Gale v New South Wales Minister for Land & Water Conservation

REASONS FOR JUDGMENT (revised from transcript) HIS HONOUR: 1 There is an application before the Court to permit the New South Wales Aboriginal Land Council to withdraw from the proceedings. There is no objection to that application and accordingly leave will be granted.

2 There is a related application to have joined as a party to the principal proceedings, New South Wales Native Title Services Limited ("the applicant company"), which is a body enabled to perform the functions of a native title representative body for the State of New South Wales in accordance with s 203B of the Native Title Act 1996 (Cth) ("the Act"). 3 Section 84(5) permits the Court at any time to join a person as a party if the Court is satisfied that the person's interest may be affected by a determination in the proceedings. The applicant in the principal proceedings opposes the joinder, pointing out that in this case there appears to be absolutely no prospect of the matter or any appreciable part of it or issue in it being susceptible of agreement through any process of mediation or otherwise. I have to say that that is my own impression of the matter too. 4 However, it is pointed out by Ms Phillips who appears for the applicant company that, among other things, a representative body has "facilitation and assistance functions". These are set out in s 203BB of the Act and include in subs 1B: "to assist … native title holders and persons who may hold native title … in consultations, mediations, negotiations and proceedings relating to the following: (i) native title applications, … (v) any other matters relating to native title or to the operation of this Act." Subsection 2 of the same section provides: "A representative body must not perform its facilitation and assistance functions in relation to a particular matter unless it is requested to do so." 5 The suggestion of the applicant company is that its interest in being able or better able to render such assistance is an interest that may be affected by a determination in the proceedings. Nearly a decade after the passage of the Act it is the lamentable fact that the meaning of a number of crucial provisions and an understanding of the application of a number of crucial concepts referred to or recognised in the Act remain disputed or unclear. The resolution or clarification of some such questions may be involved in this case and the resolution may affect the capacity of a representative body actually to assist those who, it is contemplated by s 203BB, should be assisted. It seems impossible for me to say that the case cannot impact on the legitimate interests of the applicant company and I will therefore join it as a party. 6 I will however excuse it from attendance except as required. No doubt those charged with expenditure of the scarce public money available for the assistance of persons concerned to assert native title will carefully and prudently monitor how they might spend money in pursuance of their new role as a party in this matter. 7 Liberty to apply is given to the parties on 48 hours notice. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.