Kanak, D.W.Y v National Native Title Tribunal

[1995] FCA 370

IN THE FEDERAL COURT OF AUSTRALIA                 ) 
  )  
NEW SOUTH WALES DISTRICT REGISTRY                )  NG 6003 of 1995
  )     
GENERAL DIVISION  )   

BETWEEN: DOMINIC (WY) KANAK

Applicant

AND:         NATIONAL NATIVE TITLE TRIBUNAL              

Respondent  

Coram:        Davies J
Date:          24 May 1995
Place:         Sydney

REASONS FOR JUDGMENT

It appears that the Commonwealth Pipeline Authority has lodged 17 non-claimant applications under the provisions of section 61 of the Native Title Act 1993 (Cth) ("the Act"). The effect of sections 70, 67(4) and 24 of the Act is that, if a non-claimant application is unopposed, then "any future act by any person in relation to the area that is done before the making of any approved determination of native title in relation to the area is valid."

The Commonwealth Pipeline Authority seeks to do an act in the area the subject of its application, namely, it wishes to construct a pipeline and it will do so under arrangements by which, on the construction of the pipeline, the ownership will pass to ICI Australia Operations Pty Limited and Gorodok Pty Limited. 

In answer to those applications, Mr Kanak lodged with the Registrar of the Native Title Tribunal, a claimant application. Mr Kanak's claim was taken to be an application with respect to the areas covered by the non-claimant applications lodged by the Commonwealth Pipeline Authority. The Registrar considered the application and, not being satisfied with it, referred it to the President who subsequently, on 23 March 1995, directed the Registrar not to accept the application. The President gave this direction under s.64(2)(c) of the Act.

Mr Kanak commenced these proceedings under s.169(2) of the Act by way of an appeal from the direction of the President. That subsection permits a person to appeal to the Court on a question of fact or law from a decision of a presidential member of the Native Title Tribunal not to accept his application.

The present motion is a motion by The Pipeline Authority, ICI Australia Operations Pty Ltd and Gorodok Pty Ltd to be joined as parties to the appeal on the basis that their interests are affected by the appeal. 

I have been asked by Miss Keys, counsel for Mr Kanak, not to order the joinder, as, so it was said, Mr Kanak's appeal should be dealt with as a separate matter.  Miss Keys submitted that the proceedings concerned Mr Kanak alone. 

The appeal, however, is not a matter which impacts only upon Mr Kanak.  It has wider consequences than that and it is an important principle of the law that all persons who have an interest in the subject matter of the issues that come before this Court should be joined, so as to allow them to put whatever case they wish to put.  It is an essential element of the law in this country that persons who have an interest in the decision have the right to be heard.  This was laid down by the High Court of Australia in Kioa v West (1985) 159 CLR 550.

In my opinion, the Commonwealth Pipeline Authority, ICI Australia Operations Pty Ltd and Gorodok Pty Limited have shown a sufficient interest for joinder in this appeal and I shall order that they be joined as respondents. 

The next matter to be dealt with is whether an order that was made by Moore J restricting the publication or communication of certain matters to any person not a party to the proceedings should be varied so as specifically to empower the legal representatives and officers of the Pipeline Authority, ICI Australia Operations Pty Ltd and Gorodok Pty Ltd to have access for the purposes of these proceedings to the applicant's affidavit affirmed 12 May 1995.  To avoid any uncertainty about the effect of his Honour's order, I shall so order.  Miss Keys submitted that to do so would be to vary an order which another judge had made, which I ought not to do.  Moore J's order was, however, an interlocutory order which may be varied from time to time as the circumstances change.

I shall make orders (1), (2), (3) and (4) as sought in the short minutes. 
         I shall also order that the respondents, The Pipeline Authority, ICI Australia Operations Pty Ltd and Gorodok Pty Ltd have the carriage of the preparation of the appeal book.  I direct that those parties approach Registry promptly for a date for settling the index.

I certify that this and the 3 preceding pages
are a true copy of the reasons for judgment herein
of the Honourable Justice Davies.

Associate:

Date:     24 May 1995

Counsel for the applicant:  J.A. Keys

Counsel for The Pipeline Authority,
ICI Australia Operations Pty Ltd &
Gorodok Pty Ltd:  A. Robertson

Solicitors for 
The Pipeline Authority:  Sly & Weigal

Solicitors for
ICI Australia Operations Pty Ltd &
Gorodok Pty Ltd:  Malleson Stephen Jacques

Date of hearing:  24 May 1995

Date of judgment:  24 May 1995