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[2010] FCA 1158
Federal Court of Australia
2010-10-26
McKerracher J
Original judgment source is linked above.
INTRODUCTION 1 By notice of motion, filed on 25 June 2010, Mr Charles Ghaneson is seeking the following orders: 1. To be joined as an interested party to proceedings relating to WAD6164/98 (Wiluna) and WC 99/24, as applicable and WF 10/10 as applicable. 2. Review and investigate the functions of Central Desert Native Title Services Ltd and its effectiveness in representing the Wiluna NTP/Claimants prior to any determination of native title ownership relating to WAD6164/98 (Wiluna). 3. Terminate funding by Comwth Govt [sic] under s203FE (Native Title Act 1993) to Central Desert Native Title Services Ltd on the grounds of "unsatisfactory" performance of functions of a representative body under the NT Act. 4. Replacement of Central Desert Native Title Services Ltd by a/with another totally independent Native Title Representative Body in relation to WAD6164/98 and the Wiluna NTP/Claimants. 5. Cease proceedings in relation to determination of WAD6164/98 (Wiluna) until the Federal Court has considered my motion. 2 The application in respect of which the notice of motion was filed is a native title determination application made on behalf of the Wiluna Native Title Claimants (the Wiluna application). 3 Mr Ghaneson is a past director and shareholder and current creditor of Seven Star Investment Group (SSIG). SSIG is the applicant for the grant of exploration licence 53/1356, which is currently the subject of proceedings in the National Native Title Tribunal (NNTT) under s 35 of the Native Title Act 1993 (Cth) (NTA) and given the NNTT reference WF10/10. 4 Mr Ghaneson filed two supporting affidavits sworn on the 25 June 2010 and 12 August 2010 respectively. They contained various allegations against the Central Desert Native Title Services (CDNTS) and what was described as evidentiary documentation. Much of that information is not in admissible form and is difficult to follow. 5 In his affidavit Mr Ghaneson states the purpose of his motion is to 'expose the tyrannical, contemptuous, unprofessional, unsatisfactory, unethical, unjust and unfair behaviour and functions of [CDNTS]'. He believes it is important and in the public interest that the matters deposed to in his affidavit come to the attention of the Federal Court, the State of Western Australia and the NNTT and other relevant parties since it is his belief that other mining-related people or entities may be hesitant, unwilling or unable to do something about the injustices he says are occurring. 6 Mr Ghaneson is seeking an investigation of CDNTS pursuant to s 203F NTA and if any investigation finds that CDNTS have not performed their functions satisfactorily, that the Commonwealth funding it relies upon will be limited or terminated pursuant to s 203CA NTA. He also contends that the directors should be removed under the applicable provisions of the Corporations Act 2001 (Cth). 7 A considerable amount of documentation is annexed to Mr Ghaneson's affidavit which he characterises as: 1. evidence of contemptuous and unethical behaviour towards indigenous people(s) by a native title representative body funded by the Commonwealth Government, namely CDNTS; 2. evidence of lack of integrity, knowledge or professionalism by employees or consultants of CDNTS; 3. unsatisfactory performance of functions by a Native Title representative body funded by the Commonwealth Government 4. evidence of providing false or misleading statements by CDNTS; and 5. evidence of speculative, discriminatory and hypocritical behaviour by CDNTS. 8 That documentation includes portions of the CDNTS Constitution, emails and correspondence from officers of the CDNTS, affidavits prepared by CDNTS officers, and other documents. 9 In particular, Mr Ghaneson complains that: 1. CDNTS has plagiarised its own documents; 2. CDNTS has made frequent errors and omissions in affidavit material and other documents it has prepared in the course of the Wiluna proceedings, including a reference to 'Northsun' in an affidavit that should have, according to Mr Ghaneson read 'SSIG' and the apparent omission of a name in the lists of names of indigenous people claiming to hold native title in the Claimant Application Summary; 3. CDNTS made no effort to facilitate dialogue between native title holders and SSIG; 4. CDNTS may have employed consultants as 'yes men', to sign relevant court documents and correspondence; 5. CDNTS officers have not been not sufficiently precise or professional in drafting their documents and that as a result their credibility and integrity is questionable; and 6. CDNTS has provided false or misleading information, particularly in relation to its relationship with its predecessor, the Ngaanyatjarra Council. 10 It is also contended by Mr Ghaneson that SSIG has repeatedly attempted to negotiate a mutually beneficial outcome with the Wiluna Native Title Claimants but has been rejected without exception by CDNTS, including in circumstances where SSIG has signed an agreement drafted by CDNTS without amendment. In this respect he asserts that CDNTS has failed to negotiate in good faith contrary to its own constitution and the NTA, under which CDNTS obtains its funding from the Commonwealth Government. 11 Mr Ghaneson submits that he has been the subject of particular ridicule by CDNTS in that conduct that he engaged in during and around the time of a 'Wiluna NTP meeting' has been misrepresented by the CDNTS. In particular, he complains that a CDNTS officer represented that Mr Ghaneson had staged a protest in the garden bed of the Wiluna Shire Offices when in fact that protest took place on the front verge of the Wiluna Shire Offices. 12 Mr Ghaneson requests to be joined to the proceedings as an interested party. He claims 'an interest' by reason of being a creditor of SSIG. 13 Insofar as Mr Ghaneson's motion relates to the alleged unsatisfactory performance of CDNTS, it is not within the power of this Court to either make an assessment of such conduct or take action in respect of it. Under s 203DF NTA that power lies with the Commonwealth. As such I have decided the motion should be considered as an application by Mr Ghaneson under s 84(5) NTA to become a party to the proceedings.
Qualification for Joinder as a Party under the NTA 14 Section 84(5) of the NTA is set out in the following terms: 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 and it is in the interests of justice to do so. 15 In Chapman v Minister for Land and Water Conservation (NSW) [2000] FCA 1114, Emmett J stated at [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… 16 Although it was not expressly stated in submissions, Mr Ghaneson implies that SSIG has an interest in the Wiluna application within the meaning of s 84(5) NTA and therefore he too has a relevant interest as a creditor of that company. He states in his supporting affidavit: If the unjust, unprofessional and unsatisfactory functions and services provided by CDNTS be allowed to continue inexorably, it would make it exceedingly difficult to have the opportunity to recover a majority of my financial and mining related investment in SSIG, hence I would be significantly affected. (Mr Ghaneson's emphasis) 17 The Native Title applicants argue that SSIG has no such interest that is or may be affected by a determination in these proceedings. It does not have a granted mining tenement affected by the Wiluna application. It is merely an applicant. 18 Further, it is submitted that even if SSIG does have an interest, Mr Ghaneson as a creditor of SSIG does not. 19 In Members of the Yorta Yorta Aboriginal Community & Ors v The State of Victoria & Ors [1996] FCA 453 (Yorta Yorta), Olney J held an application for an exploration licence did not constitute a sufficient interest for joinder of the Western Mining Corporation as a party in a native title determination application. His Honour said at 9-10: Even on the basis of the fairly wide construction which I have applied to the words "the person's interests"…I do not think that the mere desire of an individual to obtain a licence, which may or may not be granted by the licensing authority, amounts to an interest which has sufficient substance to be caught by the words of s84(2). If the mere lodging of an application for an exploration licence gives a person standing to apply under s 84(2) to be joined as a party there would be no limit to the occasions when such an application could be used as a device to intermeddle in the proceeding. 20 That case was distinguished in Walker v Western Australia (2002) 191 ALR 654 where French J, as he then was, concluded that AngloGold's interests, on the basis that it was an applicant for certain exploration licences, were sufficient. His Honour stated: … But the case [Walker] differs materially from that decided by Olney J. It may be that a single application, early in the stages of processing under the Act, and unsupported by other evidence, would not be sufficient to grant an interest which would support joinder. In the present case, however, a number of the applications are well advanced and they are directed to the furtherance of a substantial economic interest that AngloGold has in the area. That interest cannot be dismissed as speculative and nebulous. The applications represent steps taken as part of an ongoing exploration activity in the region which encompasses parts of the claim area. It is plainly qualified for joinder.
CONCLUSION 21 Despite all the evidence that has been adduced, there is no evidence of the status of the exploration license application or of any other interests SSIG may have in the area. In these circumstances I cannot accept that SSIG has a relevant interest within the meaning of s 84(5) NTA. 22 In any event, and more importantly, the interest claimed by Mr Ghaneson on the basis that he is a creditor of SSIG is more tenuous still. Any interest he may have by way of that reason is insufficient to fall within the boundaries set by Emmett J in Yorta Yorta. 23 The motion is dismissed. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.
Freddy on behalf of the Wiluna Native Title Claimants
State of Western Australia