Members of the Yorta Yorta Aboriginal Community & Ors v The State of Victoria & Ors [1996] FCA 453

(b) if it exists: i) whether the native title rights and interests confer possession, occupation, use and enjoyment of the land or waters on its holders to the exclusion of all others; and ii) whether the native title rights and interests confer possession, occupation, use and enjoyment of the land or waters on its holders to the exclusion of all others; and ii) those native title rights and interests that the maker of the determination considers to be of importance; and iv) in any case - the nature and extent of any other interest in relation to the land or waters that may affect the native title rights and interests. In its amended notice of motion filed on 3 April 1996 WMC asserts that it lodged with the Department of Agriculture, Energy and Minerals of the State of Victoria pursuant to the requirements of the Mineral Resources Development Act 1990 (Vic) and the Mineral Resources (Titles) Regulations 1991 (Vic) - a) an application for an exploration licence (numbered ELA 3862) over an area of land of approximately 150 square kilometres (which area of land falls within the territory which the applicants in this proceeding have claimed to be within the boundaries of the Yorta Yorta community's traditional lands) on 12 December 1995; and b) a further application for an exploration licence (numbered ELA 3933) over an area of land approximately 152 square kilometres (some of which area of land falls within the area of land and waters over which the applicants in this proceeding have claimed native title rights and interests under the Native Title Act and possessory title thereto including title to and interests in all natural resources found on or located within that claimed area of land and waters) on 28 March 1996. The motion was argued on behalf of WMC on the basis that its interests may be affected by a determination of native title in respect of the claim area. In support of the motion WMC relies upon affidavits sworn by Gordon Robert Anderson on 3 April 1996 and 29 April 1996, Paul Patrick Mazzoni on 24 April 1996, Suzanna Sheed on 26 April 1996, and Jan Macpherson on 1 May 1996. The applicants oppose WMC's application and rely upon an affidavit of Peter Macgregor Seidel sworn 30 April 1996. The State of Victoria, which is a party to the proceeding and is also involved in the processes under the Minerals Resource Development Act 1990 by which WMC claims to have a relevant interest has filed an affidavit of Miriam Kathleen Holmes sworn 2 May 1996. The affidavit evidence adduced on behalf of WMC may be summarised as follows: a) Gordon Robert Anderson is the senior properties officer of WMC. He says that WMC is one of the largest mining companies in Australia and has been engaged in exploration for and mining of minerals in Victoria since 1969. On 12 December 1995 WMC made application for an exploration licence (ELA 3862) to the Victorian Department of Agricultural Energy and Minerals (the department). Since then WMC has complied with various requirements of the Mineral Resources Development Act 1990 relating to the application and on 11 April 1996 the department registered an exploration licence (EL 3862) in the name of WMC. There are certain statutory requirements and conditions of the licence which must be satisfied before the registered holder of an exploration licence may commence to carry out work in the exploration area and these are being attended to by WMC in relation to EL 3862. The area covered by EL 3862 is approximately 150 square kilometres in the Rochester area of Victoria. It lies within the area of land claimed by the applicants to be their traditional lands but is not part of the land and waters in respect of which the determination in this proceeding is sought. On 27 March 1996 WMC lodged a further application for an exploration licence (ELA 3933) with the department. The application relates in part to an area of land in respect of which the applicants seek a determination of native title in this proceeding. Following correspondence from the department WMC advised the department on 10 April 1996 that it wished to proceed with the application under the "Right to Negotiate" procedures of the Native Title Act. b) Paul Patrick Mazzoni is a geologist employed by WMC as Manager, Gold Operations. He says that in the areas the subject of EL 3862 and ELA 3933 (if an exploration licence is granted) WMC would be mainly exploring for gold which would involve percussion drilling and depending on the ground conditions may require the use of water. The next step in the exploration stage involves the use of diamond drilling which may require the use of up to 1,000 litres of water for each day of drilling. WMC's usual procedure for obtaining access to water is to identify a suitable source and then approach the owner for permission to take water for its exploration activities. In remote areas water is trucked to the drilling site. In the event that a significant mineral deposit is discovered on EL 3862 or the land the subject of ELA 3933 and it is mined, large amounts of water will be required on a regular basis as part of the drilling operations. c) Suzanna Sheed is a solicitor employed by the solicitors acting for WMC. Since 31 March 1995 she has been a member of the Lower Goulburn Waterway Management Authority of which she is Deputy Chairperson. She claims to be knowledgeable about the sources and allocation of water in the Lower Goulburn area generally and extending to the Rochester area. On 18 April 1996 Ms Sheed attended the offices of the Goulburn Murray River Water Authority at Tatura and was informed by an officer of that authority that the main water supply to the Rochester district and in particular to the area covered by EL 3862 and ELA 3933 comes from the Waranga Western Channel and the water in that channel is supplied from the Waranga Basin. She was also told that the water supply to the northern boundary of the area the subject of ELA 3933 is sourced directly from the Murray River by way of diversion licences to the adjoining land owners. Ms Sheed says that she believes that the Waranga Basin and the water, bed and banks of the Murray River at the points from which water is diverted to supply the land the subject of ELA 3933 form part of the land and waters in respect of which the applicants have claimed native title. d) Jan Macpherson is a legal practitioner employed by WMC as legal adviser to its geographer's office. She says that normally a schedule of the conditions subject to which an exploration licence is granted accompanies a licence but in the case of EL 3862, due to an error within the department, the schedule had not been issued at the time of swearing her affidavit. I turn now to the affidavit of Peter Macgregor Seidel filed on behalf of the applicants. Seidel is a solicitor employed by the solicitors acting for the applicants and has the care and conduct of the proceeding on behalf of the applicants. On 10 March 1995 he wrote to the Victorian Government Solicitor (VGS) requesting clarification as to whether any licences, permits and leases had been issued pursuant to the Crown Lands (Amendment) Act 1994, and also requesting VGS to give an undertaking that the Victorian Government will not make any grants of interests in respect of the land and waters claimed by the applicants under that legislation or other relevant legislation without first advising the applicants and seeking their response to any such proposed action. A "without prejudice" reply was received from the VGS on 10 March 1995. On 8 February 1996 Seidel wrote again to the VGS seeking among other things, clarification of the current status of licensing grants over the land and waters the subject of this proceeding and confirmation that the State of Victoria would comply with the relevant Native Title Act obligations in relation to any proposed future acts affecting the subject land and waters. He again wrote on 26 April 1996 when he referred to an exhibit to the affidavit of Anderson sworn 3 April 1996 and sought confirmation that the Victorian Government would comply with the relevant Native Title Act obligations. At the date of swearing the affidavit no reply had been received to either letter. The final affidavit is that of Miriam Kathleen Holmes filed on behalf of the State of Victoria. Ms Holmes is a solicitor employed by the VGS. On 2 May 1996 Ms Holmes wrote to the applicants' solicitors responding to their letter of 26 April 1996. It is unnecessary to canvass the contents of the reply which is largely directed to legal rather than factual matters. In reasons published by me in this proceeding on 28 November 1995 I expressed my view on the proper construction of s 84(2) and in particular dealt with the meaning of the words "the person's interests" in the context of that subsection. Having revisited the various arguments relating to the purpose and function of s 84(2) I do not resile from the view previously expressed. In particular I affirm the view that for the purposes of s 84(2) it is not necessary that the person seeking to be joined as a party must have an "interest in relation to land and waters" as defined in s 252 of the Native Title Act. In argument on WMC's motion the applicants urged strongly that the granting of EL 3862 was invalid. Briefly, the argument is that the granting of EL 3862 involved a future Act covered by s 26(2) of the Native Title Act which could only be valid if, inter alia, notice had been given under s 29. As no such notice was given the "act" (the granting of EL 3862) was not valid (s 28(1)). It is unnecessary for me to rule on the validity of EL 3862 and it would be undesirable to do so on a joiner application in a proceeding in which the validity of the licence is not an issue between the parties. The view I take in respect of EL 3862 is that (assuming its validity) the only interest of WMC that may be affected by a determination of native title is that its ability to obtain water for exploration purposes may in some way be affected. However, the evidence on this question is quite nebulous. It lacks any credible particularity and in any event the evidence itself provides a complete answer to the supposed problem, namely, that when water is not available it is trucked to the site. In my opinion any interest of WMC that may be affected in relation to EL 3862 is too remote to be worthy of serious consideration and as a matter of discretion I decline to recognise it as a basis for joining WMC as a party. The position in respect of ELA 3933 is different in that all that has occurred is that WMC has applied for an exploration licence in respect of land which is part of the claim area. I am told that the right to negotiate procedures in relation to the application are being (or will be) observed. Even on the basis of the fairly wide construction which I have applied to the words "the person's interests" in the decision previously referred to 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 s 84(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. In my opinion WMC does not presently have an interest which may be affected by a determination in the proceeding but if I am wrong about that such interest which it may have as an applicant for ELA 3933 is so remote as to not justify the exercise of the Court's discretion in its favour. The joiner motion will be dismissed. WMC must pay the applicants' costs of the motion. I certify that this and the preceding 9 pages are a true copy of the Reasons for Judgment of the Honourable Justice Olney Associate: Dated: Heard: 3 May 1996 Place: Melbourne Judgment:7 June 1996 Appearances: Mr G. Hiley QC with Mr G. Maloney (instructed by Camerons) appeared for Western Mining Corporation Limited. Mr B.A. Keon-Cohen with Mr R. Howie (instructed by Arnold Bloch Leibler) appeared for the applicants. Mr M. Wright QC with Ms M. Sloss (instructed by Victorian Government Solicitor) appeared for the State of Victoria.