Application for the Determination of Native Title Made by Metropolitan Local Aboriginal Land Council

[1998] FCA 401

FEDERAL COURT OF AUSTRALIA

Native Title - proceedings for determination that no native title exists in respect of certain lands - application for joinder - meaning of “interests” under ss 68(2)(a) and 84(2) of the Native Title Act 1993 - whether an opportunity to participate in an employment opportunity in an entirely personal capacity constitutes an interest that may be affected by a determination - whether party seeking joinder was a “representative” of the traditional owners of these lands.

Native Title Act 1993 - ss 68 and 84

Byron Environment Centre Inc v Arakwal People (1997) 148 ALR 46 - appl.

APPLICATION FOR THE DETERMINATION OF NATIVE TITLE MADE BY METROPOLITAN LOCAL ABORIGINAL LAND COUNCIL

NG 6001  of   1998

JUDGE:         BEAUMONT J.
PLACE:         SYDNEY
DATE:           31 MARCH 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 6001  of   1998

APPLICATION FOR THE DETERMINATION OF NATIVE TITLE MADE BY METROPOLITAN LOCAL ABORIGINAL LAND COUNCIL
JUDGE:		BEAUMONT J.
DATE OF ORDER:		31 MARCH 1998
WHERE MADE:		SYDNEY

ORDERS:

1. That the notice of motion be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 6001 of 1998

APPLICATION FOR THE DETERMINATION OF NATIVE TITLE MADE BY THE METROPOLITAN LOCAL ABORIGINAL LAND COUNCIL
JUDGE:	BEAUMONT J.
DATE:	31 MARCH 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J:

This is an application brought by notice of motion by Mr Dominic Kanak seeking to be joined as a party to proceedings for a determination that native title does not exist in respect of certain lands situated at Duffy's Forest near Sydney.  The application for joinder is brought pursuant to O 78 r 5 of the Federal Court Rules. 

The persons who are parties to the present proceedings are defined by s 84(1) of the Native Title Act 1993 (“the Act”). It is there provided that the persons who were parties under s 68 in relation to the principal application are parties. Mr Kanak did not qualify under this provision.

However, by s 84(2) it is provided that 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.”

By his notice of motion, Mr Kanak seeks to advance a number of matters in support of his application for joinder.  As I read the document, the main ground advanced is as stated in para 8C2 as follows:

“8C2.  That the determination that ‘...there are no native title rights and interests existing in relation to Lot 375 DP752017...’ negates an employment opportunity for the representative applicant personally as a native title consultant whose role is to mediate/negotiate the application of native title rights and interests in situations similar to the circumstances that have arisen in the history of this proceeding.”

The test for qualification for joinder in the present context has been considered in a number of cases, but for present purposes it will suffice to refer to the decision of the Full Federal Court in Byron Environment Centre Inc v Arakwal People (1997) 148 ALR 46.

There, Black CJ noted (at 50) that it was intended that an interest sufficient to give the person a right to become a party to an application “should be greater than that of a member of the general public”.

The Chief Justice went on to say that the interests with which s 68(2)(a), and the related sections dealing with parties (specifically s 84(2)), are concerned “are interests that are not indirect, remote or lacking in substance”. His Honour further said (at 51) that 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". Black CJ did, however (at 51), note that there was no reason to conclude from the subject matter, scope and purpose of the Act that the interest "need be proprietary or even legal or equitable in nature".

Lockhart J noted (at 62) that the person's interests "must not be remote, indirect or fanciful".  The interest must be "above that of an ordinary member of the public, and must not be that of a mere intermeddler or busybody". 

Applying those principles to the present case, it seems to me that Mr Kanak's claim for joinder has no substantial basis. At its highest, it is a claim to participate in an employment opportunity in an entirely personal capacity. I accept, of course, that such an opportunity is important for Mr Kanak in terms of his personal position, and it could well have material significance for him. But it has nothing to do with the kinds of interests contemplated by s 84(2).

In his oral submissions, Mr Kanak went on to advance an alternative ground for joinder, namely, that he was acting as "representative" for another person who, Mr Kanak contended, was a traditional owner of the subject land.  In my opinion, these matters do not justify the joinder of Mr Kanak.  If indeed another person claimed to be a traditional owner of these lands, that person could, without question, come forward and seek to be joined as a party as having a direct interest in the proceedings.  There is no such application before me. 

Moreover, I do not accept that Mr Kanak is a "representative" of any of the traditional owners or persons claiming to be the traditional owners of these lands.  There is no evidence to support that proposition.  In any event, there is no foundation for the suggestion that Mr Kanak has any representative capacity, role or function so far as concerns any person claiming to be the traditional owner of these lands. 

I therefore order that the notice of motion be dismissed.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont

Associate:

Dated:             31 March 1998

Applicant:	Dominic Wy Kanak appeared in person
Counsel for the First Respondent:	T Robertson
Solicitor for the First Respondent:	Woolf Associates
Counsel for the Second Respondent:	R Beech-Jones
Solicitor for the Second Respondent:	A Chalk & Associates
Date of Hearing:	31 March 1998
Date of Judgment:	31 March 1998