Editors --- "Woodridge on behalf of the Gomilaroi People v Minister for Land & Water Conservation for New South Wales - Case Summary" [2002] AUIndigLawRpr 3; (2002) 7(1) Australian Indigenous Law Reporter 17

• Woodridge On Behalf Of The Gomilaroi People V Minister For Land &Amp; Water Conservation For New South Wales
• Facts:
• Held:

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Court and Tribunal Decisions – Australia

Woodridge on behalf of the Gomilaroi People v Minister for Land & Water Conservation for New South Wales

Federal Court of Australia (Katz J)

11 April 2001

(2001) 108 FCR 527; [2001] FCA 419

Native title — application under the Native Title Act 1993 (Cth) — whether NSW Farmers’ Association Limited is party to the proceeding — whether ‘interests’ under s 84(3)(a)(iii) is limited to ‘interest, in relation to land or waters’ within meaning of s 253 — whether representative organisation can have relevant interests indirectly by virtue of members’ interests — whether organisation has relevant interests where it conducts activities which may be curtailed, significantly affected or otherwise affected by native title determination — whether objects of an organisation generate relevant interests or mere intellectual concern

Facts:

At the time of the hearing there was a native title determination application pending in the Court.

The NSW Farmers’ Association Limited (‘the Association’), pursuant to s 84(3)(b) of the Native Title Act 1993 (Cth) (‘the Act’), notified the Court in writing within the period specified that it wanted to be a party to the proceeding on the following bases:

The claim area may cover leasehold or other interests held by members of this Association.

A determination in this claim may be precedential in relation to other claims over interests held by farmers members [sic] of this Association throughout NSW.

The NSW Aboriginal Land Council (‘the Council’) objected to the Association being accorded party status in the proceeding.

The Association sought, expressly or by implication, during the hearing to rely on its possession of interests other than those interests on which it relied in its notification to the Court. The interests that the Association claimed to be affected were ‘the advancement, promotion and protection of rural industries’ as illustrated through the Association’s ‘objects’ clause, its raison d’être and its role as a peak industry body, its dealing with public instrumentalities in relation to rural matters generally and native title matters specifically.

The Council submitted that:

(a) the failure of the Association to establish that it possessed, within the meaning of s 253 of the Act, an ‘interest’ in relation to the land was fatal to the Association’s claim to possess, within the meaning of s 84(3)(a)(iii) of the Act, ‘interests [which] may be affected by a [native title] determination in the proceeding’.

(b) the Council’s previous similar submission to a Full Federal Court in Byron Environment Centre Incorporated v Arakwal People [1997] FCA 797; (1997) 78 FCR 1, in which the submission had then been unanimously rejected by the Court, could be distinguished on the basis that that case involved s 68(2)(a) of the original Act and was prior to the insertion of s 84(3)(a)(iii) in the Act. The new provision, along with other new provisions, deprived Byron’s case of any precedential effect so far as s 84(3)(a)(iii) was concerned.

(c) since a person without an ‘interest’, within the meaning of s 253 of the Act, could be involved in a proceeding before this Court by acting as an agent for a party and since, provided all parties at a mediation conference before the National Native Title Tribunal consented, such a person could be involved in that conference by being an observer or participant, it should therefore be inferred that the Parliament had intended that the word ‘interests’ in s 84(3)(a)(iii) of the Act should be construed as meaning ‘interest[s]’ of the type defined in s 253 of the Act.

Held:

1. The New South Wales Farmers’ Association Limited is not entitled to party status in the present proceeding as it does not possess interests, within the meaning of s 84(3)(a)(iii) of the Act, that may be affected by a determination in the proceeding. [35]

2. A representative organisation that has only a wholly indirect interest in a proceeding will not have a sufficient or relevant interest. Thus, the matters on which the Association relied on in its notification to the Court did not entitle it to party status in the proceeding. Byron Environment Centre Incorporated v Arakwal People [1997] FCA 797; (1997) 78 FCR 1 followed. [25]

3. The 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: they are of mere intellectual concern. However an association may have interests that will be affected by a determination of native title if its activities might be curtailed or significantly affected by the determination. Byron Environment Centre Incorporated v Arakwal People [1997] FCA 797; (1997) 78 FCR 1 followed. [31]

4. There was nothing in the matters ultimately relied upon by the Association that would justify a conclusion that, if there were a native title determination in the present proceeding, the Association’s activities might thereby be curtailed or significantly affected. [33]

5. In response to the Council’s submissions:

(a) A person need not possess an ‘interest’ in relation to land or waters, within the meaning of s 253 of the Act, in order to possess an ‘interest’ under
s 84(3)(a)(iii). [21]
(b) Section 68(2)(a) of the Act in its original form used, in substance, the same words as the current
s 84(3)(a)(iii) and had used them for substantially the same purpose. [11]
(c) The definition in s 253 of the Act only applies when ‘interest’ is used ‘in relation to land or waters’ and it is not used in that way in s 84(3)(a)(iii). Byron Environment Centre Incorporated v Arakwal People [1997] FCA 797; (1997) 78 FCR 1 followed. [13]
(d) The presence in the Act of ss 84B and 136C does not alter the s 253 definition of ‘interest’ from being applied only ‘in relation to land or waters’. [15]
(e) The Parliament, in 1998, with knowledge of the Byron decision, would not have repeated in substance in s 84(3)(a)(iii) of the Act the same phrase as the one that had been construed in the Byron case if it had intended thereby to convey a different meaning. Te v Minister for Immigration & Ethnic Affairs [1999] FCA 111; (1999) 88 FCR 264 at 272 referred to. [17]