Atkinson on behalf of the Gunai/Kurnai People v State of Victoria

[2010] FCA 904

FEDERAL COURT OF AUSTRALIA

Atkinson on behalf of the Gunai/Kurnai People v State of Victoria [2010] FCA 904

Citation:		Atkinson on behalf of the Gunai/Kurnai People v State of Victoria [2010] FCA 904
Parties:		ATKINSON ON BEHALF OF THE GUNAI/KURNAI PEOPLE v STATE OF VICTORIA and ORS
File number(s):		VID 482 of 2009
Judge:		NORTH J
Date of judgment:		16 August 2010
Legislation:		Native Title Act 1993 (Cth)
Date of hearing:	16 August 2010
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	10
Applicant for Joinder:	No Appearance
Counsel for the Applicant:	Mr T. Keely
Solicitor for the Applicant:	Native Title Services Victoria
Counsel for the First Respondent:	Mr A.C. Neal SC
Solicitor for the First Respondent:	Victorian Government Solicitor’s Office

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 482 of 2009

BETWEEN:	ATKINSON ON BEHALF OF THE GUNAI/KURNAI PEOPLE Applicant
AND:	STATE OF VICTORIA and ORS Respondents

JUDGE:	NORTH J
DATE OF ORDER:	16 AUGUST 2010
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application by the Australian Deer Association to be made a respondent to this proceeding pursuant to s 84 of the Native Title Act 1993 (Cth) is dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 482 of 2009

BETWEEN:	ATKINSON ON BEHALF OF THE GUNAI/KURNAI PEOPLE Applicant
AND:	STATE OF VICTORIA and ORS Respondents

JUDGE:	NORTH J
DATE:	16 AUGUST 2010
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. Before the Court is an application under s 84(5) of the Native Title Act1993 (Cth) by the Australian Deer Association (ADA) to be joined as a respondent to this application for a determination of native title.

2. Section 84(5) provides that:

   (5)  The Federal Court may at any time join any person as a party to the proceedings, if the Court is satisfied that the person's interests may be affected by a determination in the proceedings and it is in the interests of justice to do so.

3. The details of the applicant’s interest are stated in a letter dated 23 June 2010 addressed to the District Registrar of the Court as follows:

   The basis upon which we want to become a party is the claim area constitutes much of the public land available and used by our members and the wider community for recreation (hunting, fishing, camping, four wheel driving, naturalism etc). ADA has several serious concerns about the rights and interest of the claim that it regards as racist and divisive to the wider Victorian community.

   Listed below are ADA’s concerns against the rights and interests of the claim;

   ·     ADA rejects the notion that one section of the community should have exclusive possession and use of public land especially when the granting of the exclusive use would be in the hands of those benefiting from it.

   ·     ADA rejects the notion that ownership of what is public land for all Victorian’s (including aboriginals) be wholly transferred to Aboriginal Traditional Owner Groups.

   ·     ADA rejects the notion that one section of the community is allowed exclusive rights to natural resources.

   ·     ADA rejects the notion that natural resources can be owned by one section of the community and traded (exchanged, bartered or sold) to the rest of the community for profit and benefit of one single group.

   ·     ADA rejects the notion that one group should have sole right to make decisions over the use of public land other than organisations that come under control of the Parliament of Victoria.

   ·     ADA rejects the notion that permission for access of public land be vested with a single entity other than organisations which come under the control of the Parliament of Victoria. Access to public land should be the same for all Victorians.

   ADA has no issues with Aboriginal peoples having their heritage protected or the right to own and protect their intellectual property as long as there is no loss of public amenity for the wider community.

   Non-indigenous Australians feel awkward about adverse actions by early European settlers and consequently there is generosity of spirit towards indigenous Australians. However, this generosity does not extend beyond the point where non-indigenous Australians feel they would be actively discriminated against.

   Victorians generally support increased involvement of Aboriginal Traditional Owner Groups in the management of public lands and acknowledge their desire to utilise these lands in a manner which celebrates their culture. However, there is a strong desire amongst non-indigenous Australians to all be treated equally and to have equal involvement in management and access to public lands.

   ADA’s objectives are to ensure that public land remains owned by all Victorians and do not object to sharing public land with any group or user as long as public land is used in accordance with best management and use principles.

4. The applicant for the joinder was given notice of the hearing today and advised that if it wished to advance its case it should appear and address argument to the Court. It has not appeared. Order 35A Rule 2(f) of the Federal Court Rules provides that:

   (1)       For this Order, an applicant is in default if the applicant:
             (f)       fails to prosecute the proceeding with due diligence.

5. In the circumstances, the failure to appear amounts to a default within the meaning of this rule. Order 35A Rule 3 of the Federal Court Rules then provides that:

   (1)      If an applicant is in default, the Court may order that:

   (a)       the proceeding be stayed or dismissed as to the whole or any part of       the relief claimed by the applicant;

6. By reason of the non-appearance, the application for joinder is dismissed.

7. A further basis for such an order is that the application does not satisfy the requirements of s 84(5). In Byron Environmental Centre Incorporated v Arakwal People and Ors (1997) 78 FCR 1 (Byron), Black CJ outlined the types of interests which give rise to a right to be joined as a party to a native title application. He said (at 7):

   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 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.

8. The present application does not meet these requirements.  There is no indication in the application of the extent of the use by members of the ADA of the area in question, either by reference to the area of use, or the frequency of use.  The application area in Gunai/Kurnai # 2 is limited, as it was filed in order to make application to some areas overlooked in bringing the original application (VID 6007 of 1998) which covers a much larger area.  It would be surprising if the ADA had an interest in the area covered by this application. In the absence of further particularisation, it is not possible to determine what, if any, interest the ADA might have in the application area.

9. Further, in Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 at 530 the Court stated that:

   An interest, for present purposes, does not mean a mere intellectual or emotional concern…[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. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it.

   See also Merkel J in Byron at 33.

10. The concerns raised by the ADA in its letter of 23 June 2010 reflect an emotional or philosophical interest. General concerns about the native title system or philosophical objections to native title rights and interests which might be afforded to native title applicants to the exclusion of the general public do not amount to interests which ground an application to become a party to a native title application.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:
Dated:        16 August 2010