Case: Byron Environment Centre Incorporated v Arakwal People (1997) 78 FCR 1
Outcome: applied
A holder of a native title interest in the Land is entitled to be joined to the proceedings (s 84(5) of the Act; Munn v State of Queensland [2002] FCA 486). A claim to native title is ordinarily, of itself, sufficient to justify joinder under s 84(5) of the Act ( Munn at [8]). While the interests relied upon for joinder need not be proprietary or legal or equitable in nature, they must be ' not indirect, remote or lacking substance...the interests must be capable of clear definition ' ( Byron Environment Centre Incorporated v Arakwal People (1997) 78 FCR 1 at [7]-[8] per Black CJ) ('the Byron test'). The Byron test does not recognise interests of an emotional kind ( Byron at [8] per Black CJ). The nature and content of the right to become a party to proceedings for a determination of native title suggest that the interests asserted must be of such a character that they may be affected in a demonstrable way by the determination ( Byron at [7] per Black CJ). 11 In Davis-Hurst v Minister for Land and Water Conservation (NSW) (2003) 198 ALR 315, Branson J ordered the joinder of Mr Kemp, who did not wish himself to advance a claim for native title, to a proceeding for a determination of native title. Mr Kemp's interest as a descendant of the Pirripaayi people, was to avoid the making of a determination by the Court that discounted the traditional connection which he believed to exist between the Pirripaayi people and the land. Her Honour (at [28]) was of the view that this was an interest that satisfied the Byron test and was relevantly affected by the determination (at [27]). Justice Branson contrasted that interest with Mr Kemp's interest in establishing and maintaining the integrity of his own research and dissemination of his knowledge of Pirripaayi language and culture. The latter interests were characterised as "indirect" interests which fell outside the Byron test (at [27]). 12 Accepting that an interest that is not indirect, remote or lacking in substance is a sufficient interest for the purposes of s 84(5): &#8226; What is the nature of the interest asserted by Worimi? &#8226; Does a person seeking to establish native title as a respondent have an "interest" within the meaning of the Byron test if they are incapable of meeting the requirements of the Act for a claimant application? 13 Worimi submits that he has, in his affidavit, demonstrated an arguable case that he and others in his family may possess native title rights and interests in the Land. The Land Council submits that the substance of the application for joinder is Worimi's belief that he and the female members of his immediate family hold such rights and interests. That belief is not, the Land Council submits, an interest that may be affected by a determination in these proceedings within the meaning of the Byron test. The Land Council submits that Worimi's personal belief is no more than an interest of an emotional kind. 14 The Land Council submits that joinder should not be permitted where the person seeking to be joined cannot establish anything more than a personal belief that he and his family hold native title. 15 It is not in dispute that Worimi's claimed native title rights and interests must satisfy the Byron test. The Land Council submits that standing as a party is limited to persons whose interests: &#8226; may be genuinely, demonstrably and not indirectly affected by a determination of native title; &#8226; are not remote or so insubstantial that it will be mere speculation as to whether and, if so, how they may be actually affected by the determination; &#8226; can be defined with reasonable certainty and is in each case readily ascertainable as a matter of fact and law. 16 Worimi satisfies that test. As in Davis-Hurst at [27], Worimi is seeking to avoid the making of a determination by the Court that discounts the traditional connection which he believes to exist between the Worimi people and the Land. Worimi's interest is that of a person who claims that native title exists over the Land. That interest is not indirect, remote or lacking in substance. It is not advanced as an interest of an emotional kind. It is clearly directly affected by a declaration that there is no native title. It is not remote or insubstantial. The Land Council submits that it can be no more than a belief. However, Worimi asserts that native title exists, founded on evidence that was not tested. There was no evidence on this application for joinder to contradict Worimi's evidence or to demonstrate that it fails to satisfy the Byron test. The findings in Hillig (No 2) and Worimi do not extend to a determination that native title does not exist or to a rejection of Worimi's factual assertions. Those decisions covered the failure of Worimi to comply with the requirements of the Act in relation to claimant applications. It has not yet been determined whether Worimi's belief is or is not well-founded.