Case: Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1
Outcome: cited
leading case on the range of 'interests' which confer standing under the Act is Byron Environment Centre Inc v Arakwal People (1997) 78 FCR 1. That case concerned the party provisions of the Act in effect before the 1998 amendments. They were ss 68 and 69 . The decision, however, remains authoritative for the similarly worded party provisions in s 84. In that decision the Full Court held that the interests which could be affected by a determination in relation to an application for native title and thus give rise to an entitlement to party status are not confined to the interests in land or waters which are referred to in s 253 of the Act. Black CJ held that the interest sufficient to give a person the right to become a party to an application should be greater than that of a member of the general public. They must be genuine and the possible effect must be genuine. The Parliament could not have contemplated that the rights given to persons as parties would have other than a genuine foundation. His Honour said (at 7): nature and content of the right to become a party to proceedings for the determination of native title, with the power as a party in effect to veto the process of mediation and conciliation which the Act favours, suggests that the interests with which s 68(2)(a) and the related sections dealing with parties are concerned are interests that are not indirect, remote or lacking substance. The nature and content of the right also suggests that the interests must be capable of clear definition and, equally importantly, that they are of such a character that they may be affected in a demonstrable way by a determination in relation to the application.' The requisite interest did not need to be proprietary, legal or equitable. He said (at 7): the interests must be genuine and not indirect, remote or lacking substance, there is no indication that, for example, a person who has a special, well-established non-proprietary connection with land or waters which is of significance to that person is not be regarded as having interests that may be affected by a determination. To the contrary, the consensual objects of the Act would seem to be advanced if a person with genuine interests of that nature that might or would be affected did have the rights of involvement in the process of native title determination given by the Act to a person who is a party. Each case will of course turn on its own facts and whether or not interests will or may be affected will depend upon an assessment of the interaction between the interests asserted by a person who wants to be a party and the nature and extent of the native title rights and interests claimed.' The concept of interest did not extend to interests of 'an emotional conscientious, ideological or intellectual kind only'. Relevantly his Honour also said (at 9): formation of an association or the incorporation of a body with particular objects will not, of itself, create interests that may be affected for the purposes of provisions in the Act relating to parties. ... 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; such interests as it thereby has are wholly indirect. is not to deny that a corporation may have interests that may be affected by a determination of native title if, for example, its activities might be curtailed or otherwise significantly affected by the determination.' 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. In Harrington-Smith , Lindgren J referred to the Byron Environment Centre case and the Woodridge decision and said (at 2): do not find it necessary to refer to the discussion of the matter in those cases, beyond noting that they establish that a society, organisation, association or other body which voices, protects or promotes the concerns and interests of its members does not, by reason of that circumstance alone, have "interests [which] may be affected by a determination in the proceedings" for the purposes of subs 84(5) of the Act.' Applying that proposition to the position of the Chamber of Minerals and Energy of Western Australia, his Honour refused its application for joinder. See also Adnyamatha People v South Australia [2003] FCA 1377 ; (2003) 133 FCR 242 (Mansfield J). It is clear from the authority of the Full Court decision in Byron Environment Centre that WAFIC cannot acquire party status by reason of the possible effects of a native title determination on the interests of its members. It asserts, however, that it has an affected interest by reason of its participation in statutory committees advising government in relation to managed fisheries, some of which exist in the claim area. It does not appear to me however that this function, carried out on the part of WAFIC, can be compared to that of a statutory authority with direct responsibility for the management of an area the subject of a native title determination application. WAFIC's involvement as described in its submissions and supporting evidence, seems to relate to advice to government on policy for the management of the relevant fisheries. No evidence is shown which logically link the economic interests of WAFIC as an organisation to a native title determination in the claim area. Nor am I satisfied that the evidence discloses any real basis upon which WAFIC's capacity to participate in the committees to which it has referred would be affected. In so saying, I accept that WAFIC has been joined as party in some applications without any contention and has acted as agent in others. It has played a valuable role in the submissions that it has made in such cases, not least in the Bardi Jawi case which I heard as trial judge, albeit WAFIC had been joined by order of Lee J. In my opinion however, I am bound by the authority in Byron Environment Centre to reject WAFIC's application for joinder as a party. It may of course act as agent on behalf of a party in relation to the proceeding. That does not require the intervention of the Court. Under s 84B a party to a proceeding can appoint an organisation as its agent. WAFIC's application for joinder is therefore refused. The same considerations arise in relation to the Ngarla Peoples' claim and again, WAFIC's application for joinder in that claim will be refused. I note that among the proposals for amendments to the Act arising out of the recent Commonwealth Government review is a proposal under which industry bodies could be joined as parties. In my opinion, provided that their participation is confined to the representation of their member interest holders in matters directly relevant to the impact of a native title determination on those interests, then the capacity to effect such a joinder may be a useful facility.