and the content of that representation on various committees would change depending on the outcome of the case. It was said that the economic interests of WAFIC were linked to its membership and the health of the industry. A determination that native title exists in the claim area in the terms claimed would detrimentally impact on the economic interests of WAFIC members and interests within the claim area. 9 It was also pointed out that pursuant to fishing industry legislation in Western Australia there are about 1,500 fishing boat licences and numerous pearling and aquaculture licences in the State. Fishing boat licences allow fishing other than in areas noted on such licences. WAFIC submitted that there are in excess of 1,500 individual fishing interests which could be affected by the claim. 10 WAFIC's application was supported by an affidavit of Guy Leyland, its Executive Officer, sworn 20 December 2005. It referred to an earlier affidavit in the matter of the Ngaluma and Ingibandi Peoples' claim which comprised WAG 6017 of 1996 and part WAG 127 of 1997. That affidavit set out, inter alia, the Constitution of WAFIC. In his affidavit Mr Leyland affirmed the currency of the affidavit filed in the Ngaluma and Ingibandi matter. He said that in relation to the claim area covered by the Amangu application there are a number of 'managed fisheries' or 'interim managed fisheries' under the Fish Resources Management Act 1994 (WA) (the FRMA). Some 13 such fisheries were named. The affidavit also reaffirmed that the claim covers water in which a large number of fishermen licensed under the FRMA are entitled to fish and fishermen that have a specific endorsement on their licence to fish. 11 Mr Leyland also said that a number of companies and licensed fishermen had refrained from seeking joinder or requesting WAFIC to be their agent under s 84(b) of the Act on account of their expectation that WAFIC would be made a party to the native title claim. Three fishermen were named as well as another person, acting on behalf of the Geraldton Fishermen's Co-operative, which has a sizeable number of members who fish for rock lobster. Mr Leyland pointed out that WAFIC was joined as a respondent in the Ngaluma Ingibandi claim by Nicholson J. There were no published reasons for that decision nor for the decision of Lee J joining WAFIC as a party in the Bardi Jawi application. Statutory framework 12 Section 61 of the Act makes provision for applications to be made to the Federal Court for native title determination. Section 63 provides that an application filed under s 61 must, as soon as practicable, be given, by the Registrar of the Federal Court to the Native Title Registrar. Section 66 sets out the obligations of the Registrar to give notice of the application. The Registrar is required to give copies of the application to the relevant Minister of a State or Territory where any of the area covered by the application is within the jurisdictional limits of that State or Territory. A copy of the application must also be given to representative bodies for areas which it covered. In addition the Registrar is to give notice containing details of the application to the various classes of persons or bodies set out in s 66(3) which include 'any local government body for any of the area covered by the application …' (s 66(3)(a)(vi)). The Registrar is required to 'notify the public in the determined way of the application' (s 66(3)(d)). 13 In the case of a claimant application the notice requirements imposed by s 66(3) are not to be complied with until the Registrar has decided, under s 190A, whether or not to accept for registration the claim made in the application (s 66(6)). The notice given under s 66(3)(a) or (d) must specify a date known as the 'notification day' (s 66(8)). 14 The notification provisions are to be read with s 84 of the Act which deals with parties to proceedings in relation to applications to which s 61 applies. Section 84 provides, inter alia: '(1) This section applies to proceedings in relation to applications to which section 61 applies. Applicant (2) The applicant is a party to the proceedings. Affected Persons (3) Another person is a party to the proceedings if: (a) any of the following applies: (i) the person is covered by paragraph 66(3)(a); (ii) the person claims to hold native title in relation to land or waters in the area covered by the application; (iii) the person's interests may be affected by a determination in the proceedings; and (b) the person notifies the Federal Court, in writing, within the period specified in the notice under s 66, that the person wants to be a party to the proceeding. … (5) The Federal Court may at any time join any person as a party to the proceedings, if the Court is satisfied that the person's interests may be affected by a determination in the proceedings.' The following subsections are not material for present purposes. Whether WAFIC has a relevant interest 15 The crucial question in this case is whether WAFIC is a party whose interests may be affected by a determination in the proceedings. 16 The leading case on the range of 'interests' which confer standing under the Act is Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1. That case concerned the party provisions of the Act in effect before the 1998 amendments. They were ss 68 and 69. The decision, however, remains authoritative for the similarly worded party provisions in s 84. In that decision the Full Court held that the interests which could be affected by a determination in relation to an application for native title and thus give rise to an entitlement to party status are not confined to the interests in land or waters which are referred to in s 253 of the Act. 17 Black CJ held that the interest sufficient to give a person the right to become a party to an application should be greater than that of a member of the general public. They must be genuine and the possible effect must be genuine. The Parliament could not have contemplated that the rights given to persons as parties would have other than a genuine foundation. His Honour said (at 7): '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 in effect to veto the process of mediation and conciliation which the Act favours, suggests that the interests with which s 68(2)(a) and the related sections dealing with parties are 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, equally importantly, that they are of such a character that they may be affected in a demonstrable way by a determination in relation to the application.' The requisite interest did not need to be proprietary, legal or equitable. He said (at 7): 'Whilst the interests must be genuine and not indirect, remote or lacking substance, there is no indication that, for example, a person who has a special, well-established non-proprietary connection with land or waters which is of significance to that person is not be regarded as having interests that may be affected by a determination. To the contrary, the consensual objects of the Act would seem to be advanced if a person with genuine interests of that nature that might or would be affected did have the rights of involvement in the process of native title determination given by the Act to a person who is a party. Each case will of course turn on its own facts and whether or not interests will or may be affected will depend upon an assessment of the interaction between the interests asserted by a person who wants to be a party and the nature and extent of the native title rights and interests claimed.' The concept of interest did not extend to interests of 'an emotional conscientious, ideological or intellectual kind only'. Relevantly his Honour also said (at 9): 'The formation of an association or the incorporation of a body with particular objects will not, of itself, create interests that may be affected for the purposes of provisions in the Act relating to parties. … Also, a body that represents the interests of others whose members have interests that may be affected, does not, for that reason alone, become a person whose interests are affected; such interests as it thereby has are wholly indirect. This is not to deny that a corporation may have interests that may be affected by a determination of native title if, for example, its activities might be curtailed or otherwise significantly affected by the determination.' 18 Lockhart J, like Black CJ, rejected a construction of the party provisions of the Act which would limit their application to persons with legal or proprietary interests. His Honour said (16): 'Persons who may not have a right or interest in the land in a proprietary sense, but nevertheless have an interest in a broader sense, will be entitled to have a say in the matter and be able to negotiate some arrangement to accommodate their interests if they are parties to the application, which is the question arising in this case.' His Honour referred, without disapproval, to my decision, as President of the National Native Title Tribunal, in relation to the Gunai Peoples' native title determination application in 1997 allowing joinder of the Lake Tyers Beach Sport and Angling Club which comprised: 'Over 65 members who use the waters and surrounding areas of Lake Tyers daily for recreational fishing.' Re An Application for Native Title Determination by the Gunai People (unreported, National Native Title Tribunal, 17 January 1997, French P) Lockhart J said that the standing provision was not to be encased in technical rules. The class of interests for which it provides is wider than that defined by s 253 and it would be impossible and unwise to attempt to define the class in any definitive sense. It would depend on the facts and circumstances of each case (at 19): 'The interest must be above that of an ordinary member of the public, and must be not that of a mere intermeddler or busybody. The person must have some interest that may be affected by the native title determination. The persons who sought the status of parties before French J in the Gunai application provide a good example of persons with a relevant interest for the purposes of s 68(2)(a). If it be said that this is too broad an analysis and that the floodgates will open, then I must say that over the past 18 years on the Bench of this Court I have never seen the floodgates open in any matter, despite dire predictions to the contrary.' 19 Merkel J referred to the joinder by Olney J of the Victorian Field and Game Association as a party in the Yorta Yorta application - Members of the Yorta Yorta Aboriginal Community v State of Victoria (1996) 1 AILR 482. His Honour also referred to the joinder of the persons and organisations referred to in the Gunai Peoples' case. He observed that the 10 groups of persons and organisations admitted as parties in that case included frequent recreational users of the land and waters covered by the claim, commercial entities said to be dependent for their livelihood upon continuing recreational use of the claimed area by local persons and visitors, property owners entitled to free access to parts of the area claimed and sporting and angling clubs or associations which are the conducted sporting, shooting or angling activities in parts of the claimed areas or had members who frequently or habitually engaged in such activities. 20 In relation to the standing of organisations representing persons whose interests might be affected, Merkel J said (at 43): 'If an individual lacks the requisite interest the position cannot be improved or altered by an application to be a party being made by an organisation representing many such individuals.' His Honour went on, however, to say that (at 43): 'The problem arising in respect of an organisation representing members who have interests that may be affected by a determination is that the interests of the organisation are indirect. Put another way, it is the interests of members, rather than those of an organisation representing them, that may be affected.' His Honour further observed (at 43): 'A different situation might arise if such organisations themselves conduct activities in the area covered by the claim which may be curtailed, interfered with or otherwise affected by a determination. In such cases there is no reason in principle why such organisations may not be persons whose interests may be affected by a determination.' 21 In Woodridge v Minister for Land and Water Conservation for the State of New South Wales (2001) 108 FCR 527, Katz J considered the proposed joinder of the New South Wales Farmers' Association pursuant to a notification under s 84(3)(b) of the Act. His Honour denied the Association party status on the basis that it had failed to establish its possession of interests which might be affected by a native title determination in either sense of: (a) proprietary or contractual interests in the land the subject of the application; or (b) conducting activities which may be adversely affected by such a determination. His Honour held, following the judgments in Byron Environment Centre that a body that represents the interests of others whose members have interests that may be affected does not, for that reason alone, become a person whose interests are affected. Katz J distinguished the Gunai decision and its acceptance by Lockhart J on the basis that the Lake Tyers Beach Sports and Angling Club was not a legal person, separate from its individual members. His Honour said that to recognise 'the Club' as a party was simply an informal method of recognising its individual members as parties. He observed that Lockhart J appeared to be conscious of the Club's unincorporated status. 22 In Harrington-Smith, Lindgren J referred to the Byron Environment Centre case and the Woodridge decision and said (at 2): 'I do not find it necessary to refer to the discussion of the matter in those cases, beyond noting that they establish that a society, organisation, association or other body which voices, protects or promotes the concerns and interests of its members does not, by reason of that circumstance alone, have "interests [which] may be affected by a determination in the proceedings" for the purposes of subs 84(5) of the Act.' Applying that proposition to the position of the Chamber of Minerals and Energy of Western Australia, his Honour refused its application for joinder. See also Adnyamatha People v South Australia (2003) 133 FCR 242 (Mansfield J). 23 In the present case WAFIC does not take issue with what Lindgren J drew from Byron Environmental Centre and Woodridge. Rather, WAFIC contended that its factual position differed from that of the Chamber of Minerals and Energy in a material way. It relied in particular upon WAFIC's representation on, and participation in, advisory committees established under the FRMA. This participation, it was said, included representing the interests of its members by presenting and promoting its members' views with respect to fishery management and protection policy and acting as an intermediary between government and industry. It referred to the formulation of cohesive industry policy. It was contended that WAFIC's participation in these committees is essentially in its own right and on behalf of 'industry' and not merely on behalf of any particular member of WAFIC. An impact on fisheries in the claim area would or could have an effect on management of fisheries outside or partly outside the claim area. 24 WAFIC submitted that the cases which suggest that an industry body does not have an entitlement to participate in the native title claim in its own right have not dealt with an industry body with statutory functions in resource management under existing statutes. It also referred to Nicholson J's decision to allow WAFIC's application to be joined in Ngaluma Ingibandi and it was submitted that unless the view was formed that Nicholson J was clearly in error in allowing WAFIC's notice, then WAFIC ought to be joined as a party to the claim. However, the basis upon which his Honour made the joinder order is not evident as there were no reasons published for the decision. 25 In the alternative, WAFIC submitted that it should be '… joined as a party as agent for specified parties under s 84B of the Native Title Act'. This submission misconceives the operation of s 84B which provides: '(1) A party to a proceeding may appoint a society, organisation, association or other body to act as agent on behalf of the party in relation to the proceeding. (2) The same body may act as agent for 2 or more parties in the same proceeding.' The status of 'agent' under s 84B of the Act is qualitatively different from that of party. 26 It is clear from the authority of the Full Court decision in Byron Environment Centre that WAFIC cannot acquire party status by reason of the possible effects of a native title determination on the interests of its members. It asserts, however, that it has an affected interest by reason of its participation in statutory committees advising government in relation to managed fisheries, some of which exist in the claim area. It does not appear to me however that this function, carried out on the part of WAFIC, can be compared to that of a statutory authority with direct responsibility for the management of an area the subject of a native title determination application. WAFIC's involvement as described in its submissions and supporting evidence, seems to relate to advice to government on policy for the management of the relevant fisheries. No evidence is shown which logically link the economic interests of WAFIC as an organisation to a native title determination in the claim area. Nor am I satisfied that the evidence discloses any real basis upon which WAFIC's capacity to participate in the committees to which it has referred would be affected. 27 In so saying, I accept that WAFIC has been joined as party in some applications without any contention and has acted as agent in others. It has played a valuable role in the submissions that it has made in such cases, not least in the Bardi Jawi case which I heard as trial judge, albeit WAFIC had been joined by order of Lee J. In my opinion however, I am bound by the authority in Byron Environment Centre to reject WAFIC's application for joinder as a party. It may of course act as agent on behalf of a party in relation to the proceeding. That does not require the intervention of the Court. Under s 84B a party to a proceeding can appoint an organisation as its agent. WAFIC's application for joinder is therefore refused. 28 The same considerations arise in relation to the Ngarla Peoples' claim and again, WAFIC's application for joinder in that claim will be refused. 29 I note that among the proposals for amendments to the Act arising out of the recent Commonwealth Government review is a proposal under which industry bodies could be joined as parties. In my opinion, provided that their participation is confined to the representation of their member interest holders in matters directly relevant to the impact of a native title determination on those interests, then the capacity to effect such a joinder may be a useful facility. General springing orders to remove inactive respondents 30 The representative body in the Pilbara and Geraldton regions, that is the Yamatji Land and Sea Council, sought orders in a form made by Siopis J on 12 April 2006 in the Central West Goldfields Peoples' claims. The orders are designed to remove from the party list respondents who do not wish to play an active part in the proceedings. The proposed orders are in the following terms: '1. All respondents to the proceedings complete a Notice of Address for Service, desirably including an email address and return it to the Western Australia District Registry of the Court within 3 weeks of the service of these orders. 2. Parties who fail to comply with order 1 cease to be parties to the proceedings. 3. Service of these orders be effected by the District Registrar sending the orders to each party to the proceedings by prepaid post. 4. Service in accordance with order 3 is deemed to be effected one week from the date on which these orders were posted by the District Registrar. 5. Any party removed pursuant to order 2 shall be reinstated as a party upon making, by (a specified date) a request in writing to the Court to that effect, accompanied by an address for service.' 31 In its submissions in support of these orders the representative body said: '1. The proposed orders are likely to reduce the number of respondents to those who wish to play an active part in the proceedings as there are numerous respondents to proceedings who have never appeared at any directions hearings or hearings of other applications and who may have no interest in receiving information about such matters. 2. This will involve substantial savings in expenses and time for the court and the parties as it will significantly reduce the number of parties who need to be served with documents and notices of the proceedings and interlocutory applications and directions hearings in the proceedings. 3. Respondents who wish to keep informed of the proceedings will not be prejudiced as all they will need to do is to file a notice of address for service. 4. The reduction in the number of parties will make it feasible to reach agreements on determinations and other matters in the proceedings where the agreement of all the parties is required.' 32 I am not prepared to make a global order of this kind for any particular region. In my opinion such orders may be helpful in respect of particular applications where evidence is put before the Court to support the practical utility and justice of such a direction. The application for springing orders will be refused. This allows for the possibility that such applications may be made in respect of particular applications in the future. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.