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Editors --- "Re Gunai People - Case Summary" [1997] AUIndigLawRpr 32; (1997) 2(2) Australian Indigenous Law Reporter 265

Re Gunai People

17 January 1997, Perth

Aboriginal and Torres Strait Islanders -- Native Title -- Application for a determination for Native Title -- Determination of Party Status standing -- ss. 68, 253, Native Title Act 1993 -- whether a person's interests are affected.

Words and Phrases: "Person's interests may be affected"

Section 68 of the National Title Act 1993 (Cth) ("NTA") provides, in part, that a person may be a party to the application if the "person's interests may be affected by a determination in relation to the application." A definition of "Interest" in relation to land and waters is contained in s. 253 of the Act. Section 253, NTA provides:

"`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

(a) a restriction on the use of the land or water, whether or not annexed to other land or waters;"

Held:

Each of the persons and organisations seeking party status were entitled to be a party.

The definition of "interest" in s. 253, NTA does not apply in determining whether a person's interests may be affected for the purposes of s. 68, NTA. "Interests" for the purposes of s. 68, NTA depends upon a "broader concept of interests consistent with the general rules of standing to be a party in proceedings in the Federal Court." Members of the Yorta Yorta Aboriginal Community and Ors v The State of Victoria and Others (1996) 1(3) AILR 402 Followed.

Whether recreational use of land or waters will be affected by a determination of native title will depend upon the scope and nature of the native title asserted.

French, J:

On 20 October 1995 an application for a native title determination was lodged by Roma Adelaide Bryant. The persons claimed in the application to hold native title were described as:

"The members of the Bryant family, their kin and descendants known to be associated with the Red Bluff area, Toorloo Arm, Lake Tyers and Lake Tyers Beach, Shelley Beach and the Ninety Mile Beach, being members of the Gunai people."

The general location of the claim was described as:

"Areas of Crown land and Aboriginal reserve at Lake Tyers, and rivers, creeks and lakes, beachfront and sea in the area of Lake Tyers and Ninety Mile Beach in East Gippsland."

The description of the claim area contained in the application and reflected in the Register of Native Title Claims is as follows:

"The claim area is situated in the East Gippsland region. The land claimed includes allotments 28B, 22, 22A to 22U, 28A, 28, 29, 30, 31, 32, 33, 34, 35, 35A, 36, 37, 38, 39, 40 in the Township of East Cunninghame, Parish of Colquhoun and County of Tambo Allotment 35A includes a site temporarily reserved for "Aboriginal Inhabitants" pursuant to Victorian Government Gazette, No. 35 -- April 24, 1968. The remaining allotments are vacant Crown land locally referred to as the "Bryant familys Red Bluff" and the "Red Bluff Wildlife Reserve". Allotments 35 and 35A are bounded on the western side by Cliff Road. Allotments 35 to 40 are bounded on their northern side by Lake Tyers Beach road. Allotments 22 to 34 are bounded on their southern side by the Ninety Mile Beach. Seas claimed include, as far as the eye can see but for the purposes of this description, 22 nautical miles from the shoreline. Beachfront along the Ninety Mile Beach, including Shelley Beach and Lake Tyers Beach, and lies between the township of Lakes Entrance and the area described as Tildesley West. The waters included in the claim for which collaborative water rights are sought with other Gunai people (in particular East Gippsland Aboriginal Co-operative and Lake Tyers Aboriginal Trust) are: Lake Bunga to its outlet at the Ninety Mile Beach, Cunningham (sic) Arm -- the entire course of Cunninghame Arm. Stoney Creek, Toorloo Arm, Blackfellows Arm, Fishermans Landing Arm, Crosses Landing, Boggy Creek, Nowa Nowa Arm and Lake Tyers.

In particular, Lake Tyers and its several arms including Stony Creek from its source to the point at which it falls into Lake Tyers, Toolaroo Arm from Stony Creek to the point at which it falls into Lake Tyers, Blackfellows Arm from its source to the point at which it falls into Lake Tyers, Fishermans Landing Arm from its source to the point at which it falls into Lake Tyers, Nowa Nowa Arm from Boggy Creek to the point where it falls into Lake Tyers.

The area falls within the new municipal boundary of East Gippsland. ..."

The area under claim is said to be approximately 300 acres.

The native title rights and interests traditionally asserted are expressed thus:

"We the claimants state that we are Gunai people, and that we, some of our ancestors, and all our children have been born into Gunai society and territory. The Gunai and their ancestors have held title over this land since time immemorial, and continued in possession since European occupation.

We, the Bryants, have, within living memory, resided upon the claimed lands, taken sustenance from the land and adjacent waters and protected the land and waters in accordance with our traditions.

The native title interests that we the Bryants claim include in the following:-

1. the sole right to use and occupy of (sic) the area described as the "Aboriginal Inhabitants Reserve", described in the particulars of the claimed area.

2. in accordance with traditions, the right to a collaborative use of the rivers, beaches, waters, and other lands and all resources, including subsurface resources, contained within the greater claimed area, such rights to be exercised with other Gunai people subject to and in accordance with our traditions;

3. the use of the rivers waters and the country for social, economic, and ritual purposes in accordance with our traditions over generations, for example -- social and other gatherings -- the collection of plant foods -- the collection of marine and terrestrial animal foods -- the collection of bush medicines -- the collection of raw materials;

4. the right to care for, and the custody and responsibility of and for the land, resources and waters;

5. the right to develop and adapt responsibilities and duties to the land and waters as the custodians of same, pursuant to local Aboriginal usage, developed over generations;

6. the right to move freely on the land and waters;

7. the right to take marine animals, animals and products from the land and waters;

8. and the right to engage in exchange of produce and resources taken from the claimed land and waters."

A number of persons and organisations have notified the Registrars delegate under s. 68(2)(b) of the Native Title Act 1993 that they want to be parties in relation to this application. It is necessary for the purposes of Division 1 of Part 3 of the Act to decide whether the interests of these persons may be affected by a determination made pursuant to the application.

The persons and organisations who want to be parties are as follows:

1. J.G. Grimshaw. Mr Grimshaw is a resident of Lake Tyers Beach who frequently enjoys walking along the beaches, swimming and fishing in the waters off the Ninety Mile Beach and also in Lake Tyers and its various creeks and inlets.

He is concerned that if the claim succeeds it will restrict the free and unrestricted access which he presently enjoys.

2. Lake Tyers Beach Sports and Angling Club. This Club comprises over 65 members who use the waters and surrounding areas of Lake Tyers daily for recreational fishing. Other members use water ways and surrounding areas for other recreational purposes including water skiing, canoeing, swimming, hunting and sailing. All of these activities are presently enjoyed without cost or restriction.

3. Neville and Marjorie Cogger. Mr and Mrs Cogger operate the Ocean Lake Holiday Park at Gully Road, Lake Tyers Beach. They cater for visitors who come to Lake Tyers to enjoy fishing, swimming and other leisure pursuits in the area which are freely accessible to all. They are concerned that if the claim were to succeed, it would have a devastatingly adverse effect on their business.

4. Peter and Annita Allsop. Mr and Mrs Allsop operate Lake Tyers Beach Licensed Supermarket situated on Lake Tyers Beach. Their business relies upon trade from many visitors to the area particularly in summer. They are concerned about a possible loss of patronage of visitors if the claim succeeds.

5. Lake Tyers Beach Progress Association Inc. This is an incorporated body with a range of objectives relating to the improvement of Lake Tyers. It seeks to represent the interests of its members, existing residents and visitors for rights of free and unrestricted access to the forest, Lake, beach and sea for the purposes of active and passive recreation and quality life style.

6. Stratford and District Angling Club. This Club has 150 affiliated and associated members. Its main activity is recreational fishing. Its concern is that the native title application will affect Club fishing and access by the general public to the lands and waters under the claim.

7. James L. Whelan. Mr Whelan is a property owner at Lake Tyers who has lived there all his life and has been accustomed to using the Lake, land and beach. He wishes to protect his right of free access to the land and waters.

8. Christopher Whelan. Mr Whelan is a property owner at Lake Tyers and has lived in the area all his life. He wishes to protect his rights of free access to the land and waters.

9. Victorian Field and Game Association Inc. The Association represents recreational hunting and sporting shooting interests of members of its branches and affiliates throughout Victoria. It seeks to become a party to represent the interests of many of its members at a branch and individual level who use and/or are associated with the claim area in the conduct of the activities of the Association.

10. Douglas Roy Thompson. Mr Thompson is part owner of a property adjacent to the claim area. His selection of the property for a holiday home was, he says, based on free access to the Lake, the beach and Crown land around the property.

The persons who have status as parties to an application are defined in s. 68 of the Native Title Act 1993 which provides:

"68 (1) The applicant is a party in relation to the application.

(2) Another person is a party in relation to the application if:

(a) the person is covered by any of subparagraphs 66(2)(a)(i) to (vi) or the persons interests may be affected by a determination in relation to the application; and

(b) the person notifies the Registrar, in writing, within the period specified in the notice under section 66, that the person wants to be a party in relation to the application."

The scope of "interests" which may be affected by a determination is not identified in s. 68. As appears from s. 66(2)(a) it extends to any person who holds a proprietary interest in any of the area covered by the application, being an interest that is registered in a register of interests in relation to land or waters maintained by the Commonwealth or State or Territory Government.

Section 253 of the Act defines an "interest" in relation to land or waters exhaustively as:

"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;"

It is questionable, although arguable, whether the recreational use of land by a member of the public who has no legal interest in it constitutes the exercise of a right of free access within the meaning of the definition in s. 253.

In Yorta Yorta v Victoria (unreported, Fed Ct, Olney J, 28 November 1995), Olney J held that the Victorian Field and Game Association could be joined as a party in native title proceedings which had been referred to the Federal Court after mediation by the Tribunal. His Honour admitted the Association under s. 84 of the Act, which provides:

"84 (1) The persons who were parties under section 68 in relation to the application are parties. (2) A person may seek leave of the Federal Court to be joined as a party to proceedings if the persons interests are affected by the matter or may be affected by a determination in the proceedings."

By s. 80 it is provided that the provisions of Part 4 (including s. 84) apply in proceedings in relation to applications lodged with the Federal Court under s. 74.

Gray J, sitting as a Presidential Member of the Tribunal in the Yorta Yorta matter, declined to recognise the Association as a party for the purposes of s. 68.

Although I have hitherto taken the same general view as Gray J that the right of a person to be a party depends upon possession of an interest within the meaning of s. 253, I am persuaded by the reasoning of Olney J that it is not necessarily so limited but depends upon a broader concept of interest consistent with general rules of standing to be a party in proceedings in the Federal Court. There is no relevant distinction between the provisions of s. 84 and the second limb of s. 68(2)(a) of the Act. It would be remarkable if there were. For if there were, persons could be refused recognition as parties to an application pending in the Tribunal, but accorded recognition after the matter had been referred to the Federal Court.

Having said that, it is not every member of the public or every recreational user of land whose interests may be affected by a determination of native title. The possession of general views about equality of access to land does not indicate the existence of an interest. As Gibbs J observed in Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 at 530, in relation to general rules of standing to bring an action:

"However, an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi."

Whether a recreational use of the land or waters affected by an application would be affected by a determination will depend upon the scope and nature of the native title asserted. If there is asserted a right of exclusive possession to areas where the public has free access, then members of the public who use such areas may properly say that their interests may be affected.

A determination which might lead to some restrictions upon hitherto free rights of access will fall into a similar category.

On the other hand, a native title claim asserting rights co-existent and consistent with the continuing free and unrestricted recreational use of the Lake and other areas would weaken the case of recreational users for standing as parties. Each case must be assessed having regard to its own facts. Persons with defined statutory common law or equitable interests will have standing. The broader categories of persons such as recreational users will be accorded standing depending upon an assessment of the interaction between their activities and the nature of the native title rights and interests which are asserted.

The standing of associations depends upon the interests of their members and upon whether activities organised or conducted by the associations could be restricted or limited by a determination of native title.

In the present case, the applicants remain in sole occupation of the Aboriginal Reserve. They do not, on the face of it, claim exclusive possession of the rivers, beaches, waters and other lands within the area. Although, the claimed right to a collaborative use is to be exercised "with other Gunai people subject to and in accordance with our traditions". The content of the native title rights claimed implies the exercise of various forms of control over the use of the land, resources and waters under claim.

It cannot be denied that the native title rights and interests as presently asserted may have the effect of restricting or authorising the restriction of free access by members of the public to some parts of the land or waters under claim. This, of course, is subject to the existence of any legislative regime which protects legal rights of access and which would prevail over any inconsistent native title rights. These matters cannot, however, be determined at this stage. It is sufficient to say that on the claim as presently framed, the interests of recreational users of the land and waters may be affected by a determination pursuant to the application.

On that basis, I am prepared to accept that each of the persons and organisations seeking party status is entitled to it.

It may be that these persons and organisations will feel free to withdraw as parties if and when the applicants are able to indicate more precisely the limits of the native title determination which they seek. But that is a matter which can be explored through the mediation process.