Editors --- "Walker on behalf of the Ngalia Kutjungkatja People v State of Western Australia - Case Summary" [2002] AUIndigLawRpr 43; (2002) 7(3) Australian Indigenous Law Reporter 17

• Walker On Behalf Of The Ngalia Kutjungkatja People V State Of Western Australia
• Facts:
• Held, Directing Joinder:

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Court and Tribunal Decisions - Australia

Walker on behalf of the Ngalia Kutjungkatja People v State of Western Australia

Federal Court of Australia (French J)

10 July 2002

[2002] FCA 869; (2002) 191 ALR 654

Native title determination application — joinder of parties — sufficient interest — mining company — applications for exploration licences — applications advanced in processing — substantial exploration program in region — substantial economic interest in area — whether sufficient interest for joinder

Facts:

On 12 December 2000, the Ngalia Kutjungkatja People filed an application for a native title determination. The application covered an area of about 65,775 square kilometres located in Western Australia between Wiluna to the north, Menzies to the south, Laverton to the east and Mt Magnet to the west.

On 29 November 2001 the National Native Title Tribunal wrote to AngloGold Australia Ltd (AngloGold) advising it of the claim and noting that it was the holder of an Exploration Licence E37/618 in the relevant area. AngloGold was advised of its entitlement to become a party to the application and gave notice to the District Registrar of the Federal Court in Perth of their intention to become a party to the application.

AngloGold found upon inquiry that it had actually surrendered exploration licence E37/618 on 5 February 2002. On 21 February 2002, AngloGold’s solicitors wrote to the District Registrar enclosing a notice of intention to become a party on the basis that the company was ‘holder of Exploration Licence 53/896 ... together with others, located within the claim area’. An amended notice of intention to become a party was sent on 9 April 2002. The interest then asserted was ‘as an applicant for Exploration Licence 53/896 ... together with others, located within the claim area’.

On 12 April 2002, a Deputy District Registrar of the Federal Court wrote to AngloGold’s solicitors indicating that it did not appear that an application for an exploration licence would meet the requirement of a current interest in the claim area as prescribed in the Native Title Act 1993 (Cth) (the Act).

In a letter dated 24 April 2002, AngloGold’s solicitors asserted that on the basis of its applications for exploration licences and prospecting licences in the area the subject of the native title determination application it had sufficient grounds to be joined as a party. The matter was listed for hearing before a judge of the Court.

Held, directing joinder:

1. French J: Under s 84(3)(a)(iii) of the Act a person is entitled to become a party to a native title determination application if ‘the person’s interests may be affected by a determination in the proceedings’ and ‘the person notifies the Federal Court, in writing, within the period specified in the notice under s 66 of the Act that the person wants to be a party to the proceeding’ as per s 84(3)(b) of the Act: [10].

2. Interests with which s 84(3)(a)(iii) of the Act is concerned with are interests that are not indirect, remote or lacking substance and interests capable of clear definition and interests that are of such a character that they may be affected in a demonstrable way by a determination in relation to the application: [12]. Byron Environment Centre Inc v Arakwal People [1997] FCA 797; (1997) 78 FCR 1 at 6 per Black CJ, 18 per Lockhart J and 40 per Merkel J applied.

3. The interests do not need to be proprietary, legal or equitable in nature. Thus a person who has a special, well established non-proprietary connection with land or waters that is of significance to that person can have interests that may be affected by a determination and should be joined to the proceedings: [13]. Byron Environment Centre Inc v Arakwal People [1997] FCA 797; (1997) 78 FCR 1 at 6 per Black CJ applied.

4. The reasoning of the Full Court in the Byron Environment Centre case as to the effect of the definition of ‘interest’ in s 253 of the Act remained as applicable to s 84(3)(a)(iii) of the Act as it was to the former s 68(2)(a): [14]. Woodridge v Minister for Land and Water Conservation (NSW) [2001] FCA 419; (2001) 108 FCR 527 per Katz J applied.

5. There remained discretion to terminate the involvement of a party if it acted grossly unreasonably: [17]. Munn v State of Queensland [2002] FCA 78 per Emmett J; Kooma People v State of Queensland [2002] FCA 86 per Drummond J and Bissett v Minister for Land and Water Conservation (NSW) [2002] FCA 365 per Tamberlin J applied.

6. The primary indicators of AngloGold’s interests are the applications for exploration licences, which were lodged under Div 2 of Pt IV of the Mining Act 1978 (WA). From the statutory scheme, an applicant for a mining tenement has no interest in the land until the grant as the root of the title is granted: [19]. Crocker Consolidated Pty Ltd v Wille [1988] WAR 187 at 190 (Burt CJ) considered; Atkins v Minister of Mines (1996) 15 WAR 226 at 232 (Rowland J) considered.

7. Although AngloGold had no legal or equitable interest in relation to the land by virtue of having lodged applications for exploration licences, its applications were directed to the furtherance of a substantial economic interest that cannot be dismissed as speculative or nebulous. The applications represent steps taken as part of an ongoing exploration activity in the region which encompasses parts of the claim area: [20]. Members of the Yorta Yorta Aboriginal Community v State of Victoria (unreported, Fed Court, 7 June 1996) (Olney J) distinguished. ?