Strickland & Nudding on behalf of the Maduwongga People v Native Title Registrar

Statutory Framework 5 By virtue of the 1998 amendments to the Native Title Act all new native title determination applications are instituted in the Federal Court. Native title applications which had been lodged with the National Native Title Tribunal under the Act as it stood before the amendments, and which had not been referred to the Federal Court under s 74 of the Act, became proceedings in the Federal Court by operation of the transitional provisions of the amendments. The relevant provisions are set out in Part III of Schedule 5 of the Native Title Amendment Act 1998. 6 Division 3 of the Native Title Act sets out the conditions to be satisfied if future acts affecting native title are to be valid. Future acts are defined in s 233 of the Act and cover the making, amendment or repeal of legislation on or after 1 July 1993 and any other act that takes place on or after 1 January 1994. In the case of certain classes of future acts covered by ss 24IC and 24MD the validity of the acts is conditioned on satisfaction of the requirements of Subdivision P which affords to registered applicants what is broadly called a right to negotiate about certain classes of proposed future acts. Section 25, which is the first section in Subdivision P, sets out a convenient overview of its provisions: "(1) In summary, this Subdivision applies to certain future acts done by the Commonwealth, a State or a Territory that are of any of the following kinds: (aa) certain acts covered by section 24IC (which deals with permissible lease etc renewals); (a) certain conferrals of mining rights; (b) certain compulsory acquisitions of native title rights and interests; (c) other acts approved by the Commonwealth Minister. (2) Before the future act is done, the parties must negotiate with a view to reaching an agreement about the act. (3) If they do not reach an agreement, an arbitral body, or a Minister, will make a determination about the act instead. (4) If the procedures in this Subdivision are not complied with, the act will be invalid to the extent that if affects native title. (5) States and Territories may make their own laws as alternatives to this Subdivision. The Commonwealth Minister must be satisfied as to certain matters before such laws can take effect." 7 Subdivision P applies to a future act if it falls into the relevant category and the act is done by the Commonwealth, a State or a Territory, designated "the Government party" (s 26(1)). Before such an act is done, the Government party must give notice of it in accordance with s 29. It must give notice to any registered native title claimant in relation to any land or waters that will be affected by the act. It must also notify other specified bodies and the public (s 29(3)). The Act defines "negotiation parties" who must negotiate with each other in good faith with a view to reaching agreement about the doing of the act or the doing of the act subject to conditions to be complied with by any of the parties. The negotiation parties are the Government party, any native title party and any grantee party. Native title parties include registered native title claimants in relation to the land and waters affected by the act and any person who, four months after the notification day prescribed by subs 29(4), is a registered native title claimant in relation to any of the land or waters affected by the act. There are other requirements and conditions which it is not necessary to canvass for present purposes. 8 By s 31 of the Act the Government party is required to give all native title parties an opportunity to make submissions to it in writing or orally regarding the act and the Government party, the native title parties and any grantee party must negotiate in good faith with a view to reaching agreement about the doing of the act. If six months have passed since the notification day without any agreement being reached, then any of the negotiation parties may apply to the arbitral body, in this case the National Native Title Tribunal, for a determination under s 38 in relation to the act. A determination under s 38 is a determination that the act must not be done or that it may be done or that it may be done subject to conditions to be complied with by any of the parties (s 38(1)). 9 The reference to these elements of the future act provisions of the Native Title Act is sufficient to indicate that registration of a native title claim confers upon the registered applicants important procedural rights. It constrains the ability of the State Government to proceed to do a valid future act until, in the case of those acts to which Subdivision P applies, it has negotiated an agreement with the applicants or secured an arbitral determination that the act may be done. 10 Many of the elements of the statutory scheme setting up the right to negotiate process were in place under the Native Title Act 1993 as it stood prior to the 1998 amendments. In the joint judgment in North Ganalanja Aboriginal Corporation v State of Queensland (1996) 185 CLR 595 it was said of the previous regime at 616: "…once an application for determination is accepted, the Act maintains the status quo between the registered native title claimant on the one hand and the Government and those having proprietary interests or seeking rights to mine on the other, unless the parties negotiate and agree on the resolution of their respective claims or a competent authority makes a binding decision." 11 The process of registration has been significantly changed as a result of the 1998 amendments. Prior to those amendments judicial construction of the Act required that registration occur immediately upon lodgment of a claim with the National Native Title Tribunal (Northern Territory v Lane (1995) 59 FCR 332; Kanak v National Native Title Tribunal (1995) 61 FCR 103). The acceptance of claims which followed upon registration was treated as an ex parte process in which the Native Title Registrar was required to decide, on the face of materials provided by the applicants, whether or not to accept their claim. In so doing, the Registrar was not permitted to resort to extraneous material and, in particular, was not permitted to receive evidence or submissions from third parties - North Ganalanja Aboriginal Corporation (supra) at 620-621. 12 The statutory process of acceptance by the Registrar no longer exists as applications are now commenced as proceedings in the Federal Court. However, the Registrar is required to consider applications for native title determinations to decide whether they should be placed on the Register of Native Title Claims. Upon such registration the claims attract the right to negotiate outlined above. There is provision also for the registration test to be administered in respect of claims already on foot prior to the amendments even though, by virtue of their lodgment with the Tribunal, they were on the Register of Native Title Claims. It is unnecessary for present purposes to set out the various circumstances in which the registration test may be applied to pre-amendment claims. Suffice it to say that a very large proportion of pre-amendment claims may be subject to the Registrar's scrutiny for the purpose of determining whether or not they should remain on the Register. 13 A significant difference between the law as it stood prior to the amendments and the post-amendment law is that the Registrar must be satisfied of a number of conditions before a claim may be placed on the Register. Section 190A(6) provides: "The Registrar must accept the claim for registration if the claim satisfies all of the conditions in: (a) section 190B (which deals mainly with the merits of the claim); and (b) section 190C (which deals with procedural and other matters). In any other case, the Registrar must not accept the claim for registration." 14 The conditions relating to the merits of claims set out in s 190B require, inter alia: 1. Identification of the area subject to native title. 2. Identification of the native title claim groups. 3. Identification of the native title claim. 4. Demonstration of a factual basis for the native title claim. 5. The Registrar must consider that prima facie at least some of the native title rights and interests claimed in the application can be established. 6. At least one member of the native title group must have or previously have had a traditional physical connection with any part of the land or waters covered by the application or previously had and would reasonably have been expected currently to have a traditional physical connection but for things done by the Crown or a statutory authority of the Crown or a holder of a lease over any of the land or waters. The application and accompanying documents must comply with the requirements of s 61A which forbids the making of applications where there have been previous native title determinations or exclusive or non-exclusive possession acts. There is also a condition excluding registration in the case of applications in areas where native title rights and interests have been extinguished. Section 190C sets out the procedural conditions. These relate to the provision of all requisite information, the absence of any previous overlapping claim with common membership and the identity of the claim native title holders, requirements for uncertified applications, overlapping representative body areas and the definition of the area. Relevant for present purposes is the procedural condition under s 190C(3) which provides that: "The Registrar must be satisfied that no person included in the native title claim group for the application (the currentapplication) was a member of the native title claim group for any previous application, if: (a) the previous application covered the whole or part of the area covered by the current application; and (b) an entry relating to the claim in the previous application was on the Register of Native Title Claims when the current application was made; and (c) the entry was made, or not removed, as a result of consideration of the previous application under section 190A." 15 In the present case the Maduwongga claim was not accepted for registration and was removed from the Native Title Register (being a pre-existing claim) apparently for failure to comply with the overlapping claim condition referred to above. 16 In contra-distinction to the position that existed prior to the amendments, s 190A(3) requires the Registrar in considering a claim for registration to have regard to: "(a) information contained in the application and in any other documents provided by the applicant; and (b) any information obtained by the Registrar as a result of any searches conducted by the Registrar of registers of interests in relation to land or waters maintained by the Commonwealth, a State or a Territory; and (c) to the extent that it is reasonably practicable to do so in the circumstances - any information supplied by the Commonwealth, a State or a Territory, that, in the Registrar's opinion, is relevant to whether any one or more of the conditions set out in section 190B or 190C are satisfied in relation to the claim." The Registrar may also have regard to "such other information as he or she considers appropriate". 17 It can be seen that the Registrar is obliged to have regard to information supplied by governments if, in the Registrar's opinion, it is relevant to one or more of the conditions set out in s 190B or 190C. This does not mean that the adversarial procedure adopted in relation to the acceptance of the claim in the North Ganalanja case and disapproved by the High Court is now authorised in relation to the administration of the registration test. There is nevertheless plainly an opportunity for governments to provide information to the Registrar which is relevant to registration.

The Joinder Question 18 The present proceedings are brought under s 190D of the Act. Under that section where a claim is not registered, the Registrar must, as soon as practicable, give the applicant and the Federal Court written notice of his or her decision including a statement of the reasons for it (s 190D(1)). In subs 190D(2) it is then provided: "If the Registrar gives the applicant a notice under subsection (1), the applicant may apply to the Federal Court for a review of the Registrar's decision not to accept the claim." The Court has jurisdiction to hear and determine an application made to it under subs (2) (s 190D(3)). 19 The nature of the review proceedings in the Federal Court has recently been considered by Kiefel J in Powder Family, on behalf of the Jetimarala People v Registrar, National Native Title Tribunal [1999] FCA 913, a decision given on 5 July 1999 in Brisbane. After a careful review of the provisions of the Act relating to the administration of the registration test her Honour said: "The nature of the Registrar's decision, and the materials provided for, upon which it is based, is such as to be suitable for review in the administrative law sense. The function to be undertaken by the Registrar is not one which could readily be undertaken by the Court, which lacks necessary knowledge of other native title applications and would involve it in searches for information before fact-finding. There is no authorisation of a rehearing by the Court to be gleaned from the Act and the provisions surrounding those in question. What is provided for is a review of the legality of the Registrar's decision on the established grounds, and one which may be undertaken expeditiously, given the requirement that the Registrar furnish reasons as soon as possible." (at 13) I respectfully agree with her Honour's conclusion in that respect. 20 In that case a mining company, Marlborough Nickel Pty Ltd had been joined as a respondent by Drummond J on 25 June 1999. The company had applied for the grant of mining leases in the area of the claim. The proposed grant of the leases was the subject of a s 29 notice issued by the Queensland Government. The company plainly had an interest in the application for review of the Registrar's refusal to register the claim. Drummond J, in joining the company as a respondent, referred to O 78 r 10(7) and (8) which he characterised as "dealing with applications such as that challenging a Registrar's determination". Subrule (7) provides: "The Court may order that the application be served on, or notice be given to, any person that the Court is satisfied has an interest in the application." Subrule (8) provides: "A person served with, or given notice of, the application may file and serve a notice of appearance and, unless the Court otherwise directs, becomes a respondent to the application on filing the notice of appearance." As Drummond J observed the rules envisage that any person or organisation with a sufficient interest in the subject matter raised by an application, including an application to review the refusal of registration, can be granted party status in respect of that application. I agree with his Honour when he says that the test to be applied is not that contained in any of the provisions of s 84 of the Native Title Act which deals with who are to be parties to claims for a determination of native title. The test is, as his Honour said, the more general one similar to that provided by O 6 r 8 of the Federal Court Rules. His Honour further observed: "The question in determining whether a person not a party to litigation has a sufficient interest to become a party is, in part, governed by whether its rights against or liabilities to any party in the action in respect of the subject matter of the action will be directly affected by any order that may be made in the action." (Powder Family v National Native Title Tribunal [1999] FCA 895) 21 The criteria for joinder of a party under O 6 r 8 were discussed by the Full Court in News Limited v Australian Rugby Football League Ltd (1996) 64 FCR 410 at 523-525. The Full Court referred to the judgment of the Privy Council in Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 where Lord Diplock, commenting on a rule based on the precursor to FCR O 6 r 8 said: It has been sometime said as in Moser v Marsden [1892] 1 Ch 487 and in Farbenindustrie AG Agreement[1944] Ch 41 that a party may be added if his legal interests will be affected by the judgment in the action but not if his commercial interests only would be affected. While their Lordships agree that the mere fact that a person is likely to be better off financially if a case is decided one way rather than another is not a sufficient ground to entitle him to be added as a party, they do not find the dichotomy between 'legal' and 'commercial' interests helpful. A better way of expressing the test is: will his rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action?" The Full Court in News Limited at 525 approved the test proposed by Lord Diplock and went on to say: "The test involves matters of degree, and ultimately judgment, having regard to the practical realities of the case, and the nature and value of the rights and liabilities of the third party which might be directly affected. The requirement that a third party's rights against, or liability to, any party to the proceedings be directly affected is an important qualification that recognises that many orders of a court are likely to affect other people to a greater or lesser extent. …The requirement of a direct effect on rights or liabilities differentiates the case where a person ought to be joined, from other cases where the effect of the order on non-parties can be characterised as only indirect or consequential." 22 The State of Queensland was a respondent in the proceedings before Kiefel J and in respect of its status as a party her Honour observed that it did not seem to her that the State was automatically a party to the proceedings. She said: "This is not an application to which subsection 190(4) relates, and which would require the State to be given an opportunity to be heard, as a party to the native title determination proceedings. The registration process, and I would think any applications with respect to discussions made in connexion with it, are not part of the main proceedings. In those circumstances the parties to the review proceedings will not necessarily be the same as those identified by the Statute as interested in the main proceedings. With respect to joinder of a party to applications such as this, neither provisions of s 84(5) of the Act nor O 78 r 8 Federal Court Rules would seem to apply. Orders under O 6 r 8 would however remain open. On normal principles Marlborough Nickel would have an interest in whether the right to negotiate provisions were available to the claimant. The State of Queensland would not however seem to be a necessary party. There will be an order removing it from the proceedings."(at 13-14) In that case the State of Queensland sought its removal from the proceedings. 23 In my opinion, on an application of this kind, whether or not the State is a necessary party, it is a party whose interests will be affected by the outcome of the application. If the application is restored to the Register of Native Title Claims, the State, in its capacity as grantor of mining tenements and other forms of interest affected by Subdivision P of the Act, will be subject to the obligations to invite submissions, to negotiate in good faith and to submit itself to the arbitral process that are imposed by that Subdivision. These are not indirect or consequential effects. They impose statutory obligations on the State in respect of any grant of an interest affected by Subdivision P in the area of the claim. On the other hand it can be said that the issue upon which the application is made to this Court is one not of direct interest to the State as it relates to whether registration was properly refused on the basis of a prior overlapping application with some common membership. However the subject of overlapping claims itself is a matter of considerable and legitimate interest to the State. It is notorious that the prevalence of overlapping claims is a matter which has impacted upon both the mediation of native title claims in Western Australia and other parts of Australia and also the administration of the right to negotiate process. I consider therefore that the State does have a proper interest justifying its joinder because of the content of the application. And certainly it is directly affected by the outcome. 24 Another consideration which is relevant in this case is that if the State is not joined then there is no contradictor. The Registrar is properly taking the position that he will abide the decision of the Court in relation to the application for review. It is in the interest of justice and the proper administration of the Act that the Court have the benefit from parties properly joined of submissions on both sides of the argument. 25 I propose therefore to direct the joinder of the State of Western Australia as a party. I certify that the preceding twenty five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Counsel for the Applicant: Mr G.M.S. McIntyre

Solicitor for the Applicant: Corsers

Counsel for the Respondent: Mr T. Carey

Solicitor for the Respondent: Australian Government Solicitor Counsel for the State of Western Australia: Ms J. Thatcher Solicitors for the State of Western Australia:

State Crown Solicitor Date of Hearing: 3 August 1999

Date of Judgment: 11 August 1999