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

REASONS FOR JUDGMENT 1 Before the Court is a motion brought by the New South Wales Aboriginal Land Council ("the Land Council") and the New South Wales Native Title Services Limited ("Native Title Services") for orders that the Land Council which was formerly the native title representative body for the State of New South Wales be given leave to withdraw as a party to the present native title application and that conditional upon the making of that order the New South Wales Native Title Services Limited be joined as a party to the application. 2 The Native Title Act 1933 (Cth) ("the Act") contemplates that native title representative bodies or bodies performing the role or responsibility and functions of such representative bodies would be parties to an application and indeed that bodies such as the Land Council would, from the time an application is commenced, be an applicant in or a party to an application for a determination of native title over a particular area. 3 Section 84(5) of the Act provides: "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." Likewise the Act contemplates that a party to the proceedings, other than the applicant, may with leave of the Court cease to be a party. 4 The language of s 84(5) is somewhat unusual in legislation which involves the joinder of parties in that it not only requires that the party seeking to be joined be a person whose interests are affected (language common to legislation dealing with standing) but also contemplates that that affectation be an affectation by determination in the proceedings. 5 The functions and powers, responsibilities and roles of bodies established to perform the functions of a native title representative body are set out in ss 203B to 203BK of the Act, in particular s 203B deals with the functions and powers of such a body. In summary, those functions and powers involve facilitating and assisting claimants participation in matters involving dispute resolution, identifying potential claimants and generally protecting the interests of native title holders. A representative body is required to perform its functions in a manner that promotes the representation of persons who do or may hold native title, maintaining effective consultation with Aboriginal people in the area for which it is the representative body and ensuring that its structures and processes operate in a fair manner: s 203BA. 6 The question of what is meant by interest for the purposes of s 84(5) has been the subject of consideration by a Full Court of this Court in Byron Environment Centre Inc v Arakwal People (1997) 148 ALR 46. In that case the Chief Justice defined interests at 51-52 as follows: "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 may be affected in a demonstrable way by a determination in relation to the application … It does not follow, however, that the objects of the Act would be advanced if s 68(2)(a) and related provisions concerning parties were interpreted as extending to interests and affectations of an emotional, conscientious, ideological or intellectual kind only." At page 53 his Honour said: "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." 7 There is of course no suggestion here that the New South Wales Native Title Services Limited has an interest which is merely emotional, conscientious, ideological or of an intellectual kind. In fact in accordance with the ordinary principles of standing there would be no difficulty in saying that Native Title Services has an interest which is affected by the Act. The difficulty, if there is one, is to be found in the requirement that the interest must be one affected by a determination in the proceedings. In this connection reference may be made to s 13 which deals generally with the making of applications to the Court for a determination of native title to an area as well as applications which were already made to determine compensation. It is important to point out that only one determination may be made of native title in respect of a particular area of land. 8 Reference may also be made to s 68 of the Act which clarifies, if clarification be needed, the provisions of s 13 by an express prohibition of the Court conducting proceedings relating to an application for another determination of native title once a determination has been made under s 13 and any appeal from that determination has been concluded. 9 I have been referred to a number of decisions of judges of the Court which have considered the joinder of parties in various contexts. Among these are a decision of Katz J in Woodridge v New South Wales Minister for Land and Water Conservation (2001) 108 FCR 527; Emmett J in Chapman v Minister for Land and Water Conservation for the State of New South Wales [2000] FCA 1114; Tamberlin J in Bissett v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 365 and French J in Walker on behalf of the Ngalia Kutjungkatja People v State of Western Australia [2002] FCA 869. 10 As French J pointed out in Walker, a case which concerned an application for joinder by Anglo Gold Australia Limited, it was early thought that the definition of interest in the previous legislation rather restricted the kind of interest that would support joinder. The view was rejected by Olney J in Members of the Yorta Yorta Aboriginal Community v State of Victoria (1996) 1 AILR 402 which in this respect was approved by the Full Court in Byron. It may be accepted that the meaning of affectation of interest is not, as Lockhart J said in the same case at 62, one to be encased in technical rules, and it may also be said that the expression is not one that should be narrowly construed at least in the case where a representative body is seeking to be joined to replace a previous representative body as is the case here. Many of the cases such as Walker have concerned joinders in circumstances quite different from those involving representative bodies and for that reason are not particularly helpful in resolution of the issue where the application is one made by a representative body. 11 In addition to Bissett there were two other cases where a joinder of representative bodies has been considered, these being respectively Munn v State of Queensland [2002] FCA 78 (Emmett J) and the Kooma People v State of Queensland [2002] FCA 86 (Drummond J). However, in the first of these the question of sufficiency of interest of the representative body was not really determined. More recently there is the decision of Madgwick J in Gale v New South Wales Minister for Land & Water Conservation [2002] FCA 972. I shall return to that decision in a moment. As I have already indicated it has been suggested that the relevant interest in question be one which is capable of clear definition. Counsel for the service defined the interest here as including, although not necessarily limited to the following: 1. The assistance of the applicant and those the applicant represents and facilitating the representation. 2. Consultation with and having regard to the interests of those claiming native title over the relevant area, being the applicant and those on behalf of whom the applicant has brought these proceedings. 3. Identifying persons or classes of persons who may hold native title over the relevant area. 4. Consultation with communities that might be affected. 12 It is submitted that if a narrow view is taken of determination as involving the actual decision by the Court of the persons who do hold native title over a particular area and the rights attaching to that, here the interests of the service come to an end upon the making of a determination of that kind, having regard to the fact that only one substantive determination may be made. 13 It is submitted, in any event that the word, determination, should be given in this particular context a broader meaning than the ultimate determination of native title. There is some difficulty in drawing a line as to what determination might mean once it is not restricted to the final determination. However, for the purposes of the present application it is unnecessary to determine that issue. It suffices that the interests of the service are such that they are affected by the final determination if only because the functions one might almost say, obligations, which it has to fulfil in assisting claimants and those represented must of necessity come to an end at least once the substantive determination has been made. 14 The decision of Madgwick J on 12 July 2002 provides a further ground for granting the present motion. His Honour, in that case made orders similar to those sought in the present motion. His Honour's reasons are brief but it suffices here to say that as a matter of comity a Judge of this Court should follow another single Judge unless convinced that the previous decision was clearly wrong. I am not so convinced. 15 Clearly it is the policy of the legislation that claimants or indeed all Aboriginal people who have interests in a particular area of land are given the utmost assistance by representative bodies. If it becomes necessary for a representative body originally a party to retire from the proceedings and be replaced by another representative body, claimants, those represented or other persons who may have interests in the area would be left entirely without representation. This cannot have been the intention of Parliament when the legislation was passed. I would be loathe to give a construction to legislation that would bring about this consequence. I would, however, echo what is said by Madgwick J in paragraph 5 of his Honour's judgment, namely: "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." His Honour may not have been referring in that statement to the provisions of s 84(5) concerning the joinder of parties. However, with respect what his Honour there says is equally applicable to the question of joinder. There is a question of difficulty of construction of the section which indeed calls out for legislative clarification. There should not be any ambiguity in the ability of a representative body to be joined at least where the joinder arises because of the retirement of a former representative body. 16 I would, however, for the reasons I have given make the orders sought and accordingly order that: 1. in accordance with the provisions of s 84(7) of the Native Title Act (1993) (Cth) ("NTA") the New South Wales Aboriginal Land Council, formerly the native title representative body for the State of New South Wales, be given leave to withdraw as a party to the native title application; 2. in accordance with the provisions of s 84(5) of the NTA the New South Wales Native Title Services Limited be joined as a party to act in the capacity of native title representative body under the NTA; 3. the Tribunal report on the progress of the matter on or before 11 October 2002; and, 4. the matter is stood over until 28 October 2002.