Ward v State of Western Australia

[2005] FCA 523

FEDERAL COURT OF AUSTRALIA

Ward v State of Western Australia [2005] FCA 523

NATIVE TITLE – joinder –  notice of intention of  incorporated Aboriginal Council to become party to native title determination application – unspecified rights and interests under Land Administration Act 1997 (WA) and Aboriginal Heritage Act 1972 (WA) – no interest disclosed sufficient to support party standing – reference in notice to issue of proper authorisation of native title determination application - inadequate basis for joinder – application for joinder refused.

Native Title Act 1993 (Cth)

BEN WARD AND OTHERS v STATE OF WESTERN AUSTRALIA AND OTHERS
WAD 124 OF 2004

FRENCH J
15 MARCH 2005
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD124  OF 2004

BETWEEN:	BEN WARD AND OTHERS APPLICANT
AND:	STATE OF WESTERN AUSTRALIA AND OTHERS RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	15 MARCH 2005
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The Miriuwung Gajerrong Families Heritage Land Council Aboriginal Corporation should not be joined as a party to the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD124  OF 2004

BETWEEN:	BEN WARD AND OTHERS APPLICANT
AND:	STATE OF WESTERN AUSTRALIA AND OTHERS RESPONDENT

JUDGE:	FRENCH J
DATE:	15 MARCH 2005
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The Miriuwung Gajerrong (Number 4) application, WAD 124/04, was filed on 9 June 2004.  It was notified by the National Native Title Tribunal (the NNTT) pursuant to the provisions of the Native Title Act 1993 (Cth) on 22 September 2004. On 14 October 2004 during the three-month period during which parties or persons could indicate their wish to be joined as parties, a Notice of Intention to become a party to the application was lodged by the Miriuwung Gajerrong Families Heritage Land Council Aboriginal Corporation (the Corporation). The Form 5, which was lodged by the Corporation, under the heading ‘Details of interest claimed’ set out the following:

   ‘(1) Rights & interests as pursuant to s 106(2) WA Land Act 1933

   (2)Rights & interests pursuant to ss 5,6,WA Aboriginal Heritage Act  1972 – 80

   (3)Improper authorisation under s 251B Native Title Act.’

2. The address for service of the body was given as Mr Paul Kennard, a solicitor in Hillarys.  The names of persons describing themselves as directors of the governing committee, Ronnie Carlton, John Toby, Dodger Carlton and Ronnie Yundun, all appeared as signatories on the Notice of Intention.

3. The District Registrar wrote to the Corporation on 18 October 2004 indicating that the form lodged did not contain sufficient details of any interests held by the Corporation that might be affected by the termination of native title.  The Corporation was asked to provide evidence of any current interests held such as a vesting order, lease or licence.  A letter was sent by fax on 15 December 2004 to the District Registrar in which Mr Hannan, the Executive Coordinator for the governing committee, said that the Corporation wished to proceed with its notice on the basis of the material filed to that point in relation to that notice.

4. In the event, a further statutory declaration made by Mr Hannan was filed in support of the notice in which it was said that the Form 5 as completed by the applicants ‘...clearly sets out the material interests at law held by the above Aboriginal Corporation at Ques 5 of the form.’  That was a reference to the three matters to which I have already referred.  The statutory declaration went on to say:

   ‘In its capacity of representing land and cultural interests of the traditional owners of the Miriuwung and Gajerrong members and the original author of MG1 Application for the Determination of Native Title heard before Justice Lee  in the Federal Court the Council simply relies on the merits of those grounds detailed at Ques 5 in Form 5 to proceed with the application.’

   ‘MG1’ refers to the Miriuwung Gajerrong Number 1 native title determination application.

5. There was a second statutory declaration attached which referred to the admission of other bodies accepted as parties in the Miriuwung Gajerrong Number 1 application.  It went on to say that the offices of the current applicant for party status were also situated on Aboriginal reserve land on the same basis as those associations. 

6. I invited Mr Hannan to indicate further the basis upon which the interests claimed were asserted.  It appears that the reference to s 106 of the Land Act 1933 (Cth) should be taken now as a reference to s 104 of the Land Administration Act 1997 which has replaced it. That provision creates a reservation in favour of Aboriginal persons in the following terms:

   ‘Aboriginal persons may at all times enter upon any unenclosed and unimproved parts of the land under a pastoral lease to seek their sustenance in their accustomed manner.’

   I note that the application in question covers three pastoral leases whose leaseholders are represented today by Mr McKenna. This no doubt has some bearing upon the reliance placed by Mr Hannan upon s 104 of the Land Administration Act. 

7. The references to ss 5 and 6 of the Aboriginal Heritage Act 1972 (WA) dealt with its application to places of significance to persons of Aboriginal descent and to objects of significance. Mr Hannan also made mention of the appointment of honorary wardens under s 50 of the Aboriginal Heritage Act. 

8. Despite the statutory provisions cited, nothing that has been said in the papers or orally by Mr Hannan provides any support for the proposition that the Corporation has any relevant interest which would warrant its joinder as a party. The reservation under s 104 of the Land Administration Act confers a general right upon Aboriginal persons which would be unaffected by any native title determination. The appointment of honorary wardens under the Aboriginal Heritage Act is a matter in the discretion of the Minister. It has no logical connection with any interests of the Corporation.  So far as the question of authorisation is concerned, that is not a matter which goes to the standing of this Corporation to become a party.  Challenges to authorisation are matters which can be raised in other ways, but certainly not by the process of joinder.  In my opinion the Corporation should not be joined as a party to this application.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:

Dated:             15 March 2005

Counsel for the Joinder Applicant:

Mr R Hannan (by telephone)

Solicitor for the Applicant:

Miriuwung Gajerrong Families Heritage Land Council Aboriginal Corporation

Counsel for the Applicant in the Main Proceeding:

Solicitor for the Applicant in the Main Proceeding:

Ms J Twomey

Kimberley Land Council

Solicitor for the First Respondent:

Counsel for the First  Respondent:

Mr S Wright

State Solicitors Office

Solicitor for the  Second Respondents:

Counsel for the Second Respondents:

Mr M McKenna

Hunt and Humphry

Date of Hearing:

15 March 2005

Date of Judgment:

15 March 2005