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Australian Indigenous Law Reporter |
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19 March, 1997
Aboriginies and Torres Strait Islanders - native title - Native Title Act 1993 (Cth) - whether subs. 66(1) imposes mandatory duty on Registrar to give notice - whether mandatory for Registrar to give notice pursuant to sub para. 66(2)(a)(v) to holders of mining lease or other proprietary interests registered in a register of interests maintained by the Commonwealth, a State or Territory - whether Registrar erred in law in failing to give notice of application to applicants.
Words and phrases: 'give notice'; 'persons whose interests may be affected'.
Facts:
The Native Title Registrar accepted for mediation an application for determination of native title, the claim area of which included areas covered by mining leases and other mining tenements held by WMC Resources and Central Norseman Gold Corporation. These mining leases and tenements were at the time of acceptance all registered on the register of mining tenaments maintained by the Western Australian Department of Mineral and Energy under the Mining Act 1978 (WA).
Pursuant to s. 66(2)(a) of the Native Title Act 1993 (Cth) (the Act), the Registrar gave notice in writing of acceptance of the application to the State of Western Australia, the Commonwealth, pastoral lease holders whose leases fell within the claim area, and the representative Aboriginal and Torres Strait Islander bodies for the claim area. She also notified the public in the determined way, pursuant to s. 66(2)(b) of the Act. The Registrar did not specifically notify in writing all persons holding a registered proprietary interest in the claim area (s. 66(2)(a)(v)). This way of notifying acceptance of the native title determination application complied with procedures issued by the President of the Tribunal pursuant to s. 123 of the Act.
The applicants did not seek to become parties to the mediation of the native title application within the time period specified in s. 66(3)(b) - two months; but did seek to become parties after the end of that period. The Registrar refused to admit the applicants as parties and also refused to give them written notice of acceptance of the native title determination application.
The applicants sought review of the Registrar's decision to not give them written notice of the acceptance of the native title determination application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) arguing:
Section 66(1)(a) of the Act imposes on the Registrar a mandatory duty to give notice to all persons 'whose interests may be affected' by a determination with the consequences that failure to so act vitiates any subsequent steps; and
Section 66(2) imposes a mandatory duty on the respondent and so required her to give notice pursuant to s. 66(2) to the applicants as persons holding 'a proprietary interest' in the form of mining tenements in the area subject to the claim.
Held:
(i) Section 66(1)(a) imposes a mandatory duty to give notice to all persons 'whose interests may be affected' by a determination with the consequence that failure to comply makes subsequent steps invalid.(ii) Section 66(2) of the Act imposes a mandatory duty on the respondent to give notice of the claim and so required her to give notice pursuant to s. 66(2)(a)(v) to the applicants as persons holding 'a proprietary interest' in the form of the mining tenements in the area the subject of the claim.
(iii) Notification to the public pursuant to s. 66(2)(b) cannot satisfy the mandatory obligations arising pursuant to s. 66(1)(a) in respect of an interest in s. 66(2)(a)(v).
Nicholson J:
This is an application brought pursuant to the Administrative Decisions (Judicial Review) Act 1977 ('the ADJR Act'), seeking to review the respondent's ('the Registrar') decision on 21 June, 1996 refusing to give the applicants notice of Native Title Determination Application WC 95/17 ('the Claim').
The applicants claim to be aggrieved by the decision because they hold interests which may be affected by a determination of the Claim. The consequences of the respondent's decision are that they are not, and are unable to become, parties in relation to the Claim under s. 68(2) of the Native Title Act 1993 (Cth) ('the Act'). Furthermore they will not be parties in relation to the Claim under s. 84(1) of the Act if the Claim is referred to the Federal Court for determination. In addition they would not be entitled to participate in mediation and other proceedings under the Act in relation to the Claim and say that thereby they would be denied natural justice in relation to the determination of the Claim. The applicants seek a declaration that the decision was contrary to law, an order that it be set aside and there be substituted a decision that the respondent give notice of the Claim to the applicants.
Each of the applicants holds mining leases and other mining tenements under the Mining Act 1978 (WA), some or all of which fall wholly or partly within the area covered by the Claim. In the case of the first applicant some of the tenements fall within that area and all are registered in the register of mining tenements maintained at the Department of Minerals and Energy under the Mining Act 1978 (WA). Those tenements were so registered at the time the Claim was accepted on 25 September, 1995 and have been continuously registered since that time.
In the case of the second applicant all the tenements fall wholly within the area covered by the Claim and were granted before 25 September, 1995 and are still in force. They have similarly been registered in the register of mining tenements and have been continuously so registered.
No counsel or other representative appeared for the respondent at the hearing. In view of the apparent significance to the work of the respondent of the submissions made for the applicants, the transcript of submissions for the applicants was provided to the respondent. The respondent then arranged for written submissions in reply and on additional issues arising subsequently.
Section 66 provides as follows:
66.(1) If an application is accepted under s. 63, the registrar must:give notice of the application to all persons whose interests may be affected by a determination in relation to the application; and
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.
(2) The registrar is taken to have given notice to all persons whose interests may be affected by a determination in relation to an application if the registrar:
(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; 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 the 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.
(3) A notice under subs (2) must also state that:
(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 two 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 two months starting on the day the notice is given.
(4) The condition mentioned in para (3)(a) is that a person or persons who claim to hold native title give a native title determination application, that covers any part of the area covered by the non-claimant application, to the registrar or to a recognised State/Territory body entitled to receive it.
The terms of s. 66(2) were referred to by the Full Court in Kanak v National Native Title Tribunal (1995) 132 ALR 329 at 335.
Section 66 is to be understood in the context of the Act as a whole. The purpose of the Act is described as follows:
3. The main objects of this Act are:(a) to provide for the recognition and protection of native title; and
(b) to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings; and
(c) to establish a mechanism for determining claims to native title; and
(d) to provide for, or permit, the validation of past acts invalidated because of the existence of native title.
Section 13(1)(a) of the Act provides that an application may be made to the Registrar under Pt 3 for a determination of native title in relation to an area where no such approved determination is extant. Section 63 falls within Pt 3.
Sections 61 and 62 prescribe the manner in which applications are to be made and s. 63 provides for acceptance.
Section 66 is in immediate juxtaposition to s. 67 which relevantly provides:
67. (2) If(a) within the period specified in the notice under s. 66, a person or persons claiming to hold native title give a native title determination application (the 'claimant application') that covers any part of the area covered by the non-claimant application to the registrar or to a recognised State/Territory body entitled to receive it; and
(b) the claimant application is accepted (whether initially or on appeal and whether or not within the specified period); then:
(c) if the non-claimant application is by or on behalf of a Minister, the Crown in any capacity or a statutory authority - the non-claimant application is taken to be dismissed; or
(d) in any other case - the non-claimant application is taken, for all purposes after the claimant application is given to the registrar, not to relate to the area covered by the claimant application.
That is followed by s. 68 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 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.
Provision is made in s. 69 for a tribunal to decide whether the interests of a person may be affected by a determination. There is provision in ss. 70 and 71 for the Tribunal to determine unopposed or agreed applications. If an accepted application is not so dealt with, s. 72 requires the President to direct the holding of a conference 'of the parties or their representatives' to help in resolving the matter.
Without traversing all the provisions of the Act in detail, it is sufficient to say that broadly the scheme of the Act is that if no agreement is reached in relation to the application, it goes to the Federal Court for determination. Section 84 of the Act provides:
84. (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.
Section 123(1)(e) of the Act provides that, subject to ss. 69 and 124, the President may give directions as to 'the procedure of the Tribunal generally'. Section 69 and 124 have no relevant qualifying effects in the present instance. Procedures came into force by the Native Title (Notices) Determination No. 1 of 1993 ('the Procedures'). Paragraphs 8.1 and 8.3 of the Procedures read:
8. Notification8.1.1 Upon acceptance of an application the Registrar is to consider and determine how to give notice of the application to all persons whose interests may be affected by a determination in relation to it (s. 66(1)(a)). In making such a decision the Registrar must have regard to:
(a) the nature of the application;
(b) the likely number of persons whose interests may be affected by a determination;
(c) the nature and range of interests affected;
(d) the time and expense involved in searching records of proprietary interests;
(e) the time and expense involved in various means of notification;
(f) the means available for bringing the application to the notice of persons who may be affected by a determination including print and media advertising, Aboriginal and Torres Strait Islander representative bodies and other Aboriginal community groups, industry associations, Commonwealth, State and Territory Governments and Local Authorities.
...
8.3 Copies of maps lodged with the application will be made available to the relevant local authorities, within the area affected by the claim for the purposes of public inspection.
In my opinion the Procedures made pursuant to s. 123(1)(e) do not govern or inhibit the interpretation of the Act including either subs. 66(1) or (2) in their terms. The Procedures are subsidiary provisions which are to be understood as such. For the respondent it is accepted that directions pursuant to s. 123 are not capable of overriding the requirements of s. 66, if the construction of that section for which the applicants contend is upheld.
On 21 June, 1996 the applicants by a letter from their solicitors to the respondent required the respondent either to confirm the applicants were parties to the Claim or to give notice of the Claim to the applicants or to provide a statement of reasons for refusing to give notice of the Claim to the applicants. On that date the respondent decided the applicants were not parties in relation to the Claim (a decision which the applicants do not challenge so far as it relates to a party within s. 68(1) of the Act). The respondent further decided not to give notice of the Claim to the applicants ('the decision'). Those decisions were communicated to the applicants by the respondent in a telephone conversation on 21 June, 1996 between the respondent and the solicitors for the applicants.
Following advice of the decision, a written statement of reasons for it was obtained from the respondent pursuant to s. 13 of the ADJR Act on 5 July 1996. In that statement the respondent stated the reasons for her decision were:
The statement further developed the reasons in relation to the decision not to notify tenement holders individually. The respondent stated that after acceptance by the Tribunal of the Claim on 25 September, 1995, notice of the acceptance was given on 5 October, 1995. It was said such notice was in accordance with s. 66 of the Act and paras. 8.1 and 8.3 of the Procedures.
The respondent then set out extracts from the Procedures and quoted s. 66(2) of the Act. In relation to that provision she then stated:
The terms of this subsection, particularly the phrase 'The Registrar is taken to have given notice to all persons whose interests may be affected by a determination in relation to the application ...' provide a mechanism for satisfying the requirements of s. 66(1) which is not exhaustive, having regard to the deeming language of s. 66(2).The Tribunal procedures recognise that the provisions of s. 66(2) are directory, and that the Registrar may adopt such measures as are reasonably calculated to bring the application to the attention of persons whose interests may be affected.
The statement of reasons continued by providing that the public was notified of the acceptance of the application by notice published in certain newspapers from and including 5 October, 1995. She advised that broadcasting services had also been notified and each of the bodies and individuals listed at para. 7.1 of the Procedures were similarly notified. In addition, on that date the lessees of each of eighteen pastoral leases included in the Claim area were notified.
Returning to the question of the notification of mining interests, the respondent stated quotations had been obtained for provision of full current and historical mining tenure information. In the event she decided to accept a quotation of $3,210 for the provision of mapping and current tenure information and mapping information concerning historical pastoral interests. As a consequence the maps provided to her indicated the existence of mining tenements but did not provide details of the holders of those tenements.
The statement continued:
Consequently, although I was aware of the existence of approximately 1600 mining tenements in the application area, as identified only by tenement number in the application, I did not have prompt or economical access to information sufficient to give notice to the holders of these tenements. Accordingly, I did not notify each of the tenement holders individually and did not notify WMC Resources Ltd and Central Norseman Gold Corporation Ltd of the acceptance of the application. The factors which I took into account in reaching this decision were each of the considerations set out at para. 8.1 of the Procedures and in particular:
Essentially the grounds of review maintain the respondent misconstrued the content of the duty imposed on her by s. 66 of the Act. It is said therefore she was in error of law, acted without authorisation by the enactment and improperly exercised the power pursuant to that section.
The grounds are crystallised around principal propositions advanced for the applicants, namely:
I accept the submission for the respondent the question is not whether s. 66(1)(a) is mandatory or directory in its terms. Rather the relevant question is whether the legislature in enacting s. 66 intended that failure to comply with the requirements of it would invalidate further proceedings. The specific intention being sought in these proceedings is the effect upon the validity of subsequent proceedings having regard to the nature of the precondition in s. 66(1), its place in the legislative scheme of the Act and the extent of the failure (if any) to observe it in this particular case: see Tasker v Fullwood [1978] 1 NSWLR 20 and Victoria v The Commonwealth [1975] HCA 39; (1975) 134 CLR 81 at 161-162 and 179. At the latter reference Stephen J said:
Where ... a stipulation may be seen to be of importance in attaining the general object of the statute its total non-observance cannot be sought to be excused, and its intended effect circumvented, by the adoption of a directory construction. A directory construction may none the less be given to such a stipulation if it is of a kind capable of degrees of non-compliance and if some degree of non-compliance can be seen as not necessarily prejudicing the substantial carrying into effect of the general object. If in such a case a directory construction be adopted, the extent of non-compliance in the particular case must then be examined to determine whether what has in fact occurred nevertheless gives effect to the general object of the statute.
The distinction between mandatory and directory enactments is that described in Clayton v Heffron [1960] HCA 92; (1960) 105 CLR 214 at 247 cited in Victoria v The Commonwealth at 162, namely:
Lawyers speak of statutory provisions as imperative when any want of strict compliance with them means that the resulting act, be it a statute, a contract or what you will, is null and void. They speak of them as directory when they mean that although they are legal requirements which it is unlawful to disregard, yet failure to fulfil them does not mean that the resulting act is wholly ineffective, is null and void.
There are a number of considerations which the case for the respondent contends support a directory construction of s. 66(1)(a). The first is that where rights are affected it is not a universal rule that proceedings will be void if notice is not given. Under rules of court applicable in most jurisdictions non-joinder of parties is not fatal to an action and the court may proceed to deal with the matter in controversy so far as the rights and interests of parties actually before it are concerned: see John Cook & Co v Commonwealth [1922] HCA 60; (1922) 31 CLR 394 at 410-411. In The Wik Peoples v The State of Queensland [1994] FCA 967; (1994) 49 FCR 1 at 6, Drummond J at first instance said:
If a decision affecting property is given in a statutory context that affords opportunity to persons interested in the state of affairs that will be created by the decision to participate in the determination, that will be an indication that the public element which must exist before a decision will operate in rem in fact exists. But that is not, I think, essential before a judgment can operate in rem.
He considered that so far as the Federal Court was concerned the Act operates to give effect in rem only to a decision of the Court made in proceedings commenced by application to the Registrar of the Tribunal under s. 13(1) and then transferred to the Court under s. 74 of the Act. He considered that McGovern v Victoria [1984] VicRp 46; [1984] VR 570 was inconsistent with the notion that a judgment affecting a thing can only operate in rem if it is given in circumstances in which all persons interested in the thing have had an opportunity to participate in the decision. In McGovern at 576 it was stated '... a judicial decision which creates title to or affects property in a thing in possession is a decision that determines the status of that thing and, to that extent, is conclusive in rem'. That case concerned a decision forfeiting a boat to the Crown pursuant to the Fisheries Act (Vic). The forfeiture order was held to operate as a judgment in rem, so that the Crown's title prevailed against a person who, without notice of the forfeiture, purchased the boat in good faith from a purchaser of the offender. However, that was a case where the statute gave only the complainant and the defendant in the criminal proceedings opportunity to participate in the forfeiture proceedings. It would be authority to support the view that, notice having been given pursuant to s. 66(2)(a), the determination could operate in rem even though interests not described in s. 66(2)(a) were affected by the determination.
Then it is submitted for the respondent there is potential for substantial inconvenience, and even injustice, if it is the case that any failure to comply fully with the terms of s. 66(1)(a) spell invalidity. This could occur if a very minor interest not having been given notice resulted in the nullity of a determination.
This submission, in my opinion, turns attention to the interrelationship between s. 66(1)(a) and s. 66(2)(a). If notice is given in accordance with the requirements of the latter paragraph the registrar 'is taken to have given notice to all persons whose interests may be affected by a determination in relation to an application'. The applicants' case seeks to keep open for argument on another occasion whether compliance by the registrar with s. 66(2) nevertheless leaves the registrar with a duty to give notice above that of public notification ('non-imputed notice') to other persons whose interests may be affected pursuant to s. 66(1)(a). The words which open s. 66(2) state that the registrar 'is taken to have given notice to all persons whose interests may be affected by a determination in relation to an application' if she complies with the provisions of the subsection. These words are applicable both to the giving of notice containing details of the application to the parties listed in s. 66(2)(a)(i)-(vi) as well as to the notification of the public in the determined way pursuant to s. 66(2)(b). Whether or not the registrar has a duty to give written notice to persons other than those pursuant to s. 66(2)(a) it is clear that s. 66(2) provides a means of notice being given consistent with s. 66(1)(a) being mandatory in its terms. Having effect in its terms it provides a statutory means of avoiding substantial inconvenience and injustice by use of the combination of notice giving details of the application to specific people and to the public ('imputed notice'). That is so whether or not the registrar has a wider duty not the subject of submissions on this application.
Then it is submitted for the respondent that the Federal Court has the broadest possible powers of review pursuant to ss. 167 and 168 of the Act. Section 167(6) provides that after the twenty eight days allowed by s. 167(5) for an application to be reviewed after a determination is registered, a party may apply for review only with the leave of the Court and the Court may grant such leave only 'in exceptional circumstances'. It is submitted there is therefore an ability in the Court to remedy by way of review any injustice resulting from a failure to give notice pursuant to s. 66 so that it could not have been the intention of the legislature that any failure to comply fully with the terms of s. 66 would result in a nullity. In my opinion these provisions do not support a directory interpretation of s. 66. The existence of a right of review and of a grant of leave, the latter being entirely dependant on exceptional circumstances, cannot determine the character of s. 66 which must be viewed in relation to the objects and purpose of the Act as a whole.
The submissions for the respondent then turn to the content of s. 66(1)(a). It is firstly submitted that the obligation there arising is to 'give notice'. It is said this expression does not import any particular procedure as a matter of law and does not require that a document be created or notice be in writing. Consequently, it is argued the provisions of s. 28A of the Interpretation Act 1984 (Cth) are not attracted by the expression.
It is further submitted that s. 66(1)(a) deliberately uses the very wide expression 'give notice' in recognition of the fact there will be very many different types of interest to which the section is potentially applicable and that the mode of notification will vary depending upon relevant factors. It is said this is consistent with a practical approach taken to questions of notice in other areas of law: cf Hilaire v Harvie (1950) 68 WN (NSW) 61 recognising the appropriateness of substituted service for practical reasons.
For the respondent it is therefore contended it is unreasonable to construe s. 66(1)(a) as requiring the giving of notice in writing served individually upon each person to be notified. Support for that is sought by reference to s. 66(2) which specifically provides that notification of the public may be 'in the determined way' which by operation of s. 252, may include notice in newspapers or by radio broadcasts or television transmissions.
For the applicants it is contended the effect of s. 66(1)(a) in relation to the form of notice is to be understood by consideration of that paragraph in relation to s. 66(2). It is submitted for the applicants that by providing in the latter subsection for the possibility of imputed notification of persons with unregistered proprietary interests and members of the public by newspaper advertisements, the legislation manifests an intention that the interests falling within s. 66(2)(a) should be served with notice in the form of a document and that imputed notification is only sufficient where it is expressly authorised. Section 66(2)(a) requires the giving of 'notice containing details of the application'. That requirement provides support for the view that the provision of notice should be in a documentary form unless otherwise authorised. The setting of s. 66 is such that the rights which it addresses are not such as should be determined upon imputed notification as sufficient for the operation of the legislation: cf Secretary, Department of Social Security v Garratt [1992] FCA 337; (1992) 109 ALR 149 at 157. In my opinion s. 66(1)(a) considered in its textual and policy context requires the giving of a written notice other than where provision is expressly made to the contrary in s. 66(2)(b). It follows that the provisions of s. 28A of the Interpretation Act are attracted to determine the appropriate mode of service in that case where applicable in its terms.
Examination of the language of s. 66(1)(a) and the scope and object of the Act lead to the conclusion the paragraph is mandatory in the sense that subsequent acts done under the Act are invalid if there is non-compliance with it. As presently advised, compliance with it will follow from compliance with s. 66(2). Examination of the Act discloses Parliament's intention was that the outcome of proceedings before the Tribunal could be a determination which, when registered with or determined by the Federal Court, will be binding upon persons affected by the application, subject only to the possibility of review by that Court: see ss. 70, 71, 73, 165-170 of the Act. The character of that intention is not affected by issues arising from Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245; cf The Wik Peoples v The State of Queensland (1994) at 6, 8 and 10-11 (unaffected on appeal). When s. 66(1)(a) is viewed in that context and in the context of s. 66(2) it is seen as one designed to bring natural justice to persons whose interests may be affected. Notice is therefore important to attaining the general object of the statute of achieving a binding determination in relation to Native Title. If the interests of a person are affected by an application the carrying into effect of the general object of the Act would be defeated in relation to that interest if no notice were given. Where the object is the binding nature of Native Title in relation to all interests to which it relates, degrees of non-compliance become degrees of prejudice to the substantial achievement of the general object, subject always to the effect of s. 66(2). I therefore consider s. 66(1)(a) is mandatory.
On its face, by operation of its opening words, s. 66(2) of the Act is a deeming provision and one which is directory (by use of the word 'may'). However, for the applicants it is submitted that on a true understanding of the operation of the subsection it is mandatory in its terms.
This contention is supported by reference to s. 66(3). It is said that because no other provision is made for notice to be given to the same effect as s. 66(3), unless s. 66(2) is complied with no notice pursuant to s. 66(3) will be given. The implication of this, it is contended, is that the legislation assumes notice to the affect of s. 66(3) will at least be given pursuant to the notice arising under s. 66(2). This is supported by reference to s. 68(2)(b) which provides the rights of a person to be a party are dependant upon notification to the Registrar 'within the period specified in the notice under s. 66'. The consequence is that s. 66(3) - which arises from the giving of notice under s. 66(2) - is seen as the exclusive method of giving the notice upon which s. 68(2)(b) becomes operative. The consequence is, so the submission runs, unless s. 66(2) is mandatory so that notice follows under s. 66(3), there is nothing upon which s. 68(2)(b) can operate.
It is submitted this argument may be tested by positing the position which would emerge if it was the case that the Registrar had a discretion whether or not to give a notice under s. 66(2). If that was the case, it is said there would still be the obligation upon the Registrar pursuant to s. 66(1)(a). Such a person would be eligible to be a party pursuant to s. 68(2)(a) but would be required to have notified the Registrar 'within the period specified in the notice under s. 66' when no such period would have been specified in relation to that person.
In my opinion it does not follow from s. 68(2)(b) that the only period for a notice under s. 66 is the period in s. 66(3). The former paragraph uses the words 'within the period specified in the notice under section 66'. The reference to 'the notice under section 66' is capable of being a reference to a notice under s. 66(1)(a) as well as under s. 66(3). Only in the latter case is the period of two months mandated. In the case of a notice under s. 66(1)(a) no such time limit is fixed. However, s. 68(1)(b) carries the implication that a time limit should be included in such notice. The Act is therefore able to work without construing s. 68(1)(b) as requiring s. 66(2) to be mandatory.
Similarly the reference in s. 67(2)(a) to 'the period specified in the notice under section 66' is capable of operating both by reference to the period mandated under s. 66(3) for a notice under s. 66(2) as well as the period selected in a notice under s. 66(1).
However, again I consider the true interpretation of the subsection is only to be found by reading it closely with s. 66(1). Given that I consider s. 66(1)(a) is mandatory in its terms, it follows that compliance with s. 66(2)(a) is mandatory because it identifies those interests which must be notified pursuant to s. 66(1)(a) in order for the registrar to be 'taken to have given notice to all persons whose interests may be affected by a determination in relation to an application'. In discharging the mandatory duty arising pursuant s. 66(1)(a) the registrar is not able to avoid giving notice to those persons specified in s. 66(2)(a). The textual considerations relating to these subsections, and the policy which they serve, again compel this conclusion.
The applicants claim to fall within s. 66(2)(a)(v) and to be persons who hold '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'.
There are related definitions which affect an understanding of these words. In s. 253 it is provided that:
'interest', in relation to land or water, 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.
'Land' is defined as follows by the same section:
includes the airspace over, or subsoil under, land, but does not include waters.
There is potential for argument on whether certain mining tenements are 'a proprietary interest' in any of the area covered by the application and whether particular mining tenements are registered in a register of interest in relation to 'land or waters' of the requisite type. However, on the issue whether the applicants' mining tenements fall within s. 66(2)(a)(v) the respondent does not desire to make any submissions for the purposes of the present case. It follows there was an obligation on the registrar to give notice to the applicants in respect of their mining leases and other tenements.
If that were not the case - for example, if the particular mining interests were not able to be characterised as proprietary interests or the register was not one in relation to land or waters - the question would arise whether the mining tenements which did not fall within s. 66(2)(a)(v) were nevertheless interests which could be affected by a determination and in relation to which the registrar was required to give notice pursuant to s. 66(1)(a). It would seem apparent that those mining tenements would be interests of the requisite character within that paragraph: cf Members of Yorta Aboriginal Community & Ors v The State of Victoria [(1996) 1(3) AILR 402]. As has been seen, the question whether the registrar would then have a mandatory duty to give non-imputed notice to those interests is an issue reserved for submission on another occasion.
In my opinion notification to the public pursuant to s. 66(2)(b) cannot satisfy the mandatory obligations arising pursuant to s. 66(1)(a) in respect of an interest in s. 66(2)(a). Section 66(2) provides for (a) the giving of notice to the parties enumerated in subparas. (i) to (vi) and additionally (b) notification to the public.
It is not necessary therefore to consider the fourth issue raised for the applicants in view of the position reached; that is, whether the advertisements were defective.
Returning to the reasons of the respondent, it is apparent she relied upon the weighing of the considerations set out in para. 8.1 of the Procedures. However, examination of that paragraph shows that it purports to set out matters germane on the question of 'how to give notice of the application to all persons whose interests may be affected by a determination in relation to it (s. 66(1)(a))'. The paragraph is not addressing the question of to whom notice should be given, but only the manner of its giving. It is a Procedure applicable in relation to the manner of giving notice to those properly coming within s. 66(1)(a).
Because the applicants had interests falling within s. 66(2)(v) and were entitled to non-imputed notice, the respondent fell into error of law in deciding the applicants were not entitled to receive notice.
In her reasons the respondent concluded it would not be appropriate to provide for a further notification period in addition to that which expired on 18 December, 1995. It was not submitted that to allow for a further notification period, as a consequence of notification being given to the applicants, would be contrary to law.
For these reasons I consider the applicants are entitled to the order which they seek and to the substitution of a decision that the respondent give notice of the Claim to the applicants. No additional purpose would be served by the making of a declaration.
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/1998/22.html