Case: Re An Application for Native Title Determination by the Gunai People (unreported, National Native Title Tribunal, 17 January 1997, French P)
Outcome: cited
J, like Black CJ, rejected a construction of the party provisions of the Act which would limit their application to persons with legal or proprietary interests. His Honour said (16): who may not have a right or interest in the land in a proprietary sense, but nevertheless have an interest in a broader sense, will be entitled to have a say in the matter and be able to negotiate some arrangement to accommodate their interests if they are parties to the application, which is the question arising in this case.' His Honour referred, without disapproval, to my decision, as President of the National Native Title Tribunal, in relation to the Gunai Peoples' native title determination application in 1997 allowing joinder of the Lake Tyers Beach Sport and Angling Club which comprised: 65 members who use the waters and surrounding areas of Lake Tyers daily for recreational fishing.' An Application for Native Title Determination by the Gunai People (unreported, National Native Title Tribunal, 17 January 1997, French P) Lockhart J said that the standing provision was not to be encased in technical rules. The class of interests for which it provides is wider than that defined by s 253 and it would be impossible and unwise to attempt to define the class in any definitive sense. It would depend on the facts and circumstances of each case (at 19): interest must be above that of an ordinary member of the public, and must be not that of a mere intermeddler or busybody. The person must have some interest that may be affected by the native title determination. The persons who sought the status of parties before French J in the Gunai application provide a good example of persons with a relevant interest for the purposes of s 68(2)(a). If it be said that this is too broad an analysis and that the floodgates will open, then I must say that over the past 18 years on the Bench of this Court I have never seen the floodgates open in any matter, despite dire predictions to the contrary.' In Woodridge v Minister for Land and Water Conservation for the State of New South Wales [2001] FCA 419 ; (2001) 108 FCR 527, Katz J considered the proposed joinder of the New South Wales Farmers' Association pursuant to a notification under s 84(3)(b) of the Act. His Honour denied the Association party status on the basis that it had failed to establish its possession of interests which might be affected by a native title determination in either sense of: (a) proprietary or contractual interests in the land the subject of the application; or (b) conducting activities which may be adversely affected by such a determination. His Honour held, following the judgments in Byron Environment Centre that a body that represents the interests of others whose members have interests that may be affected does not, for that reason alone, become a person whose interests are affected. Katz J distinguished the Gunai decision and its acceptance by Lockhart J on the basis that the Lake Tyers Beach Sports and Angling Club was not a legal person, separate from its individual members. His Honour said that to recognise 'the Club' as a party was simply an informal method of recognising its individual members as parties. He observed that Lockhart J appeared to be conscious of the Club's unincorporated status.