Walker on behalf of the Ngalia Kutjungkatja People v State of Western Australia

The Application for Joinder 1 On 12 December 2000, an application for a native title determination was filed in the Court by Dolly Walker and Kado Muir on behalf of Ngalia Kutjungkatja People. The application covers an area of about 65,775 square kilometres located between Wiluna to the north, Menzies to the south, Laverton to the east and Mt Magnet to the west. 2 On 29 November 2001, an officer of the National Native Title Tribunal, on behalf of the Native Title Registrar, wrote to AngloGold Australia Ltd ("AngloGold") advising it of the claim and noting that it was the holder of an Exploration Licence E37/618 in the relevant area. AngloGold was advised of its entitlement to become a party to the application and informed of the procedure for so doing which involved sending a notice of intention to become a party to the District Registrar of the Federal Court in Perth. 3 AngloGold found upon inquiry that it had actually surrendered the relevant exploration licence on 5 February 2002. On 21 February 2002, AngloGold's solicitors wrote to the District Registrar enclosing a notice of intention to become a party on the basis that the company was "… holder of Exploration Licence 53/896 … together with others, located within the claim area". An amended notice of intention to become a party was sent on 9 April 2002. The interest then asserted was "… as an applicant for Exploration Licence 53/896 … together with others, located within the claim area." 4 On 12 April 2002, a Deputy District Registrar of the Federal Court wrote to AngloGold's solicitors indicating that it did not appear that an application for an exploration licence would meet the requirement of a current interest in the claim area as prescribed in the Native Title Act 1993 (Cth). AngloGold was asked to advise by no later than 18 April 2002 how the purported interest was said to arise. In a subsequent letter dated 24 April 2002, AngloGold's solicitors asserted that on the basis of its applications for exploration licences and prospecting licences in the area the subject of the native title determination application it had sufficient grounds to be joined as a party. The letter contained a detailed submission in support of that contention. The matter of AngloGold's joinder was then listed for hearing before me on 24 June 2002. 5 The joinder is not opposed by the applicants. Prior to the hearing affidavits were filed in support of the joinder by Duncan Gibbs, the Exploration Manager for AngloGold deposing as to its operations in the affected area and by Radhika Sonali Rajanayagam of AngloGold's solicitors exhibiting a map showing the locations of the applications made by AngloGold for mining tenements and relevant search material. When the matter came on for hearing it was not apparent from the materials or indeed from counsel's submissions whether AngloGold had in fact become a party on the strength of its original interest which had been surrendered and whether it had then ceased to be a party. The sequence of events outlined above only became apparent from an affidavit subsequently filed at my direction on 2 July 2002 by AngloGold's solicitors. The present position is that AngloGold has not been, and is not now, a party to the application and seeks to be joined on the basis of its pending applications for exploration licences and for a prospecting licence. 6 AngloGold is described by its Exploration Manager as an active explorer for gold in the North Eastern Goldfields consistently spending in excess of $10 million annually on exploration activities in that area. It operates the Sunrise Dam Gold Mine near Laverton. The mine is a major open cut operation with an annual production in excess of 300,000 ounces of gold. It employs about 130 staff and 290 contractors. The company has an active exploration program in the Sunrise Dam Gold Mine region seeking additional ore feed for its mill which is located 55 kilometres south of Laverton. Up to eighteen people are involved in these exploration activities. The company also undertakes exploration in the Yandal area and up to ten people are engaged in those activities. The company presently has seventy-seven tenements in the North Eastern Goldfields, it holds seventeen mining leases, twenty-nine exploration licences, twenty-one prospecting licences and ten miscellaneous licences. It has 163 applications for tenements in the North Eastern Goldfields comprising sixteen applications for mining leases, seventy-three applications for exploration licences and seventy-four applications for prospecting licences. 7 The Exploration Manager asserts, and I accept, that AngloGold has a genuine and substantial interest in exploring for gold in the area the subject of the claim. Its budgeted expenditure for exploration within the North Eastern Goldfields in 2002 is in excess of $800,000 and of this sum approximately $100,000 to $150,000 is directed to exploration in relation to tenement applications within the Ngalia claim area. Whether those funds are expended will depend upon whether the tenement applications are granted. 8 The company has applications pending in respect of fifteen exploration licences and four prospecting licences over parts of the Ngalia claim area. A map depicting the locations of the applications in relation to the area was exhibited to Mr Gibbs' affidavit. Altogether the applications cover an area of about 287.8 square kilometres of which 226.5 square kilometres fall within the claim area. The applications relate to exploration licences 36/451, 36/485, 36/486, 37/633, 37/646, 37/647, 37/674, 53/1005, 53/896, 53/946, 53/987, 53/984, 53/994, 53/995 and 53/1032. In addition there are pending applications for four prospecting licences. No objections have been lodged to any of the fifteen exploration licence applications referred to. Seven of the exploration licence applications were recommended for approval on dates ranging from 7 September 2000 to 14 June 2002. It is not necessary to set out the details of those applications and dates for present purposes. 9 There is evidence that no s 29 notice has issued in respect of the proposed grant. That may be academic in relation to the present native title determination application for it was denied registration under the Act. However as it appears there are overlapping claims a s 29 notice may be required in any event.

Qualification for Joinder as a Party under the Native Title Act 1993 10 A person is entitled to become a party to a native title determination application if "the person's interests may be affected by a determination in the proceedings" (s 84(3)(a)(iii)) and "the person notifies the Federal Court, in writing, within the period specified in the notice under section 66, that the person wants to be a party to the proceeding" (s 84(3)(b)). Section 253 of the Act contains a definition of "interest" in the following terms": "Interest, in relation to land or waters, means: (a) a legal or equitable estate or interest in the land or waters; or (b) any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with: (i) the land or waters; or (ii) an estate or interest in the land or waters; or (c) a restriction on the use of the land or waters, whether or not annexed to other land or waters." 11 Prior to the 1998 amendments to the Native Title Act, the entitlement to joinder as a party to an application was established by s 68(2). That section, like s 84(3)(a)(iii) of the post 1988 Act, required that for a person to be a party "…the person's interests may be affected by a determination in relation to the application". The definition of "interest" in s 253 was the same as it is now. In the early days of the administration of the Act it was thought that the definition of "interest" in s 253 applied to limit the kind of interest that would support joinder. That view was rejected by Olney J in Members of the Yorta Yorta Aboriginal Community v The State of Victoria (1996) 1 AILR 402. His Honour's approach was approved by the Full Court in Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1 at 6 (Black CJ), 18 (Lockhart J) and 40 (Merkel J). 12 In the Byron Environment Centre case, Black CJ said: "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 they may be affected in a demonstrable way by a determination in relation to the application." (7) His Honour held however, that there was no reason to conclude from the subject matter, scope and purpose of the Act that the interests need to be proprietary, legal or equitable in nature: "Whilst the interests must be genuine and not indirect, remote or lacking substance, there is no indication that, for example, a person who has a special, well-established non-proprietary connection with land or waters which is of significance to that person is not to be regarded as having interests that may be affected by a determination. To the contrary, the consensual objects of the Act would seem to be advanced if a person with genuine interests of that nature that might or would be affected did have the rights of involvement in the process of native title determination given by the Act to a person who is a party." (8) On the other hand, his Honour found good reason to conclude that the intended outer limits of the notion of "interests" and "affected", with which s 68(2)(a) as it then stood was concerned, encompassed the persons whose "interests" were defined only by their emotional, intellectual, ideological or conscientious concerns (9). 13 Lockhart J, at 19, considered that the meaning of the qualifying expression in s 68(2) was not to be "encased in technical rules". He thought it unwise to attempt to define the class of interests which would qualify for joinder in any definitive sense. But they could not be remote, indirect or fanciful. And Merkel J, at 42, considered that standing as a party under the Act was restricted to persons whose interests: . may be genuinely, demonstrably and not indirectly affected by a determination of native title; . are not remote or so insubstantial that it will be mere speculation as to whether and if so, how they may be actually affected by the determination, . can be defined with reasonable certainty and are in each case readily ascertainable as a matter of fact and law. He also held that the legislature did not intend that those who have mere even if genuine intellectual, ideological, conscientious or emotional concerns or interests in relation to a claim or the area covered by it, should be regarded as persons "whose interests may be affected" for the purposes of ss 68 or 84. 14 There has been a number of decisions on the nature of the interest sufficient to support joinder since Byron Environment Centre. Notwithstanding the amendments in 1998 the approach taken by the Full Court in that case, to the range of interests which qualify for joinder, has continued to be applied having regard to the similarity of the language used in the former s 68(2) and the current s 84(3)(a)(iii). It was applied, without elaboration, by Emmett J in Chapman v Minister for Land and Water Conservation (NSW) [2000] FCA 1114. There his Honour held that landowners adjoining a claim area had a qualifying interest by reason of the possible effect of a native title determination upon rights of public access across the land affected. In Woodridge v Minister for Land and Water Conservation (NSW) (2001) 108 FCR 527, Katz J considered an application by the New South Wales Farmers' Federation for party status on the basis that the claim area might cover leasehold or other interests held by members of the Federation. It was also asserted by the Federation that a determination might have effect as a precedent in relation to other claims affecting interests held by its members throughout New South Wales. It was submitted, notwithstanding the decision in Byron Environment Centre, that the qualifying interest for joinder was limited by the definition of interest in s 253 of the Act. However, as his Honour held, the reasoning of the Full Court in the Byron Environment Centre case as to the effect of the definition of "interest" in s 253 of the Act remained as applicable to subpar 84(3)(a)(iii) of the Act as it was to the former par 68(2)(a). Parliament in enacting the new s 84 had adopted the same words to describe the qualification for joinder as a party as had been construed by the Full Court. 15 After referring to relevant passages from the judgment in Byron Environment Centre, Katz J concluded that the Federation was not entitled to party status. Each of the matters upon which it relied would have done no more than establish indirect interests which were insufficient for joinder. His Honour said: "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… or that activities which the Association conducts in the area covered by the claim might thereby be curtailed, interfered with or otherwise affected….". [33] Moreover its concern to advance, promote and protect rural industries did not amount to an "interest" within the meaning of s 84(3)(a)(iii) but partook of a mere "intellectual concern". 16 Similar issues arose in the unsuccessful attempt by the Chamber of Minerals and Energy of Western Australia Inc to be joined as a party to a native title determination application in Harrington-Smith on behalf of The Wongatha People v State of Western Australia [2002] FCA 184, a decision of Lindgren J. His Honour referred to the Byron Environment Centre decision and the Woodridge decision, holding that they established that a society, organisation, association or other body which voices, protects or promotes the concerns and interests of its members does not, by reason of that circumstance alone, have interests which may be affected by a determination in the proceedings for the purposes of s 84 of the Act. 17 Three other cases, Munn v State of Queensland [2002] FCA 78 (Emmett J); Kooma People v State of Queensland [2002] FCA 86 (Drummond J) and Bissett v Minister for Land and Water Conservation (NSW) [2002] 365 (Tamberlin J) all concerned joinder of native title representative bodies as parties. Neither in the Munn case nor in the Kooma Peoples case was the question of the sufficiency of interests of the representative body determined. In Bissett, Tamberlin J was of the view that it did not necessarily follow that because, under s 84(3)(a)(i), a representative body was included without any requirement to show an "interest" that therefore it could also be a body whose interests might be affected by a determination in the proceedings. In that case the representative body was seeking joinder under s 84(5) not having given notice within the time required under s 66. However the special position of native title representative bodies under the Act indicated that it would be contrary to the public interest and to their statutory role if such a body were excluded because it did not have sufficient "interests". His Honour also said that there remained a discretion to terminate the involvement of a party if it acted grossly unreasonably. He said: "In relation to the asserted appropriateness of a narrow construction of the expression "interests" because of a power to veto an otherwise agreed settlement, the provisions of s 84(8) should be borne in mind. The provision empowers the Court at any time to order a party other than an applicant to cease to be a party to the proceedings. This power could be invoked by the Court if a representative body is a party to the proceedings and adopts a grossly unreasonable approach in relation to a proposed consensual determination of the proceedings. In addition, it should be kept in mind that the Court must always be satisfied that the person or body has the requisite interest in any particular circumstances and this provides a safeguard on the extent to which other persons or bodies can be joined." [24] I take his Honour's remarks not to be limited to the position of native title representative bodies, but to extend to the position of any person or organisation joined as a party to proceedings under the Act.

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