WMC Resources Ltd & Central Norseman Gold Corporation Ltd v Lane, Patricia (In her Capacity as Native Title Registrar)
[1997] FCA 173
•19 MARCH 1997
CATCHWORDS
NATIVE TITLE - action to be taken in relation to accepted applications - action by Registrar whether s66(1) imposes mandatory duty - whether mandatory for Registrar to give notice pursuant to s66(2) to holders of mining lease and other tenements in register - whether Registrar erred in law in failing to give notice of application to holders
Administrative Decisions (Judicial Review) Act 1977, s13
Fisheries Act 1968 (Vic)
Interpretation Act 1984 (Cth), s28A
Mining Act 1978 (WA)
Native Title Act 1993 (Cth), s6, s13, s61, s62, s63, s66, s67, s68, s69, s70, s71, s72, s73, s84, s123, s124, s165, s166, s167, s168, s169, s170, s252, s253
Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245
Clayton v Heffron (1960) 105 CLR 214
John Cook & Co v Commonwealth (1922) 31 CLR 394
Hilaire v Harvie (1950) 68 WN (NSW) 61
Kanak v National Native Title Tribunal (1995) 132 ALR 329
McGovern v Victoria [1984] VR 570
Members of the Yorta Aboriginal Community and Ors v The State of Victoria (Olney J, 13 October 1995, unreported)
Secretary, Department of Social Security v Garratt (1992) 109 ALR 149
Tasker v Fullwood [1978] 1 NSWLR 20
Victoria v Commonwealth (1975) 135 CLR 81
The Wik Peoples v The State of Queensland (1994) 49 FCR 1
WMC RESOURCES LTD AND CENTRAL NORSEMAN GOLD CORPORATION LTD v PATRICIA LANE (IN HER CAPACITY AS NATIVE TITLE REGISTRAR)
NO WAG 86 OF 1996
R D NICHOLSON J
PERTH
19 MARCH 1997
IN THE FEDERAL COURT OF AUSTRALIA )
WESTERN AUSTRALIA DISTRICT REGISTRY )
GENERAL DIVISION ) NO WAG 86 OF 1996
B E T W E E N: WMC RESOURCES LTD AND CENTRAL NORSEMAN GOLD CORPORATION LTD
Applicants
and
PATRICIA LANE (IN HER CAPACITY AS NATIVE TITLE REGISTRAR)
Respondent
MINUTE OF ORDER
JUDGE MAKING ORDER: R D NICHOLSON J
DATE OF ORDER: 19 MARCH 1997
WHERE MADE: PERTH
THE COURT ORDERS THAT:
The decision of the respondent given on 21 June 1996 refusing to give the applicants notice of Native Title determination application WC 95-17 be set aside.
There be substituted for that decision a decision that the respondent give notice of Native Title determination application WC 95-17 to the applicants.
Costs reserved for written submission to be filed and served on behalf of the applicants by 5.00 pm Monday 24 March 1997 with responding submissions for respondent by Wednesday 26 March 1997 at 5.00 pm.
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 )
GENERAL DIVISION ) NO WAG 86 OF 1996
B E T W E E N: WMC RESOURCES LTD AND CENTRAL NORSEMAN GOLD CORPORATION LTD
Applicants
and
PATRICIA LANE (IN HER CAPACITY AS NATIVE TITLE REGISTRAR)
Respondent
CORAM:R D NICHOLSON J
DATE:19 MARCH 1997
PLACE:PERTH
REASONS FOR JUDGMENT
This is an application brought pursuant to the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act"), seeking to review the respondent's ("the Registrar") decision on 21 June 1996 refusing to give the applicants notice of Native Title Determination Application WC 95/17 ("the Claim").
The applicants claim to be aggrieved by the decision because they hold interests which may be affected by a determination of the Claim. The consequences of the respondent's decision are that they are not, and are unable to become, parties in relation to the Claim under s68(2) of the Native Title Act 1993 (Cth) ("the Act"). Furthermore they will not be parties in relation to the Claim under s84(1) of the Act if the Claim is referred to the Federal Court for determination. In addition they would not be entitled to participate in mediation and other proceedings under the Act in relation to the Claim and say that thereby they would be denied natural justice in relation to the determination of the Claim. The applicants seek a declaration that the decision was contrary to law, an order that it be
set aside and there be substituted a decision that the respondent give notice of the Claim to the applicants.
Each of the applicants holds mining leases and other mining tenements under the Mining Act 1978 (WA), some or all of which fall wholly or partly within the area covered by the Claim. In the case of the first applicant some of the tenements fall within that area and all are registered in the register of mining tenements maintained at the Department of Minerals and Energy under the Mining Act 1978 (WA). Those tenements were so registered at the time the Claim was accepted on 25 September 1995 and have been continuously registered since that time.
In the case of the second applicant all the tenements fall wholly within the area covered by the Claim and were granted before 25 September 1995 and are still in force. They have similarly been registered in the register of mining tenements and have been continuously so registered.
No counsel or other representative appeared for the respondent at the hearing. In view of the apparent significance to the work of the respondent of the submissions made for the applicants, the transcript of submissions for the applicants was provided to the respondent. The respondent then arranged for written submissions in reply and on additional issues arising subsequently.
Relevant statutory provisions
Section 66 provides as follows:
"66(1) If an application is accepted under s63, the registrar must:
(a)give notice of the application to all persons whose interests may be affected by a determination in relation to the application; and
(b)if the application is a native title determination application by a person or persons claiming to hold the native title - record details of the application in the register of Native Title Claims.
(2)The registrar is taken to have given notice to all persons whose interests may be affected by a determination in relation to an application if the registrar:
(a)gives notice containing details of the application to:
(i)the registered native title claimant (if any) in relation to the area covered by the application; and
(ii)the Commonwealth Minister; and
(iii)if any of the area covered by the application is within the jurisdictional limits of a State or Territory; and
(iv)any registered native title body corporate in relation to any of the area covered by the application; and
(v)any person who holds a proprietary interest in any of the area covered by the application, being an interest that is registered in the register of interests in relation to land or waters maintained by the Commonwealth, a State or a Territory; and
(vi)any representative Aboriginal/Torres Strait Islander body for any of the area covered by the application; and
(b)notifies the public in the determined way of the application.
(3)A notice under subs(2) must also state that:
(a)if the application is a non-claimant application - the application will be taken to be unopposed unless the condition in subs(4) is satisfied within the period of two months starting on the day the notice is given; or
(b)in any other case - a person who wants to be a party in relation to the application must notify the registrar, in writing, within the period of two months starting on the day the notice is given.
(4)The condition mentioned in par(3)(a) is that a person or persons who claim to hold native title give a native title determination application, that covers any part of the area covered by the non-claimant application, to the registrar or to a recognised State/Territory body entitled to receive it."
The terms of s66(2) were referred to by the Full Court in Kanak v National Native Title Tribunal (1995) 132 ALR 329 at 335.
Section 66 is to be understood in the context of the Act as a whole. The purpose of the Act is described as follows:
"3 The main objects of this Act are:
(a)to provide for the recognition and protection of native title; and
(b)to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings; and
(c)to establish a mechanism for determining claims to native title; and
(d)to provide for, or permit, the validation of past acts invalidated because of the existence of native title."
Section 13(1)(a) of the Act provides that an application may be made to the Registrar under Pt3 for a determination of native title in relation to an area where no such approved determination is extant. Section 63 falls within Pt3. Sections 61 and 62 prescribe the manner in which applications are to be made and s63 provides for acceptance.
Section 66 is in immediate juxta‑position to s67 which relevantly provides:
"67(2) If:
(a)within the period specified in the notice under s66, a person or persons claiming to hold native title give a native title determination application (the "claimant application") that covers any part of the area covered by the non-claimant application to the registrar or to a recognised State/Territory body entitled to receive it; and
(b)the claimant application is accepted (whether initially or on appeal and whether or not within the specified period);
then:
(c)if the non-claimant application is by or on behalf of a Minister, the Crown in any capacity or a statutory authority - the non‑claimant application is taken to be dismissed; or
(d)in any other case - the non-claimant application is taken, for all purposes after the claimant application is given to the registrar, not to relate to the area covered by the claimant application."
That is followed by s68 which provides:
"68(1) The applicant is a party in relation to the application.
(2)Another person is a party in relation to the application if:
(a)the person is covered by any of subpars66(2)(a)(i) to (vi) or the person's interests may be affected by a determination in relation to the application; and
(b)the person notifies the registrar, in writing, within the period specified in the notice under s66, that the person wants to be a party in relation to the application."
Provision is made in s69 for a tribunal to decide whether the interests of a person may be affected by a determination. There is provision in ss70 and 71 for the Tribunal to determine unopposed or agreed applications. If an accepted application is not so dealt with, s72 requires the President to direct the holding of a conference "of the parties or their representatives" to help in resolving the matter.
Without traversing all the provisions of the Act in detail, it is sufficient to say that broadly the scheme of the Act is that if no agreement is reached in relation to the application, it goes to the Federal Court for determination. Section 84 of the Act provides:
"84(1) The persons who were parties under s68 in relation to the application are parties.
(2)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."
Section 123(1)(e) of the Act provides that, subject to ss69 and 124, the President may give directions as to "the procedure of the Tribunal generally". Section 69 and 124 have no relevant qualifying effects in the present instance. Procedures came into force by the Native Title (Notices) Determination No.1 of 1993 ("the Procedures"). Paragraphs 8.1 and 8.3 of the Procedures read:
"8.Notification
8.1.1Upon acceptance of an application the Registrar is to consider and determine how to give notice of the application to all persons whose interests may be affected by a determination in relation to it (s66(1)(a)). In making such a decision the Registrar must have regard to:
(a)the nature of the application;
(b)the likely number of persons whose interests may be affected by a determination;
(c)the nature and range of interests affected;
(d)the time and expense involved in searching records of proprietary interests;
(e)the time and expense involved in various means of notification;
(f)the means available for bringing the application to the notice of persons who may be affected by a determination including print and media advertising, Aboriginal and Torres Strait Islander representative bodies and other Aboriginal community groups, industry associations, Commonwealth, State and Territory Governments and Local Authorities.
...
8.3Copies of maps lodged with the application will be made available to the relevant local authorities, within the area affected by the claim for the purposes of public inspection."
In my opinion the Procedures made pursuant to s123(1)(e) do not govern or inhibit the interpretation of the Act including either ss66(1) or (2) in their terms. The Procedures are subsidiary provisions which are to be understood as such. For the respondent it is accepted that directions pursuant to s123 are not capable of overriding the requirements of s66, if the construction of that section for which the applicants contend is upheld.
Respondents decision
On 21 June 1996 the applicants by a letter from their solicitors to the respondent required the respondent either to confirm the applicants were parties to the Claim or to give notice of the Claim to the applicants or to provide a statement of reasons for refusing to give notice of the Claim to the applicants. On that date the respondent decided the applicants were not parties in relation to the Claim (a decision which the applicants do not challenge so far as it relates to a party within s68(1) of the Act). The respondent further decided not to give notice of the Claim to the applicants ("the decision"). Those decisions were communicated to the applicants by the respondent in a telephone conversation on 21 June 1996 between the respondent and the solicitors for the applicants.
Following advice of the decision, a written statement of reasons for it was obtained from the respondent pursuant to s13 of the ADJR Act on 5 July 1996. In that statement the respondent stated the reasons for her decision were:
"· the decision not to notify mining tenement holders individually has already been made, namely at the time of acceptance of the application;
·the notification period pursuant to s66 of the Native Title Act, as set out in each of the notices described below, expired on 18 December 1995 and it would not be appropriate to provide for a further notification period at this stage of the application process; and
·the decision affects each of approximately 1600 mining tenement holders equally, and it would not be appropriate to notify WMC Resources Ltd and Central Norseman Gold Ltd in isolation."
The statement further developed the reasons in relation to the decision not to notify tenement holders individually. The respondent stated that after acceptance by the Tribunal of the Claim on 25 September 1995, notice of the acceptance was given on 5 October 1995. It was said such notice was in accordance with s66 of the Act and pars8.1 and 8.3 of the Procedures.
The respondent then set out extracts from the Procedures and quoted s66(2) of the Act. In relation to that provision she then stated:
"The terms of this subsection, particularly the phrase "The Registrar is taken to have given notice to all persons whose interests may be affected by a determination in relation to the application..." provide a mechanism for satisfying the requirements of s66(1) which is not exhaustive, having regard to the deeming language of s66(2).
The Tribunal procedures recognise that the provisions of s66(2) are directory, and that the Registrar may adopt such measures as are reasonably calculated to bring the application to the attention of persons whose interests may be affected."
The statement of reasons continued by providing that the public was notified of the acceptance of the application by notice published in certain newspapers from and including 5 October 1995. She advised that broadcasting services had also been notified and each of the bodies and individuals listed at par7.1 of the Procedures were similarly
notified. In addition, on that date the lessees of each of eighteen pastoral leases included in the Claim area were notified.
Returning to the question of the notification of mining interests, the respondent stated quotations had been obtained for provision of full current and historical mining tenure information. In the event she decided to accept a quotation of $3,210 for the provision of mapping and current tenure information and mapping information concerning historical pastoral interests. As a consequence the maps provided to her indicated the existence of mining tenements but did not provide details of the holders of those tenements.
The statement continued:
"Consequently, although I was aware of the existence of approximately 1600 mining tenements in the application area, as identified only by tenement number in the application, I did not have prompt or economical access to information sufficient to give notice to the holders of these tenements. Accordingly, I did not notify each of the tenement holders individually and did not notify WMC Resources Ltd and Central Norseman Gold Corporation Ltd of the acceptance of the application. The factors which I took into account in reaching this decision were each of the considerations set out at par8.1 of the Procedures and in particular:
·the time and expense involved in obtaining and searching the records of tenement holders (as evidenced by the quotations outlined above); and
·the time and expense involved in Tribunal staff notifying each of the tenement holders individually."
Grounds of review
Essentially the grounds of review maintain the respondent misconstrued the content of the duty imposed on her by s66 of the Act. It is said therefore she was in error of law, acted without authorisation by the enactment and improperly exercised the power pursuant to that section.
The grounds are crystallised around principal propositions advanced for the applicants, namely:
Section 66(1)(a) of the Act imposes a mandatory duty to give notice to all persons "whose interests may be affected" by a determination with the consequence that failure to so act vitiates any subsequent steps.
Section 66(2) of the Act imposes a mandatory duty on the respondent and so required her to give notice pursuant to s66(2)(v) to the applicants as persons holding "a proprietary interest" in the form of the mining tenements (or some of them) in the area subject to the Claim.
If the first proposition is upheld and the second rejected, then nevertheless the notice under s66(1)(a) required the respondent to give notice to the applicants.
In the alternative, if it is said the advertisements to the public constitute notice to the applicants, those advertisements in this case were defective.
Is section 66(1)(a) mandatory?
I accept the submission for the respondent the question is not whether s66(1)(a) is mandatory or directory in its terms. Rather the relevant question is whether the legislature in enacting s66 intended that failure to comply with the requirements of it would invalidate further proceedings. The specific intention being sought in these proceedings is the effect upon the validity of subsequent proceedings having regard to the nature of the precondition in s66(1), its place in the legislative scheme of the Act and the extent of the failure (if any) to observe it in this particular case: see Tasker v Fullwood [1978] 1 NSWLR 20 and Victoria v The Commonwealth (1975) 134 CLR 81 at 161‑2 and 179. At the latter reference Stephen J said:
"Where... a stipulation may be seen to be of importance in attaining the general object of the statute its total non‑observance cannot be sought to be excused, and its intended effect circumvented, by the adoption of a directory construction. A directory construction may none the less be given to such a stipulation if it is of a kind capable of degrees of non‑compliance and if some degree of non‑compliance can be seen as not necessarily prejudicing the substantial carrying into effect of the general object. If in such a case a directory construction be adopted, the extent of non‑compliance in the particular case must then be examined to determine whether what has in fact occurred nevertheless gives effect to the general object of the statute."
The distinction between mandatory and directory enactments is that described in Clayton v Heffron (1960) 105 CLR 214 at 247 cited in Victoria v The Commonwealth at 162, namely:
"Lawyers speak of statutory provisions as imperative when any want of strict compliance with them means that the resulting act, be it a statute, a contract or what you will, is null and void. They speak of them as directory when they mean that although they are legal requirements which it is unlawful to disregard, yet failure to fulfil them does not mean that the resulting act is wholly ineffective, is null and void."
There are a number of considerations which the case for the respondent contends support a directory construction of s66(1)(a). The first is that where rights are affected it is not a universal rule that proceedings will be void if notice is not given. Under rules of court applicable in most jurisdictions non‑joinder of parties is not fatal to an action and the court may proceed to deal with the matter in controversy so far as the rights and interests of parties actually before it are concerned: see John Cook & Co v Commonwealth (1922) 31 CLR 394 at 410‑1. In The Wik Peoples v The State of Queensland (1994) 49 FCR 1 at 6, Drummond J at first instance said:
"If a decision affecting property is given in a statutory context that affords opportunity to persons interested in the state of affairs that will be created by the decision to participate in the determination, that will be an indication that the public element which must exist before a decision will operate in rem in fact exists. But that is not, I think, essential before a judgment can operate in rem."
He considered that so far as the Federal Court was concerned the Act operates to give effect in rem only to a decision of the Court made in proceedings commenced by application to the Registrar of the Tribunal under s13(1) and then transferred to the Court under s74 of the Act. He considered that McGovern v Victoria [1984] VR 570 was inconsistent with the notion that a judgment affecting a thing can only operate in rem if it is given in circumstances in which all persons interested in the thing have had an opportunity to participate in the decision. In McGovern at 576 it was stated "... a judicial decision which creates title to or affects property in a thing in possession is a decision that determines the status of that thing and, to that extent, is conclusive in rem". That case concerned a decision forfeiting a boat to the Crown pursuant to the Fisheries Act 1968 (Vic). The forfeiture order was held to operate as a judgment in rem, so that the Crown's title prevailed against a person who, without notice of the forfeiture, purchased the boat in good faith from a purchaser of the offender. However, that was a case where the statute gave only the complainant and the defendant in the criminal proceedings opportunity to participate in the forfeiture proceedings. It would be authority to support
the view that, notice having been given pursuant to s66(2)(a), the determination could operate in rem even though interests not described in s66(2)(a) were affected by the determination.
Then it is submitted for the respondent there is potential for substantial inconvenience, and even injustice, if it is the case that any failure to comply fully with the terms of s66(1)(a) spell invalidity. This could occur if a very minor interest not having been given notice resulted in the nullity of a determination.
This submission, in my opinion, turns attention to the interrelationship between s66(1)(a) and s66(2)(a). If notice is given in accordance with the requirements of the latter paragraph the registrar "is taken to have given notice to all persons whose interests may be affected by a determination in relation to an application". The applicants' case seeks to keep open for argument on another occasion whether compliance by the registrar with s66(2) nevertheless leaves the registrar with a duty to give notice above that of public notification ("non‑imputed notice") to other persons whose interests may be affected pursuant to s66(1)(a). The words which open s66(2) state that the registrar "is taken to have given notice to all persons whose interests may be affected by a determination in relation to an application" if she complies with the provisions of the subsection. These words are applicable both to the giving of notice containing details of the application to the parties listed in s66(2)(a)(i)-(vi) as well as to the notification of the public in the determined way pursuant to s66(2)(b). Whether or not the registrar has a duty to give written notice to persons other than those pursuant to s66(2)(a) it is clear that s66(2) provides a means of notice being given consistent with s66(1)(a) being mandatory in its terms. Having effect in its terms it provides a statutory means of avoiding substantial inconvenience and injustice by use of the combination of notice giving details of the application to specific people and to the public ("imputed notice"). That is so whether or not the registrar has a wider duty not the subject of submissions on this application.
Then it is submitted for the respondent that the Federal Court has the broadest possible powers of review pursuant to ss167 and 168 of the Act. Section 167(6) provides that after the twenty eight days allowed by s167(5) for an application to be reviewed after a determination is registered, a party may apply for review only with the leave of the Court and the Court may grant such leave only "in exceptional circumstances". It is submitted there is therefore an ability in the Court to remedy by way of review any injustice resulting from a failure to give notice pursuant to s66 so that it could not have been the intention of the legislature that any failure to comply fully with the terms of s66 would result in a nullity. In my opinion these provisions do not support a directory interpretation of s66. The existence of a right of review and of a grant of leave, the latter being entirely dependant on exceptional circumstances, cannot determine the character of s66 which must be viewed in relation to the objects and purpose of the Act as a whole.
The submissions for the respondent then turn to the content of s66(1)(a). It is firstly submitted that the obligation there arising is to "give notice". It is said this expression does not import any particular procedure as a matter of law and does not require that a document be created or notice be in writing. Consequently, it is argued the provisions of s28A of the Interpretation Act 1984 (Cth) are not attracted by the expression.
It is further submitted that s66(1)(a) deliberately uses the very wide expression "give notice" in recognition of the fact there will be very many different types of interest to which the section is potentially applicable and that the mode of notification will vary depending upon relevant factors. It is said this is consistent with a practical approach taken to questions of notice in other areas of law: cf Hilaire v Harvie (1950) 68 WN (NSW) 61 recognising the appropriateness of substituted service for practical reasons.
For the respondent it is therefore contended it is unreasonable to construe s66(1)(a) as requiring the giving of notice in writing served individually upon each person to be notified. Support for that is sought by reference to s66(2) which specifically provides that notification of the public may be "in the determined way" which by operation of s252, may include notice in newspapers or by radio broadcasts or television transmissions.
For the applicants it is contended the effect of s66(1)(a) in relation to the form of notice is to be understood by consideration of that paragraph in relation to s66(2). It is submitted for the applicants that by providing in the latter subsection for the possibility of
imputed notification of persons with unregistered proprietary interests and members of the public by newspaper advertisements, the legislation manifests an intention that the interests falling within s66(2)(a) should be served with notice in the form of a document and that imputed notification is only sufficient where it is expressly authorised. Section 66(2)(a) requires the giving of "notice containing details of the application". That requirement provides support for the view that the provision of notice should be in a documentary form unless otherwise authorised. The setting of s66 is such that the rights which it addresses are not such as should be determined upon imputed notification as sufficient for the operation of the legislation: cf Secretary, Department of Social Security v Garratt (1992) 109 ALR 149 at 157. In my opinion s66(1)(a) considered in its textual and policy context requires the giving of a written notice other than where provision is expressly made to the contrary in s66(2)(b). It follows that the provisions of s28A of the Interpretation Act are attracted to determine the appropriate mode of service in that case where applicable in its terms.
Examination of the language of s66(1)(a) and the scope and object of the Act lead to the conclusion the paragraph is mandatory in the sense that subsequent acts done under the Act are invalid if there is non‑compliance with it. As presently advised, compliance with it will follow from compliance with s66(2). Examination of the Act discloses Parliament's intention was that the outcome of proceedings before the Tribunal could be a determination which, when registered with or determined by the Federal Court, will be binding upon persons affected by the application, subject only to the possibility of review by that Court: see ss70, 71, 73, 165‑170 of the Act. The character of that intention is not affected by issues arising from Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; cf The Wik Peoples v The State of Queensland at 6, 8 and 10‑11 (unaffected on appeal). When s66(1)(a) is viewed in that context and in the context of s66(2) it is seen as one designed to bring natural justice to persons whose interests may be affected. Notice is therefore important to attaining the general object of the statute of achieving a binding determination in relation to Native Title. If the interests of a person are affected by an application the carrying into effect of the general object of the Act would be defeated in relation to that interest if no notice were given. Where the object is the binding nature of Native Title in relation to all interests to which it relates,
degrees of non‑compliance become degrees of prejudice to the substantial achievement of the general object, subject always to the effect of s66(2). I therefore consider s66(1)(a) is mandatory.
Is section 66(2) mandatory?
On its face, by operation of its opening words, s66(2) of the Act is a deeming provision and one which is directory (by use of the word "may"). However, for the applicants it is submitted that on a true understanding of the operation of the subsection it is mandatory in its terms.
This contention is supported by reference to s66(3). It is said that because no other provision is made for notice to be given to the same effect as s66(3), unless s66(2) is complied with no notice pursuant to s66(3) will be given. The implication of this, it is contended, is that the legislation assumes notice to the affect of s66(3) will at least be given pursuant to the notice arising under s66(2). This is supported by reference to s68(2)(b) which provides the rights of a person to be a party are dependant upon notification to the Registrar "within the period specified in the notice under s66". The consequence is that s66(3) - which arises from the giving of notice under s66(2) - is seen as the exclusive method of giving the notice upon which s68(2)(b) becomes operative. The consequence is, so the submission runs, unless s66(2) is mandatory so that notice follows under s66(3), there is nothing upon which s68(2)(b) can operate.
It is submitted this argument may be tested by positing the position which would emerge if it was the case that the Registrar had a discretion whether or not to give a notice under s66(2). If that was the case, it is said there would still be the obligation upon the Registrar pursuant to s66(1)(a). Such a person would be eligible to be a party pursuant to s68(2)(a) but would be required to have notified the Registrar "within the period specified in the notice under s66" when no such period would have been specified in relation to that person.
In my opinion it does not follow from s68(2)(b) that the only period for a notice under s66 is the period in s66(3). The former paragraph uses the words "within the period specified in the notice under section 66". The reference to "the notice under section 66" is capable of being a reference to a notice under s66(1)(a) as well as under s66(3). Only in the latter case is the period of two months mandated. In the case of a notice under s66(1)(a) no such time limit is fixed. However, s68(1)(b) carries the implication that a time limit should be included in such notice. The Act is therefore able to work without construing s68(1)(b) as requiring s66(2) to be mandatory.
Similarly the reference in s67(2)(a) to "the period specified in the notice under section 66" is capable of operating both by reference to the period mandated under s66(3) for a notice under s66(2) as well as the period selected in a notice under s66(1).
However, again I consider the true interpretation of the subsection is only to be found by reading it closely with subs66(1). Given that I consider s66(1)(a) is mandatory in its terms, it follows that compliance with s66(2)(a) is mandatory because it identifies those interests which must be notified pursuant to s66(1)(a) in order for the registrar to be "taken to have given notice to all persons whose interests may be affected by a determination in relation to an application". In discharging the mandatory duty arising pursuant s66(1)(a) the registrar is not able to avoid giving notice to those persons specified in s66(2)(a). The textual considerations relating to these subsections, and the policy which they serve, again compel this conclusion.
Do the applicants have an interest within section 66(2)(a)?
The applicants claim to fall within s66(2)(a)(v) and to be persons who hold "a proprietary interest in any of the area covered by the application, being an interest that is registered in a register of interests in relation to land or waters maintained by the Commonwealth, a State or a Territory".
There are related definitions which affect an understanding of these words. In s253 it is provided that:
""interest", in relation to land or water, means:
(a)a legal or equitable estate or interest in the land or waters; or
(b)any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with:
(i)the land or waters; or
(ii)an estate or interest in the land or waters; or
(c)a restriction on the use of the land or waters, whether or not annexed to other land or waters."
"Land" is defined as follows by the same section:
"includes the airspace over, or subsoil under, land, but does not include waters."
There is potential for argument on whether certain mining tenements are "a proprietary interest" in any of the area covered by the application and whether particular mining tenements are registered in a register of interest in relation to "land or waters" of the requisite type. However, on the issue whether the applicants' mining tenements fall within s66(2)(a)(v) the respondent does not desire to make any submissions for the purposes of the present case. It follows there was an obligation on the registrar to give notice to the applicants in respect of their mining leases and other tenements.
If that were not the case - for example, if the particular mining interests were not able to be characterised as proprietary interests or the register was not one in relation to land or waters - the question would arise whether the mining tenements which did not fall within s66(2)(a)(v) were nevertheless interests which could be affected by a determination and in relation to which the registrar was required to give notice pursuant to s66(1)(a). It would seem apparent that those mining tenements would be interests of the requisite character within that paragraph: cf Members of Yorta Aboriginal Community & Ors v The State of Victoria (Olney J, 13 October 1995, unreported). As has been seen, the question whether the registrar would then have a mandatory duty to give non‑imputed notice to those interests is an issue reserved for submission on another occasion.
Does notification to the public pursuant to section 66(2)(b) satisfy the mandatory requirements of section 66(1)(a) in respect of an interest in section 66(2)(a)?
In my opinion notification to the public pursuant to s66(2)(b) cannot satisfy the mandatory obligations arising pursuant to ss66(1)(a) in respect of an interest in s66(2)(a). Section 66(2) provides for (a) the giving of notice to the parties enumerated in subpars(i) to (vi) and additionally (b) notification to the public.
It is not necessary therefore to consider the fourth issue raised for the applicants in view of the position reached; that is, whether the advertisements were defective.
Application to respondent's reasons
Returning to the reasons of the respondent, it is apparent she relied upon the weighing of the considerations set out in par8.1 of the Procedures. However, examination of that paragraph shows that it purports to set out matters germane on the question of "how to give notice of the application to all persons whose interests may be affected by a determination in relation to it (s66(1)(a))". The paragraph is not addressing the question of to whom notice should be given, but only the manner of its giving. It is a Procedure applicable in relation to the manner of giving notice to those properly coming within s66(1)(a).
Because the applicants had interests falling within s66(2)(v) and were entitled to non‑imputed notice, the respondent fell into error of law in deciding the applicants were not entitled to receive notice.
In her reasons the respondent concluded it would not be appropriate to provide for a further notification period in addition to that which expired on 18 December 1995. It was not submitted that to allow for a further notification period, as a consequence of notification being given to the applicants, would be contrary to law.
Conclusion
For these reasons I consider the applicants are entitled to the order which they seek and to the substitution of a decision that the respondent give notice of the Claim to the applicants. No additional purpose would be served by the making of a declaration.
I certify that this and the preceding 15 pages are a true copy of the Reasons for Judgment of his Honour Justice R D Nicholson.
Associate:
Date:19 March 1997
APPEARANCES
Counsel for the Applicant: Mr C L Zelestis QC
and Ms M Hullet
Solicitors for the Applicant: Freehill Hollingdale & Page
Counsel for the Respondent: Ms C Wheeler QC made written submissions
Solicitors for the Respondent: Australian Government Solicitor
Date of Hearing: 27 August 1996
Date of Judgment: 19 March 1997
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