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Byron Environment Centre Inc v Arakwal People

Byron Environment Centre Inc v Arakwal People

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Case Copied 20 August 1997 79 min read

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FEDERAL COURT OF AUSTRALIA

NATIVE TITLE - appeal from decision of presidential member of the National Native Title Tribunal (”the Tribunal”) refusing a request by the Byron Environment Centre Incorporated (“the Centre”) under s 68(2) of the Native Title Act 1993 (“the Act”) to be a party in relation to an application for a determination of native title - nature and extent of the interest required to entitle a person to participate as a party in the negotiation of a claim to native title under the Act - whether the word “interests” in s 68(2)(a) of the Act has the same meaning as it does in s 253 so that the class of persons entitled to be a party under s 68(2)(a) is limited to persons who have an “interest” as defined in s 253 in relation to the land and waters the subject of the determination - relevance of the principles of decisions as to standing - whether the Centre has a sufficient interest to become a party to the proceedings before the Tribunal - whether the matter should be remitted to the Tribunal to determine the question of standing.

NATIVE TITLE - appeal from decision of presidential member of Tribunal refusing a request by the Centre under s 68(2) of the Act to be a party in relation to an application for a determination of native title - whether it is a condition precedent to the exercise by the Tribunal of its power under s 69 to decide whether a person has interests which may be affected by a determination that a party raises the point.

WORD AND PHRASES - “the person’s interests may be affected”.

Native Title Act 1993 ss 66, 68, 69(1), 84(2), 167(4), 168(2)(c), 169(3), 253

Alphapharm Pty Ltd v SmithKline v Beecham (Australia) Pty Ltd (1994) 49 FCR 250, applied
Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50, considered
Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493, applied
Onus v Alcoa of Australia Ltd (1981) 149 CLR 27, applied
Members of the Yorta Yorta Aboriginal Community v State of Victoria (1996) 1 AILR 402, applied
Re an application for a native title determination by Gunai People (French J, 17 January 1997, unreported), applied
United States Tobacco Company v Minister for Consumer Affairs (1988) 20 FCR 520, considered
Members of the Yorta Yorta Aboriginal Community v State of Victoria (Olney J, 7 June 1996, unreported), considered
Re McHatten and Collector of Customs (1977) 18 ALR 154, considered

BYRON ENVIRONMENT CENTRE INCORPORATED v THE ARAKWAL PEOPLE & ORS
NG 6000 of 1996

BLACK CJ, LOCKHART and MERKEL JJ.
SYDNEY
20 AUGUST 1997

GENERAL DISTRIBUTION
IN THE FEDERAL COURT OF AUSTRALIA          )
  )
NEW SOUTH WALES DISTRICT REGISTRY        )          No. NG 6000 of 1996
  )
GENERAL DIVISION  )

BETWEEN:BYRON ENVIRONMENT CENTRE
INCORPORATED
Applicant

AND:THE ARAKWAL PEOPLE
First Respondent

BYRON SHIRE COUNCIL
Second Respondent

CAPE BYRON HEADLAND RESERVE…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1997] FCA 797
Decision Date: 20 AUGUST 1997

CaseChat Overview and Summary

The case of Byron Environment Centre Incorporated v Arakwal People & Ors, decided by the Federal Court of Australia, concerns an appeal by the Byron Environment Centre Incorporated (the Centre) against the decision of the National Native Title Tribunal (the Tribunal) to deny its application to be a party in relation to a native title claim made by the Arakwal People. The Centre sought to be a party in order to protect its environmental interests in the Byron Bay area. The Federal Court, comprising Black CJ, Lockhart and Merkel JJ, allowed the appeal and set aside the Tribunal's decision. The Court held that the Tribunal had erred in law by applying the definition of "interest" from section 253 of the Native Title Act 1993 (the Act) to the expression "the person’s interests may be affected by a determination" in section 68(2)(a) of the Act. The Court held that the term "interests" in section 68(2)(a) is not limited to the definition of "interest" in section 253, and that the interests required to entitle a person to be a party under section 68(2)(a) must be genuine, demonstrable, not indirect, and not remote or so insubstantial that it will be mere speculation as to whether and, if so, how they may be actually affected by the determination. The Court held that the Centre had not demonstrated that its interests would be affected by the determination, but it was fair to give the Centre the opportunity to adduce further evidence before the Tribunal. The Court also held that the Tribunal's power to decide whether a person's interests may be affected by a determination is not contingent on a party to the proceeding objecting to the person's application to be a party. The Court remitted the matter to the Tribunal to determine the question of the Centre's standing pursuant to sections 68 and 69 of the Act.

Orders