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Editors --- "Re Tibby Quall - Case Summary" [1997] AUIndigLawRpr 33; (1997) 2(2) Australian Indigenous Law Reporter 269

Re Tibby Quall

26 March 1997

Aboriginal and Torres Strait Islanders -- Native Title -- Application to become a party to an Application for a determination of 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 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 restriction on the use of the land or water, whether or not annexed to other land or waters;"

Held:

For the purposes of s. 68, NTA, the question as to whether a person has interests that may be affected by a determination in relation to the application is to be determined by applying the definition of interest in s. 253, NTA. Re Gunai People (1997) NNTT VC95/1, 17 January 1997, per French J, Not Followed.

Mr Lovegrove's application "revealed no more interests which he holds in common with other members of the public, and which are not within the definition of interest in s. 253, of the Act".

Paul Seaman QC:

Pursuant to s. 69 of the Native Title Act 1993 it is necessary to decide whether or not the interests of Mr Thomas C Lovegrove may be affected by determinations in 5 native title applications.

Each application is made by Mr Tibby Quall who claims a traditional right of the Dangalaba Clan to veto entry upon traditional lands and waters in the Darwin area and the right to deal with intruders according to traditional law.

Application DC96/1 claims beachfront parcels of land adjacent to the Casino and at Myilly Point, Darwin and a considerable area of land (including waters) to the low water mark adjacent to those parcels.

Application DC96/2 claims a considerable area of land (including waters) between the low water mark and the furthest extent of mangrove habitat inland adjacent to the Dinah Beach area in Darwin.

Application DC96/3 claims a Lot in the Town of Nightcliff and another Lot in the Town of Darwin.

Application DC96/4 claims considerable areas of land and waters to the low watermark and all mangrove habitats in and adjacent to East Arm and Middle Arm and Haycock Reach, Darwin.

Application DC96/5 claims all vacant crown land to the low water mark and/or mangrove habitat bounded by the centre of the Elizabeth River in Darwin. It involves a considerable area of waters.

Mr Lovegrove expresses his interest as follows:

"My interest is to preserve for myself and my extended family, any existing rights of entry and use of the land, rivers, creeks, lakes, billabongs, waterholes, beaches or seas within the claim area and the use and enjoyment of any natural resources to which I have an entitlement at present, including any rights I may have to apply for mining interests in the areas."

Section 253 of the Act defines "interest" as follows:

(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;

Unless the contrary intention appears, the definition of "interest" would include interests: Acts Interpretation Act 1901 (Cth) s. 23.

Gray J, as a Presidential Member of the Tribunal in relation to the Yorta Yorta native title determination application VC94/1, held that the right of a person to be a party to an application depended upon the possession of an interest within the meaning of s. 253 of the Act and upon that basis declined to admit the Victorian Field and Game Association as a party.

The application was then lodged with the Federal Court for decision pursuant to s. 74 of the Act. In the referred application Yorta Yorta v Victoria (Fed Ct: unrep. 28 November 1995, Olney J), Olney J allowed the Association to be joined as a party to the Federal Court proceedings.

Olney J's decision turned on the construction of s. 84 of the Act which provides:

(1) The persons who were parties under s. 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 person's interests are affected by the matter or may be affected by a determination in the proceedings.

He said:

First, s. 84(2) makes no reference to an interest in relation to land or waters. It specifically identifies the relevant interests as those of the person concerned without any qualification. Where appropriate, elsewhere in the Act Parliament has chosen to use the term "interests in relation to land or waters" (eg ss. 19(2)(b), 21(1)(a), 21(3), 26(2)(d), 62(1)(b)) but has not used that term in ss. 66(1)(A), 66(2), 68(2)(a), 69(1), 84(1) and 169(3) where the terms "person's interests" or "interests of the person" are used. As a matter of construction it can be inferred that if Parliament had intended s. 84.(2) to refer to a person's interests in relation to land or waters those words would have been used. The only reasonable conclusion is that the section was not intended to be restricted to cases in which a person seeking to be joined as a party could establish that that person has an interest in relation to land or waters which may be affected by a determination in the proceedings.

Second, a determination of native title may include a determination as to 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 (s. 225(b)(ii)). A person may habitually use and/or enjoy land or waters without necessarily having any right or title to do so (eg by the mere acquiescence or licence of the title holder) but could be prevented from so doing should it be determined that the native title holders are entitled to the use and enjoyment of the land or waters to the exclusion of all others. As a matter of ordinary language, it can readily be said that the interests of an habitual user of land or waters may be affected if the native title holders insist on exercising exclusive use or enjoyment of the land or waters. This reasoning leads to the conclusion that the legislative intention expressed in s. 84(2) is consistent with the literal meaning of the words used.

Olney J's decision does not bind me as to the meaning of s. 68(2)(a) and s. 69 of the Act.

In Re Gunai People (NNTT VC95/1, French J, 17 January 1997) the President said:

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 interest 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 fee 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.

Because eligibility for party status is of very considerable significance to the working of the Tribunal's mediation process, I will explain the reasoning which leads me to share Gray J's view and the view formerly held by the President, and to reject Mr Lovegrove's application.

The meaning of "interests" in s. 68(2)(a) and s. 69 of the Act must be derived from the words used by Parliament as understood in their context and for the achievement of the apparent purpose to be attributed to Parliament bearing in mind that the context is peculiar and the legislation is novel and often opaque in its expression. Whilst the Act must be construed in accordance with its terms it would be wrong to construe it narrowly or to sanction procedures that would have the effect of undermining or frustrating its operation as the Parliament envisaged: see Kirby J in North Ganalanja Aboriginal Corporation v Queensland [1996] HCA 2; (1996) 185 CLR 595 [(1996) 1(3) AILR 382] at 652, 653. In Kanak v National Native Title Tribunal (1995) 132 ALR 329 the Full Court of the Federal Court was concerned with the proper method of dealing with documents which did not comply with the formal requirements for a claimant application. Lockhart, Lee and Sackville JJ in their joint judgment said at p. 348:

"In our view, this construction accords with the objectives of the NT Act, as recorded in the preamble to the Act. The preamble recognises the disadvantaged status of Aboriginal people as a group and the need for a special procedure for the just and proper ascertainment of native title. The legislation is clearly remedial in character and thus should be construed beneficially, so as to give the most complete remedy which is consistent with the actual language employed: Bull v Attorney-General (NSW) [1913] HCA 60; (1913) 17 CLR 370 at 384, per Isaacs J; Khoury v Government Insurance Office of New South Wales ([1984] HCA 55; 1984) 165 CLR 622 at 638; [1984] HCA 55; 54 ALR 639."

In my view, Division 1 of Part 3 of the Act is concerned with assembling the parties who will participate in a mediation process in relation to native title determination applications with a view to reaching an agreed determination without recourse to litigation, a matter referred to in general terms in the preamble to the Act as follows:

A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character.

It is immaterial that Brandy v The Human Rights and Equal Opportunity Commission & Ors [1995] HCA 10; (1995) 183 CLR 245 points to the invalidity of some of the provisions of Division 1 to which I now refer.

The parties to an application for a native title determination are determined by the application of ss. 66 and 68 of the Native Title Act.

(a) give notice of the application to all persons whose interests may be affected by a determination in relation to the application; and

(b) if the application is a native title determination application by a person or persons claiming to hold the native title -- record details of the application in the Register of Native Title Claims.

(a) gives notice containing details of the application to:

(i) the registered native title claimant (if any) in relation to the area covered by the application; and

(ii) the Commonwealth Minister; and

(iii) if any of the area covered by the application is within the jurisdictional limits of a State or Territory -- the State Minister or Territory Minister for the State or Territory; and

(iv) any registered native title body corporate in relation to any of the area covered by the application; and

(v) 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, a State or a Territory; and

(vi) any representative Aboriginal/Torres Strait Islander body for any of the area covered by the application; and

(b) notifies the public in the determined way of the application.

(a) if the application is a non-claimant application -- the application will be taken to be unopposed unless the condition in subs. (4) is satisfied within the period of 2 months starting on the day the notice is given; or

(b) in any other case -- a person who wants to be a party in relation to the application must notify the Registrar, in writing, within the period of 2 months starting on the day the notice is given.

Although a deemed notification to persons whose interests may be affected may result from notification to the public I see nothing in s. 66 which suggests that a public interest as opposed to an interest as defined in s. 253 qualifies a person for admission as a party to the mediation process.

Section 68 provides:

(a) the person is covered by any of subparas. 66(2)(a)(i) to (vi) or the person's 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 s. 66, that the person wants to be a party in relation to the application.

Section 69 provides:

(1) If it is necessary for the purposes of this Division to decide whether the interests of a person may be affected by a determination, that matter is to be decided by the Tribunal and, if the Tribunal decides that the interests of a person may be affected, the decision of the Tribunal is conclusive. (2) For the purposes of making a decision under subs. (1), the Tribunal must be constituted by a presidential member.

If at the end of the period specified in the notice under s. 66, the parties reach agreement on the terms of the determination the Tribunal must make a determination in accordance with or consistent with those terms: s. 71. If the Tribunal does not make a determination under s. 71 the President must direct the holding of a conference of the parties or their representatives to help in resolving the matter: s. 72(1). If after the holding of that conference the parties reach agreement as to the terms of a determination, the Tribunal must make a determination in or consistent with those terms: s. 73. As already observed, if the Tribunal does not make a determination under those sections, the Registrar must lodge the application with the Federal Court for decision.

It is to be observed that the Tribunal has no power to extend the time in which a person may apply to be a party nor is it given any discretion as to whether or not a person is to be admitted as a party. Furthermore the person who applies to be a party may appeal to the Federal Court against a decision that his or her interests will not be affected by a determination but the applicant may not: s. 169(3).

In North Ganalanja Aboriginal Corporation v Queensland, supra, at p. 657 Kirby J said:

It is important to emphasise that the purpose of the Tribunal is to facilitate negotiation, discussion and agreement, if at all possible. Where a dispute persists, the Tribunal has no jurisdiction to resolve it. The unresolved dispute is referred to the Federal Court for judicial determination. The proper meaning and application of the registration of claims, envisaged by s. 63, must be understood in the context of such a tribunal with such procedures.

He referred at p. 658 to negotiation and mediation procedures in the following terms:

... the benefit of the negotiation and mediation procedures which Parliament saw as components essential to the just and efficient determination of claims of this kind, necessary because of their "unique character".

It seems to me that very different questions arise as to what must be shown to give a person standing to be a party to litigation in a court and what must be shown to give a person standing to participate in a special statutory scheme which is designed to bring about agreed outcomes of native title determination applications. I see nothing remarkable in a person being denied status to participate in the negotiation of an agreement but being granted status to be heard in litigation.

In my opinion, it is not the intention of the legislation that persons with what are essentially public interests should be entitled to participate in the mediation process. Their interests are protected in other ways.

Firstly, by virtue s. 66(2)(a)(iii) the government of a State or Territory is represented in the mediation because the State Minister or the Territory Minister is a party to the application.

Secondly, s. 212 of the Act provides:

(a) any existing ownership of natural resources by the Crown in right of the Commonwealth, the State or the Territory, as the case may be; or

(b) any existing right of the Crown in that capacity to use, control and regulate the flow of water; or

(c) that any existing fishing access rights prevail over any other public or private fishing rights.

(a) waterways; or

(b) beds and banks or foreshores of waterways; or

(c) coastal waters; or

(d) beaches; or

(e) areas that were public places at the end of 31 December 1993.

By Part 3 of the Native Title (Queensland) Act 1993 the State of Queensland has exercised all those powers of confirmation.

I am of the opinion that the provisions of Division 1 of Part 3 of the Act are to be given a construction beneficial to the making of agreed determinations of native title. The admission as parties of persons whose interests are of a general public nature would require native title parties to negotiate towards an agreed outcome with potentially unmanageable numbers of people and that will have the effect of undermining or frustrating the operation of the Act as envisaged by the Parliament.

The potential for difficulties of that sort was referred to by Olney J in his second Yorta Yorta decision, Yorta Yorta v Victoria (unreported, Fed Ct, Olney J, 7 June 1996) when he said:

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.

I see nothing in the legislation which reveals an intention to put aside the definition of interest in s. 253 of the Act.

In my view, Mr Lovegrove's application reveals no more than interests which he holds in common with other members of the public, and which are not within the definition of interest in s. 253 of the Act.

I share the view of Gray J and conclude that Mr Lovegrove is not a person whose interests may be affected by a determination in any of these five applications.