Case: Byron Environment Centre Incorporated v Arakwal People (1997) 78 FCR 1
Outcome: referred to
In deciding whether NTS had the requisite interest under s 84(5) , Tamberlin J applied the principles identified by the Full Court in Byron Environment Centre Incorporated v Arakwal People (1997) 78 FCR 1. His Honour agreed with the views of Katz J in Woodridge v Minister for Land and Water Conservation for the State of NSW [2001] FCA 419 ; (2001) 108 FCR 527 that despite amendments to the Native Title Act the reasoning in Byron was applicable to the case before him. His Honour summarised the Full Court's views as follows, at [13]: 'In Byron Environment Centre , the Full Court held that although the relevant "interests" are not confined to interest in land or water, they do not extend to mere emotional associations, ideological or bare intellectual interests in the subject matter of the application. The "interests" must not be indirect, remote or lacking in substance and must be capable of clear definition such that they may be affected in a discernible way in relation to the application: at 7-10 per Black CJ.' 7 Tamberlin J considered the functions of a representative body and considered that they would be facilitated if NTS were a party to the proceeding. His Honour also observed that the expression, 'a determination in the proceedings' should not be equated with a final determination of native title rights. In considering the nature of the 'interests' referred to in the section, his Honour said at [24]: 'In relation to the asserted appropriateness of a narrow construction of the expression "interests" because of a power to veto an otherwise agreed settlement, the provisions of s 84(8) should be borne in mind. The provision empowers the Court at any time to order a party other than an applicant to cease to be a party to the proceedings. This power could be invoked by the Court if a representative body is a party to the proceedings and adopts a grossly unreasonable approach in relation to a proposed consensual determination of the proceedings. In addition, it should be kept in mind that the Court must always be satisfied that the person or body has the requisite interest in any particular circumstances and this provides a safeguard on the extent to which other persons or bodies can be joined.' 8 Tamberlin J held that NTS had a sufficient interest to meet the requirement of s 84(5) and that the application for joinder should be allowed. For the same reasons I am satisfied that NTS has sufficient interest in the compensation application and the order for joinder in this proceeding should be made. 9 NTS has brought the present application to dismiss the proceedings under O 35A r3(1) of the Federal Court Rules because of a failure to progress the compensation claim. The following history of the matter, which I accept as correct, is taken from the affidavit of Mr Savidis. 10 The compensation application covers an area "identical to the external boundaries of the Barkandji Traditional Owner's Application (NSD 6084 of 1998)" in which NTS is a party and the legal representative of the applicant. This application, known as the Barkandji #8 application, was first lodged with the Tribunal on 8 October 1997.