Case: Ward v Western Australia (1998) 159 ALR 483
Outcome: considered
In the end the issue is one of statutory interpretation having regard to the text, structure and purposes of the Act. As conflicting judicial views have been expressed on this issue on a number of occasions, these provide a convenient starting point for my own consideration of the matter. It is appropriate to begin with Western Australia v Ward . The three applications dealt with in that case were made in accordance with the procedures laid down in the Act prior to the 1998 amendments. The first, and principal application if I can so describe it, had been referred under the "Old Act" to the Federal Court for curial determination. The other two applications were filed subsequent to the first but had not been so referred. The third of these (involving a claim by the Balangarra Peoples) overlapped a small part of the other two applications. The Old Act contained no provision equivalent to s 67 of the "New Act" for dealing with the overlap claims in the same proceedings. Under the Old Act parties provision (s 68), the Balangarra claimants were made respondents to the first application. The trial judge, Lee J, subsequently ordered that the Balangarra be the third applicants in the principal application. At the hearing of the application Lee J dealt as follows with a jurisdictional question raised in relation to the third applicant ( Ward v Western Australia (1998) 159 ALR 483 at 551-552): "It was faintly submitted in argument that the court could not make a determination of native title which included a determination of the interests of the third applicants unless the determination was in respect of an application made by the third applicants and referred to the court by the tribunal pursuant to s 81 of the Act as it then stood. That submission may be dealt with quite shortly. It is apparent from the provisions and objects of the Act that the court is given jurisdiction to resolve a dispute by determining whether native title exists. Once a matter attracting jurisdiction is before the court the whole of the dispute as to the existence of native title in respect of the land the subject of the application referred to the court, and arising out of the facts which underlie that matter, can be dealt with by the court if the appropriate parties are properly joined to the litigation to have that dispute resolved. Such a course was followed in this matter." 38 On appeal, Beaumont and von Doussa JJ concluded of this ( Western Australia v Ward (FC) at [192]-[193]): "192 In our opinion Lee J was plainly correct in so holding. Even if the Balangarra Peoples had not obtained leave to be joined as an applicant, and had participated in the hearing as respondents, the jurisdiction of the Court extended to making an order which determined that they held native title rights and interests within the determination area. Section 225 expressly requires the Court to determine the persons or each group of persons holding the common law rights comprising native title, and the nature and extent of those rights and interests. Section 225 does not limit the jurisdiction of the Court solely to defining the rights and interests of the named persons who initiate the claim for a determination of native title . 193 Section 213(1) of the NTA provides that if, for the purpose of any matter or proceeding before the Federal Court, it is necessary to make a determination of native title, that determination must be made in accordance with the procedures in the NTA. In our opinion that requirement was fulfilled in respect of the determination in favour of the Balangarra Peoples. The Balangarra Peoples were parties claiming an interest in the area the subject of the claim. They became parties as respondents pursuant to s 68 of the old Act. Their participation in proceedings was therefore in accordance with the procedures of the NTA and, as we have noted, the provisions of s 225 and the in rem nature of the proceedings required the Court to make a determination in respect of the rights and interests claimed by them. Upon their establishing the rights and interests claimed, they were entitled to a favourable determination declaring those rights and interests. The fact that the trial judge, as a matter of procedural convenience, gave leave to the Balangarra Peoples to become applicants, did not affect the jurisdiction of the Court to make a determination in respect of their rights and interests. Moreover, when judgment was delivered, s 67 of the new Act required that the Court make such order as it considered appropriate to ensure that the overlapping claim of the Balangarra Peoples be 'dealt with in the same proceeding'." Emphasis added.