CONSIDERATION
36 Two not altogether harmonious objectives of the NT Act are revealed in present issue. The one, emphasised by the Commonwealth, is that of procuring a final determination as to whether or not native title exists in relation to a particular area and, if it does, a determination of who the persons or group(s) of persons are who hold the common or group rights comprising the native title. The other, propounded by the State, is to maintain adherence to the processes and procedures chosen by the Parliament for determining native title claims.
37 In the end the issue is one of statutory interpretation having regard to the text, structure and purposes of the Act. As conflicting judicial views have been expressed on this issue on a number of occasions, these provide a convenient starting point for my own consideration of the matter. It is appropriate to begin with Western Australia v Ward. The three applications dealt with in that case were made in accordance with the procedures laid down in the Act prior to the 1998 amendments. The first, and principal application if I can so describe it, had been referred under the "Old Act" to the Federal Court for curial determination. The other two applications were filed subsequent to the first but had not been so referred. The third of these (involving a claim by the Balangarra Peoples) overlapped a small part of the other two applications. The Old Act contained no provision equivalent to s 67 of the "New Act" for dealing with the overlap claims in the same proceedings. Under the Old Act parties provision (s 68), the Balangarra claimants were made respondents to the first application. The trial judge, Lee J, subsequently ordered that the Balangarra be the third applicants in the principal application. At the hearing of the application Lee J dealt as follows with a jurisdictional question raised in relation to the third applicant (Ward v Western Australia (1998) 159 ALR 483 at 551-552):
"It was faintly submitted in argument that the court could not make a determination of native title which included a determination of the interests of the third applicants unless the determination was in respect of an application made by the third applicants and referred to the court by the tribunal pursuant to s 81 of the Act as it then stood.
That submission may be dealt with quite shortly. It is apparent from the provisions and objects of the Act that the court is given jurisdiction to resolve a dispute by determining whether native title exists. Once a matter attracting jurisdiction is before the court the whole of the dispute as to the existence of native title in respect of the land the subject of the application referred to the court, and arising out of the facts which underlie that matter, can be dealt with by the court if the appropriate parties are properly joined to the litigation to have that dispute resolved. Such a course was followed in this matter."
38 On appeal, Beaumont and von Doussa JJ concluded of this (Western Australia v Ward (FC) at [192]-[193]):
"192 In our opinion Lee J was plainly correct in so holding. Even if the Balangarra Peoples had not obtained leave to be joined as an applicant, and had participated in the hearing as respondents, the jurisdiction of the Court extended to making an order which determined that they held native title rights and interests within the determination area. Section 225 expressly requires the Court to determine the persons or each group of persons holding the common law rights comprising native title, and the nature and extent of those rights and interests. Section 225 does not limit the jurisdiction of the Court solely to defining the rights and interests of the named persons who initiate the claim for a determination of native title.
193 Section 213(1) of the NTA provides that if, for the purpose of any matter or proceeding before the Federal Court, it is necessary to make a determination of native title, that determination must be made in accordance with the procedures in the NTA. In our opinion that requirement was fulfilled in respect of the determination in favour of the Balangarra Peoples. The Balangarra Peoples were parties claiming an interest in the area the subject of the claim. They became parties as respondents pursuant to s 68 of the old Act. Their participation in proceedings was therefore in accordance with the procedures of the NTA and, as we have noted, the provisions of s 225 and the in rem nature of the proceedings required the Court to make a determination in respect of the rights and interests claimed by them. Upon their establishing the rights and interests claimed, they were entitled to a favourable determination declaring those rights and interests. The fact that the trial judge, as a matter of procedural convenience, gave leave to the Balangarra Peoples to become applicants, did not affect the jurisdiction of the Court to make a determination in respect of their rights and interests. Moreover, when judgment was delivered, s 67 of the new Act required that the Court make such order as it considered appropriate to ensure that the overlapping claim of the Balangarra Peoples be 'dealt with in the same proceeding'."
Emphasis added.
39 Given that the Balangarra (a) were independently s 61 applicants in their own right; (b) were made parties to the principal application under s 68 of the Old Act; and (c) were constituted applicants in that proceeding by Lee J (there being no provision in the Old Act dealing with overlapping proceedings) - I am satisfied that the actual decision of their Honours lies in the second of the two paragraphs. The course taken by Lee J in the circumstances of overlapping claims accorded with the then requirements of the Act and, for s 213(1) purposes, these had been followed.
40 The observations made in the first of the above paragraphs ([192]), in my view, was dicta, albeit dicta entitled to the respect due to two members of this Court with known expertise in native title matters.
41 While several first instance judges have asserted a contrary view to that in Ward though without reference to it: see for example, Emmett J in Munn v State of Queensland at [8]; it was the decision of Mansfield J in Kokatha Native Title Claim v South Australia that first gave a limiting interpretation to what was said in Ward. In the Kokatha case, his Honour was dealing with applications made under s 84(5) of the NT Act by three individuals to be joined as respondent parties to the Kokatha claim, these persons asserting native title rights and interests in part of the Kokatha claim area. Consequent upon my strike out of the Kuyani determination application, they were not independently s 61 applicants having an overlapping native title determination. In dealing with the applications of these "party-applicants" Mansfield J observed (at [22]-[23]) that:
"In my view, the Court has a discretion under s 84(5) to join each of the party-applicants as a party to the Kokatha claim notwithstanding that, as individuals, they are each asserting that their interests which are or may be affected by a determination of native title in the proceedings are apparently native title rights and interests. However, I do not consider that their claimed interests, if established, could provide another avenue to a determination of an entitlement to native title rights and interests in the claim area in their favour. I share the view of Emmett J in Munn at [8] to that effect. It is a view which Branson J also appears to have shared in Davis-Hurst v New South Wales Minister for Land and Water Conservation (NSW) (2003) 198 ALR 315.
In my judgment the prescriptive structure in the Act for the making of an application for the determination of native title under s 61, with the procedural requirements of s 62, and, since the Native Title Amendment Act 1998(Cth) (the 1998 amendments), the authorisation requirements under s 251B are clear. They provide the only vehicle for the positive determination of native title rights and interests. They require the assurance that the whole of the claim group has authorised the bringing of the claim through the authorised claimants. In Yarmirr v Northern Territory (unreported, Federal Court, Olney J, 4 April 1997) his Honour stressed the importance of compliance with those provisions. See also Quall v Risk [2001] FCA 378 at [67]. I do not regard the authorities relied upon by counsel for the party-applicants as being inconsistent with that view. In Western Australia v Ward (2000) 99 FCR 316, the remarks of Beaumont and von Doussa JJ at 369, at [192]-[193] were made in the context of an existing competing native title claim group at least adjoining the claim area under consideration and including an area partly overlapping the relevant claim area: see Note C to the Consent Determination in Attorney-General of the Northern Territory v Ward (2003) 134 FCR 16."
42 His Honour then went on to acknowledge the propriety of a respondent relying defensively upon claimed native rights and interests to avoid dilution of those interests where a s 61 application relates in whole or in part to the same area as that in which the respondent claims rights. I have referred to this earlier in these reasons.
43 Recently in Moses v State of Western Australia, the Full Court (Moore, North and Mansfield JJ) in a considered dictum reinforced the view expressed in the Kokatha case. In Moses, the Kariyarra people had made a s 61 native title determination application which overlapped two small portions of the Ngarluma/Yindjibarndi determination application. The Kariyarra people were joined as respondents in the proceedings on the latter application and were represented by solicitors but, according to their Honours, apparently did not seek to be joined as applicants and did not seek to participate after the commencement of hearings before the primary judge. The Court went on (at [18]):
"His Honour considered that it was nevertheless appropriate to make a determination in relation to the application of the Kariyarra people insofar as it overlapped the Ngarluma/Yindjibarndi claim, citing State of Western Australia v Ward (2000) 99 FCR 316 at [192]-[193] (Ward (FC)): July 2003 reasons at [55]. In our view, it would not have been open to the learned primary judge to make a determination of native title over those overlapping areas in favour of the respondent Kariyarra people on the state of the evidence in this matter. A determination of native title must be made in accordance with the provisions of the NTA, including its requirements regarding proof of the composition of the claim group and proper authorisation of the named applicants. In circumstances where the Kariyarra people participated as respondents only and made no attempt to satisfy the learned primary judge that all of the requirements of the NTA had been met in respect of their overlap claim, it would not have been appropriate to nevertheless make a determination of native title in their favour: see also Kokatha Native Title Claim v South Australia (2005) 143 FCR 544 at [22]; Munn v State of Queensland [2002] FCA 486."
44 Section 67, I would note, while requiring that overlapping claims must to the extent of the overlap be dealt with in the same proceedings, does not require that each claimant group be formally constituted an applicant in the proceedings. Rather the Court is simply required to make such order as it considers appropriate to ensure that the overlappings are dealt with in the same proceedings: see Western Australia v Ward (FC) at [193].
45 Both Ward and Moses, then, would seem to acknowledge that in s 67 proceedings on overlapping claims, a native title claimant group which has its own s 61 application can seek as a respondent in the overlap proceedings a determination of native title on its own claim (at least to the extent of the overlap if another applicant's proceeding is the principal proceeding): Ward (FC) at [193]; but in so doing it must satisfy all the requirements of the NT Act to establish that claim: Moses at [18].
46 The present is not a s 67 overlapping claim case and so raises directly the issue whether the Court has jurisdiction to make a determination of native title in favour of a person or group of persons who has not a s 61 application on foot in the proceedings. In my view, the Act, properly construed, requires a negative answer to this question. In this, I agree with the conclusion of Mansfield J in the Kokatha case.
47 Put shortly, a s 61 native title determination application is required to enliven the Court's jurisdiction to make a determination of native title in relation to the determination area. That determination, though, is to be made, as s 13(3) indicates, on the application the subject of the proceeding. Despite the contrary submissions of the Commonwealth, the language of s 225 does not detach the determination of native title from the application made for the determination. It is the determination made on the application that becomes the "approved determination of native title" which has such far reaching significance in the scheme of the Act.
48 I am, in consequence, unable to agree with the view of Beaumont and von Doussa JJ in Western Australia v Ward (FC) that s 225 does not limit the jurisdiction of the Court solely to defining the rights and interests of the persons who make a s 61 native title determination application. The legislative intent to the contrary is manifest in my view in the detailed prescriptive requirements of s 61 and s 62 and of s 251B in relation to authorisation, description of the claim group etc. These requirements serve a variety of purposes - from providing assurance that the whole claim group has authorised the bringing of the claim to, in the case of s 62, disclosing the essentials of the case to be made: see Jango FC at [76]; etc. It would be surprising if, having insisted upon an applicant's compliance with such requirements, the Legislature would leave a non-applicant respondent unconstrained in advancing a claim for a determination of native title. The lack of any express provision dealing with such a non-applicant respondent is in my view explicable. It is clear from the frame of the Act that a person or group that seeks a positive determination is required to make a s 61 determination application under the Act.
49 I would note in passing that the Commonwealth appears to acknowledge the significance of the procedural requirements imposed on claimant applicants by at least s 62 and the potential consequences of the absence of such an imposition on a person in Mr McKenzie's position. It is suggested I should direct him to provide the very information required to be provided by an applicant under s 62(1)(b) and (c).
50 My conclusion is not intended to call into question the right of a non-applicant claimant to be joined as a party to a determination application or to rely defensively on his or her claimed native title rights or interests to oppose or to qualify an applicant's claims. What a successful defensive use of such native title rights or interests can possibly secure is the exercise by the Court not to make either a positive exclusive determination of native title in favour of an applicant or a negative determination that native title does not exist in the claim area. What it cannot secure is a s 225 determination in the non-applicant's favour.
51 The Commonwealth has sought to reinforce its contention by pointing to the inconvenience a successful defensive use of native title can entail - inconvenience which, it is said, undermines the finality sought to be achieved by a determination of native title. That inconvenience, in my view, inheres in the scheme of the Act itself. But what needs to be said is that, in the ability of the Court not to make a determination in the face of a successful defensive use of claimed native title rights, that scheme does not condemn a non-applicant claimant to the injustice of extinction of his or her rights and interests.
52 I would also add that describing a s 225 determination as a judgment in rem (to the apparent end of suggesting that all native title rights and interests raised by any party should in consequence be the subjects of the determination) does little to assist in the resolution of this matter. First, as I have indicated, it is the Act itself which ordains the consequences to be attributed to an approved determination of native title. Such a determination is not irrevocable. It can be varied or revoked on the grounds (inter alia) that the interests of justice require the variation or revocation of the determination: NT Act, s 13(5)(b). While a prospective native title applicant cannot apply to the Court to revoke or vary such a determination, an application can be made by the Native Title Registrar. Secondly, the notice procedures of s 66 are designed to give wide notice of the making of a s 61 application and as s 66(10)(b) indicates it does so with non-applicant native title claimants in mind. If such a claimant is unable to obtain authorisation to make a s 61 claim he or she stands in no different position than any person who claims native title in an area but is unable to institute proceedings to have that claim established. It would in my view be quite anomalous for that position to be changed by the adventitious circumstance of a different claim group making a s 61 application in respect of some or all of the same claim area. The anomaly would be made the greater if the overlap (hence the overlap proceedings) related only to a very small part of the non-applicant claimant's claim area. Thirdly, as I have already indicated, the Court in the discretion it has not to make a determination of native title where a non-applicant claimant relies defensively on his or her claimed native title, can avert untoward consequences to such a claimant which could result from making a s 225 determination.
53 I will declare that, as these proceedings are presently constituted, a determination of native title cannot be made in favour of Mark McKenzie and other Kuyani under the provisions of the Native Title Act 1993 (Cth).
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.