Jack Woodridge on behalf of the Gomilaroi People v Minister for Land & Water Conservation for the State of New South Wales, State Minister Under the

I emphasise that the definition of "interest" which I have just set out is expressed to be one "in relation to land or waters".)

8 The Council has submitted before me that the failure of the Association to establish that it possesses, within the meaning of s 253 of the Act, an "interest" in relation to the land the subject of the native title determination application is fatal to the Association's claim to possess, within the meaning of subpar 84(3)(a)(iii) of the Act, "interests [which] may be affected by a [native title] determination in the proceeding[ ]", so that the Association is necessarily denied an entitlement to party status in the proceeding. 9 The submission by the Council to which I have just referred was a bold one, since the Council had put a similar submission to a Full Court of this Court in Byron Environment Centre Incorporated v Arakwal People (1997) 78 FCR 1 (Black CJ and Lockhart and Merkel JJ), but that submission had then been unanimously rejected by the Court. However, that case was decided before the addition to the Act by the amending Act of subpar 84(3)(a)(iii) and the Council submitted before me that that fact, together with certain other additions to the Act by the amending Act, had deprived the Byron case of any precedential effect so far as subpar 84(3)(a)(iii) was concerned. 10 It is convenient to dispose immediately of the Council's submissions to which I have referred in the last two paragraphs. 11 The Byron case was concerned with par 68(2)(a) of the Act in its original form. That provision had prescribed as a necessary condition of certain persons' being entitled to party status in relation to native title determination applications that "the person's interests may be affected by a determination in relation to the application". It should be noted, though, that, rather than being made directly to the Court, as presently, such applications were then made in the first instance to the Native Title Registrar and par 68(2)(a) of the Act in its original form was concerned with the question of party status whilst such applications were before the Registrar. However, if such applications were not resolved at that stage, they were then lodged with the Court for decision, at which later stage subs 84(1) of the Act in its original form had the effect that persons who had been parties to an application whilst it was before the Registrar were automatically parties to that application whilst it was before the Court. It will thus be seen that the test of entitlement to party status under par 68(2)(a) of the Act in its original form being considered in the Byron case had used, in substance, the same words to describe that test as are used in the current subpar 84(3)(a)(iii) of the Act and had used them for substantially the same purpose as they are currently used. 12 In rejecting the submission that the definition in s 253 of the Act of the word "interest" applied to the word "interests" in par 68(2)(a) of the Act, Black CJ said (at 6) that the short answer to the submission was that the definition in s 253 of the Act "only applies when 'interest' is used 'in relation to land or waters' and … it is not used in that way in s 68(2)(a)". In that respect, his Honour contrasted the use in par 68(2)(a) of the Act of the bare word "interests" with the use in other operative provisions of the Act of the phrase "interest in relation to land or waters". Lockhart J referred (at 14) to the same contrast in reaching (at 19) the same conclusion as had the Chief Justice. Merkel J likewise relied (at 40-41) on that contrast, as well as on a number of other matters (see at 41-42), in reaching (at 40) the same conclusion as had the Chief Justice and Lockhart J. 13 The amending Act did not alter the definition of "interest" in s 253 of the Act, which remains, as it was at the time of the Byron case, a definition of "interest" only "in relation to land or waters". Further, it is the case that the contrast on which all three members of the Full Court relied in the Byron case is still present in the Act after the 1998 amendments. Like the former par 68(2)(a) of the Act, the present subpar 84(3)(a)(iii) of the Act uses the bare word "interests", whilst, not only are a number of those uses of the phrase "interest in relation to land or waters" which were expressly relied on in the Byron case for contrasting purposes still present in the Act (pars 14(2)(b), 19(2)(b), 226(2)(c) and 228(6)(a)), but further uses of that phrase were added to the Act by the 1998 amendments: see subs 23B(9C) and pars 190B(7)(b), 190D(4)(b) and 249C(1)(b) of the Act. Thus the reasoning of the Full Court in the Byron case as to the effect of the definition of "interest" in s 253 of the Act remains, at first blush, as applicable to subpar 84(3)(a)(iii) of the Act as it was to the former par 68(2)(a) of the Act. 14 However, as I have mentioned above, the Council, as well as relying on the fact that the Byron case had been decided before the addition of subpar 84(3)(a)(iii) to the Act by the amending Act, has relied also on certain other additions to the Act by the amending Act. Specifically, those additions were ss 84B and 136C of the Act. Those sections provide as follows:

"84B Parties may appoint an agent (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. Body may act for 2 or more parties (2) The same body may act as agent for 2 or more parties in the same proceeding. Example: An industry body may act as agent for a number of its members who are parties to a particular proceeding. … 136C Other persons attending or participating in conferences The presiding member [of the National Native Title Tribunal] may, with the consent of all of the parties present at a [mediation] conference: (a) direct that other persons be permitted to attend as observers of the conference; or (b) if he or she considers it would assist the parties to reach agreement on any of the matters mentioned in subsection 86A(1) or (2)--direct that other persons be permitted to participate in the conference."

The submission, as I understood it, was that, because a person without an "interest", within the meaning of s 253 of the Act, in relation to the land or waters the subject of a native title determination application could be involved in a proceeding before this Court by acting as an agent for a party and because, provided all parties at a mediation conference before the National Native Title Tribunal consented, such a person could be involved in that conference by being an observer or participant, it should therefore be inferred that the Parliament had intended that the word "interests" in subpar 84(3)(a)(iii) of the Act should be construed as meaning "interest[s]" of the type defined in s 253 of the Act. 15 As to that submission, I can only say that I am quite unable to see how the presence in the Act of ss 84B and 136C diminishes the effect of the fact that the "interest" being defined in s 253 of the Act remains, as it was before the enactment of the amending Act, an "interest" only "in relation to land or waters". 16 Although it seems to me to be burning daylight to some extent, there are a number of other post-Byron matters on which one can rely to reject the Council's argument about the effect of the definition of "interest" in s 253 of the Act on the proper construction of subpar 84(3)(a)(iii) of the Act. 17 First, it is difficult to conceive that the Parliament, knowing of the 1997 Byron decision, would, in 1998, have repeated in substance in subpar 84(3)(a)(iii) of the Act the same phrase as the one which had been construed in the Byron case if it had intended thereby to convey a different meaning from the one which the phrase had been held in the Byron case to have: compare Te v Minister for Immigration & Ethnic Affairs (1999) 88 FCR 264 at 272, [29]-[30] (Sackville, North and Merkel JJ). 18 Secondly, as difficult as the previous matter is to conceive of, it is even more difficult to conceive that, if the Parliament had intended, by repeating the relevant phrase, to convey a different meaning from the one which the phrase had been held in the Byron case to have, then one would not find some reference to that unusual intention in the amending Act's legislative materials. 19 During argument, I expressly invited the Council to put before me any legislative materials of the type to which I have just referred. In response to that request, the Council put before me certain legislative materials (together with submissions, which I had not invited, on the effect of those materials: compare Carr v Finance Corporation of Australia [No 1] (1981) 147 CLR 246 at 257-58 (Mason J)). However, those materials contained no reference to the Parliament's intention to use the relevant phrase to convey a different meaning from the one which it had been held in the Byron case to have. In fact, those materials did not deal with the new s 84 of the Act at all, but rather with the new s 84B. I therefore infer that there exist no legislative materials of the type which I invited the Council to put before me. 20 Thirdly, in Chapman v Minister for Land and Water Conservation for the State of New South Wales [2000] FCA 1114 (28 July 2000, unreported), a matter concerned with the Act as amended by the amending Act, Emmett J relied (at [10]) on the Byron case in construing subpar 84(3)(a)(iii) of the Act and expressed himself in a way which, it was conceded before me by the Council, was capable of being understood as being necessarily inconsistent with the Council's argument before me about the effect of s 253 of the Act. 21 I will therefore proceed in these reasons on the basis that a person may be entitled to party status in a native title determination proceeding, nonetheless though that person does not possess, within the meaning of s 253 of the Act, an "interest" in relation to the land or waters the subject of the native title determination application. 22 I have already mentioned above that, in its notification to the Court, the Association claimed an entitlement to party status in the proceeding on the following bases: "The claim area may cover leasehold or other interests held by members of this Association. A determination in this claim may be precedential in relation to other claims over interests held by farmers members [sic] of this Association throughout NSW." I have also already mentioned that, before me, the Association has not sought to rely on its possession of those interests on which it relied in its notification to the Court in order to establish that it possesses, within the meaning of subpar 84(3)(a)(iii) of the Act, interests which may be affected by a native title determination in the proceeding. 23 That resiling by the Association from the terms of its notification was a sound decision by the Association, since, just as the Byron case requires me to reject the Council's argument about the effect of s 253 of the Act, that case would also have required me to reject any suggestion that the matters on which the Association relied in its notification to the Court entitled it to party status in the proceeding. 24 In his reasons for judgment in the Byron case, the Chief Justice stated (at 10): "[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."

"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. In a different context it has been recognised that a body whose objects include the advancement of the general interests of its members may lack standing as it does not have a 'sufficient material interest, which would be prejudiced', although its members, whose medical practices were directly affected by the operation of a statute, were entitled to maintain the suit challenging its validity: see Federal Council of the British Medical Association in Australia v Commonwealth (1949) 79 CLR 201 at 257 per Dixon J. … [R]epresentative interests are not sufficient or relevant interests…." 25 The passages which I have just quoted would have required me to conclude that the Association was not entitled to party status by reason of the matters on which it relied in its notification to the Court. Each of those matters, in so far as they had been established by the Association's evidence, would have done no more than establish the possession on the part of the Association of mere indirect interests which may be affected by a native title determination in the present proceeding and such indirect interests are insufficient for present purposes: for express holdings of the insufficiency of "indirect" interests for present purposes, see the Byron case at 8 (Black CJ); 19 (Lockhart J); and 42 and 43 (Merkel J). 26 I have already mentioned above more than once, whether expressly or by implication, that the Association has sought before me to rely on its possession of interests which may be affected by a native title determination in the proceeding other than those interests on which it relied in its notification to the Court. 27 (I add that the Council took no point before me about that change of tack by the Association.) 28 In its written submissions before me (which it, in substance, repeated in its oral submissions), the Association particularly relied on a number of matters as establishing its possession of interests which may be affected by a native title determination in the present proceeding. A fair summary of them appears to me to be as follows: first, the Association's interests, as stated in the "objects" clause of its memorandum of association, include the promotion of the development of the pastoral and agricultural industries and the advancement, promotion and protection of the interests of the pastoral and agricultural industries in (relevantly) legal matters; secondly, on a proper analysis of the Association's objects, its raison d'être is the promotion of broad industry concerns; thirdly, the Association is the peak industry body in New South Wales and has been so for over one hundred years; fourthly, public instrumentalities deal with the Association in relation to rural matters generally and native title matters specifically; and fifthly, the interests of the Association which may be adversely affected by a native title determination in the present proceeding are "the advancement, promotion and protection of rural industries". 29 In its written submissions, the Association also referred to one other matter which may have been intended by it to describe an interest of the Association which may be affected by a native title determination in the present proceeding; alternatively, the matter may have been included simply to reassure me that, if the Association were accorded party status in the proceeding, its participation would be constructive. According to the submissions, the Association is, "… in a position to assist the Court in the determination of nat[ive] title issues which may be beyond the particular fact situations affecting any one of its member farmers, in any given case. Thus it has the charter and the expertise to put before the Court evidence and submissions going to industry wide interests and the interaction of those interests with potential Native Title claims. A good example of this is the potential impact of Native Title on travelling stock routes." In so far as that matter was intended by the Association to describe an interest of its which may be affected by a native title determination in the present proceeding, it does not appear to me to take the matter further than the matters which I have summarised in the preceding paragraph. 30 As to those interests ultimately relied on by the Association before me, again, the Byron case provides guidance as to whether they are sufficient for present purposes. 31 In the Byron case, before making that statement of his which I have quoted at [24] above, Black CJ stated (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. As Gibbs J said in Australian Conservation Foundation Inc [v The Commonwealth (1980) 146 CLR 493] (at 531): 'A natural person does not acquire standing simply by reason of the fact that he holds certain beliefs and wishes to translate them into action, and a body corporate formed to advance the same beliefs is in no stronger position. If it is the fact that some members of the Foundation have a special interest - and it is most unlikely that any would have a special interest to challenge the exchange control transaction - it would not follow that the Foundation has locus standi, for a corporation does not acquire standing because some of its members possess it: see Victorian Chamber of Manufactures v Commonwealth ('Prices Regulations') (1943) 67 CLR 335 at 343; Real Estate Institute of NSW v Blair (1946) 73 CLR 213 at 224, 226, 228; British Medical Association v Commonwealth (1949) 79 CLR 201 at 257.' In the same case, Stephen J said (at 539): 'An individual does not suffer such damage as gives rise to standing to sue merely because he voices a particular concern and regards the actions of another as injurious to the object of that concern. That it is a body corporate rather than an individual which seeks to do so cannot of itself alter that position; the fact that that body corporate has as its main object the voicing, and encouragement in the community, of just such a concern no doubt ensures that what it does to give effect to such an object will not be ultra vires; it will not otherwise improve its position.' See also Right to Life Association [(NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50] per Lockhart J (at 253 [67 was meant]) and per Beaumont J (at 265-266 [80-81 was meant])." Then, having made that statement of his which I have quoted at [24] above, Black CJ continued (at 10), "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 significantly affected by the determination." 32 Likewise, as well as making the statements of his which I have quoted at [24] above, Merkel J also stated (at 43), "A different situation might arise if such [representative] 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." 33 I do not find in the matters ultimately relied on by the Association before me anything which would justify a conclusion that, if there were a native title determination in the present proceeding, the Association's activities might thereby be curtailed or significantly affected (to use the language of Black CJ in the Byron case) or that activities which the Association conducts in the area covered by the claim might thereby be curtailed, interfered with or otherwise affected (to use the language of Merkel J in the Byron case). Further, in so far as the Association relies on its objects, as stated in its memorandum of association, in order to establish its possession of the relevant interests, its doing so is contrary to the approach of Black CJ in the Byron case. 34 It thus appears to me that the Association has not established the possession by it of interests which, in accordance with the views of Black CJ and Merkel J in the Byron case to which I have referred above, are of the type which would confer on it an entitlement to party status in the present proceeding. 35 There seems to me to be much to be said for the view that, the Association having failed to establish its possession of interests which may be affected by a native title determination in the proceeding in the sense of having some proprietary or contractual interest in relation to the land the subject of the application and having failed to establish its possession of interests which may be affected by a native title determination in the proceeding in the sense of conducting activities which may be adversely affected by such a determination, it is inevitable that the Association cannot be accorded party status in the proceeding. 36 However, if it be the case that, even if the Association fails what may be referred to in a shorthand way as the "property" test and even if it fails what may be referred to in a shorthand way as the "activities" test, the Association may still establish that it has, in the relevant sense, interests which may be affected by a native title determination in the present proceeding, then I do not accept that the Association has done so. While I accept that the Association is truly concerned to advance, promote and protect rural industries, I do not accept that such concern amounts to an "interest[ ]" within the meaning of subpar 84(3)(a)(iii) of the Act. Rather, it partakes of a mere "intellectual concern", which does not qualify as an interest for present purposes: see the Byron case at 9 (Black CJ) and 42 and 43 (Merkel J). 37 Before concluding these reasons, there is one particular submission made by the Association with which I consider that I should deal, in spite of the conclusion which I have already expressed above. That submission relied both on the reasons for decision of French J, sitting as the President of the National Native Title Tribunal, in Re an Application for a Native Title Determination by the Gunai People [1997] NNTTA 2 (17 January 1997, unreported) and on the treatment of those reasons for decision by Lockhart J in his reasons for judgment in the Byron case. 38 In his reasons for judgment in the Byron case, Lockhart J referred (at 17-19) to French J's decision, which had concerned the question whether certain persons and organisations were entitled to party status under the former par 68(2)(a) of the Act in an application for a native title determination. Lockhart J stated (at 18), "The persons and organisations who sought to be parties in the Gunai application before French J included a resident of Lake Tyers Beach: 'who frequently enjoys walking along the beaches, swimming and fishing in the waters off the Ninety Mile Beach and also in Lake Tyers and its various creeks and inlets. He is concerned that if the claim succeeds it will restrict the free and unrestricted access which he presently enjoys.' Also included w[as] the Lake Tyers Beach Sports and Angling Club which comprises: 'over 65 members who use the waters and surrounding areas of Lake Tyers daily for recreational fishing. Other members use waterways and surrounding areas for other recreational purposes including water skiing, canoeing, swimming, hunting and sailing. All of these activities are presently enjoyed without cost or restriction.' French J determined that each of the persons and organisations seeking the status of parties w[as] entitled to it." Later (at 19), Lockhart J stated, "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)." 39 The Association's submission before me was, in effect, that: in the Byron case, Lockhart J had instanced the Lake Tyers Beach Sports and Angling Club as a body which, within the meaning of the Act, possessed interests which might be affected by a native title determination; the interests of that club in the matter before French J had been "of a far less significant nature" than those of the Association in the present proceeding; and therefore the Association should be recognised as a party in the present proceeding. 40 I do not find that submission a persuasive one, since it appears to me merely to be inviting me to decide the present dispute by reference to the facts of some other dispute. However, there are two matters about Lockhart J's reasons that I do wish to mention. 41 First, it appears from French J's reasons for decision that the Club was not a legal person separate from its individual members, so that for French J to recognise "the Club" as a party was simply an informal method on his part of recognising the Club's individual members as parties. Lockhart J appears to have been conscious of the Club's unincorporated status, as evidenced by his reference to the fact that "the persons" (as opposed to "the … organisations", which term he had also used earlier in conjunction with the term "the persons") who had sought party status before French J provided a good example of "persons" with a relevant interest. 42 Secondly, if, contrary to the view which I have just expressed, Lockhart J did proceed on the basis that the Club was a legal person separate from its individual members, then it appears that the Club itself organised or conducted activities which could be restricted or limited by a determination of native title in that particular case, since, in his reasons for decision, French J had stated, "The standing of associations depends upon the interests of their members and upon whether activities organised or conducted by the associations could be restricted or limited by a determination of native title". No doubt, Lockhart J was aware of the expression of view of French J in that respect, so that, if Lockhart J did proceed on the basis that the Club was a legal person separate from its individual members, then he would also have proceeded on the basis that the Club itself organised or conducted activities which could have been restricted or limited by a determination of native title. That being the case, Lockhart J's view in the Byron case concerning the Club simply represents an application of the approaches relevantly taken by Black CJ and Merkel J in that case. 43 For the reasons given above, I conclude that the Association is not entitled to party status in the present proceeding. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katz.

Associate: Dated: 11 April 2001 Counsel for the New South Wales Farmers' Association Limited: Mr R Weber

Solicitor for the New South Wales Farmers' Association Limited: Blake Dawson Waldron

Counsel for the Second Respondent: Ms S Phillips

Solicitor for the Second Respondent: Ms B Guthrie

Date of Hearing: 22 March 2001

Date of Judgment: 11 April 2001