Editors --- "Byron Environment Centre Inc v The Arakwal People & Ors - Case Summary" [1998] AUIndigLawRpr 16; (1998) 3(2) Australian Indigenous Law Reporter 220

Byron Environment Centre Inc v The Arakwal People & Ors

Federal Court of Australia (Black CJ, Lockhart and Merkel JJ)

20 August, 1997

Native Title Act 1993 (Cth) - standing - 'person's interests may be affected' - application of s. 253 definition of 'interests' to s. 68(2)(a).

Facts:

In December 1994, three Arakwal People lodged a Native Title claim, pursuant to s. 13(1) of the Native Title Act 1993 (Cth) ('the NTA'), covering areas of Crown land and coastal waters between Belongil Creek, Byron Bay and Jews Point on the NSW North Coast and including part of Broken Head Nature Reserve.

Native title rights claimed include inter alia, the right to live on the land, travel over the land, hunt, fish, collect food and other items, to make shelters, tools, conduct ceremonies, and to prevent people from entering the land and removing items.

In December 1995, Byron Environment Centre Incorporated sought to become a party to the application. Section 68(2)(a) of the NTA provides that entitlement arises if the 'person's interests may be affected by a determination in relation to the application'. The NTA (s. 69) requires that such a decision be made by a presidential member of the Tribunal. On 22 December, 1995, the Honourable Hal Wootten recommended that the application be refused. In making the decision he applied the definition of 'interest' in s. 253 of the NTA. The applicant was informed and appealed pursuant to s. 169 of the NTA.

Issues:

Did the Tribunal err in applying the s. 253 definition of interest to s. 68(2)(a)? If so, what is the scope of standing provided by s. 68(2)(a)? Can the Tribunal object to an applicant becoming a party, or is that only available to another party to the claim?

Held:

The Tribunal erred in its application of s. 253 to s. 68(2)(a). The interest of a person affected is not restricted to an 'interest in relation to land or waters'. The Tribunal failed to consider the question correctly. Its decision was set aside, and the matter was remitted to the Tribunal to consider the applicant's status on the merits.

Per Black CJ: Comparing the use of 'interest' in s. 68(2)(a) and other sections of the NTA, and citing previous native title cases and High Court standing cases, Black CJ held that the 'interest' must be greater than that of the general public, genuine, and not indirect, remote or lacking substance. The nature and content must be capable of clear definition and must be demonstrably affected by the determination. The 'interest' must be more than one of an emotional, conscientious, ideological or intellectual kind, but there is no requirement that it be proprietary, legal or equitable. 'Interest' will not have the broad meaning usually applied to public law cases, in the context of native title cases.

Per Lockhart J: A narrow interpretation of 'interest' is not sufficient, but the interest must be beyond the level of the ordinary member of the public, not remote or fanciful and must be affected by the native title determination. Justice Lockhart noted that an object of the NTA is a special measure for the advancement of reconciliation, and a narrow interpretation of 'interest' would not achieve that purpose.

Per Merkel J: A person or organisation may be a party if their interest is genuinely, demonstrably and not indirectly affected by a determination. The interest must not be mere speculation and can be defined with reasonable certainty as a matter of fact and law. The nature and extent of the 'interest' will be dependent on the nature of each native title claim. A more expansive view of standing will not promote reconciliation.

Black CJ:

In December 1995 the applicant, Byron Environmental Centre Incorporated ('the Centre'), sought to become a party to an application made by the Arakwal People to the Native Title Registrar under s. 13(1) of the Native Title Act 1993 (Cth) ('the Act') for a determination of native title in respect of land in and around Byron Bay and south to Broken Head. The Centre's request to become a party to the Arakwal People's application was referred to a presidential member of the National Native Title Tribunal ('the Tribunal'), the Hon Hal Wootten QC, who, acting under s. 69(1) of the Act, made a decision rejecting it.

The Centre brings this appeal pursuant to s. 169(3) of the Act which provides:

If a person has applied to the Tribunal to be made a party to an application, and the Tribunal decides that the interests of the person will not be affected by a determination, the person may appeal to the Court, on a question of fact or law, from the decision of the Tribunal.

The Centre contends that the Tribunal was in error in determining, as it evidently did, that the definition of 'interest' in s. 253 of the Act applies to the word 'interests' in the expression 'the person's interests may be affected by determination' in s. 68(2)(a), thus compelling the decision appealed against and the conclusion that the Centre was not a party in relation to the application by the Arakwal People. The seventh respondent, the New South Wales Aboriginal Lands Council, appeared by counsel to support the decision of the Tribunal.

Section 68 of the Act governs who shall be the parties to an application for determination of native title whilst the application is before the Tribunal. The section provides:

Parties

Applicant

68. (1) The applicant is a party in relation to the application.

Other parties

(2) Another person is a party in relation to the application if:

(a) the person is covered by any of subparas 66(2)(a)(i) to (vi) or the person's interests may be affected by a determination in relation to the application; and

(b) the person notifies the Registrar, in writing, within the period specified in the notice under s. 66, that the person wants to be a party in relation to the application.

Section 69(1) provides that if 'it is necessary for the purposes of this Division [ie Division 1 of Part 3] to decide whether the interests of the person may be affected by a determination, that matter is to be decided by the Tribunal. ...'

Section 69(1) goes on to provide that the Tribunal's decision as to whether the interests of a person are affected is conclusive.

Section 253 is a definition section, one of the many contained in Pt 15 of the Act. It contains the following definition with respect to 'interest':

253. Unless the contrary intention appears:

...

'interest', in relation to land or waters, means:

(a) a legal or equitable estate or interest in the land or waters; or

(b) any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with:

(i) the land or waters; or

(ii) an estate or interest in the land or waters; or

(c) a restriction on the use of the land or waters, whether or not annexed to other land or waters.

It will be seen that the word so defined is expressed in the singular and also that the definition is limited in its application by the words 'in relation to land or waters'; it is only in that connection that 'interest' has the meaning given to it by s. 253.

There is an important link between s. 68, dealing with parties before the Tribunal, and s. 84, which defines the parties to proceedings in the Federal Court in relation to applications for the determination of native title that have been lodged with the Federal Court for decision by the Native Title Registrar. The effect of s. 84(1) is that the persons who are parties under s. 68 of the Act remain parties to an application when it comes before the Federal Court for decision. Additionally, s. 84(2) provides that a person may seek leave of the Federal Court to be joined as a party to the Federal Court proceedings 'if the person's interests are affected by the matter or may be affected by a determination in the proceedings'. Given the similarity of the language used, the link between the two sections, and the common subject matter of determining the parties to the application, albeit at different stages, it is clear that 'interests' and 'affected' have the same content in both s. 68 and s. 84 and that the provisions of the Act relating to proceedings before the Tribunal and those relating to proceedings in the Court are equally important parts of the statutory context in which the meaning of 'a person's interests' must be considered. It is also relevant that the same approach to the definition of parties is taken in ss. 167 and 168 of the Act in connection with an application to the Federal Court for a review of a determination made by the Tribunal and registered in the Court under s. 166. Under s. 167(4) an application for review may be made by a party to the inquiry before the Tribunal or 'any other person whose interests are affected by the determination'. Section 168(2) then provides that the parties to a review in the Federal Court are the applicants for review, the persons who were parties to the inquiry before the Tribunal and 'any other person whose interests are affected by the determination and who applies to be made a party'. There is a linkage, via s. 141(1), between these sections and s. 68(2) and it is clear that precisely the same concepts are involved throughout.

Expressions such as 'a person whose interests are affected' are commonly used in modern legislation as tests to determine who is to have a right to challenge administrative decisions as an applicant party or to be directly involved in such a challenge as a joined party: see, for example, Administrative Appeals Tribunal Act 1975, s. 30(1A). Words such as 'interests' and ' affected' when used in connection with standing have, generally, been broadly construed. As Gummow J pointed out in Alphapharm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd [1994] FCA 996; (1994) 49 FCR 250 at 272:

The day is long gone when there was any general presumption that in such statutes the 'interests' concerned must be proprietary or even legal or equitable in nature, or that the affectation be of a nature as understood in private law.

The context in which such expressions are used is, however, all important and in every case the content of both 'interests' and 'affect' has to be seen in the light of the scope and purpose of the particular statute in issue: see Alphapharm per Gummow J at 272 and Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health [1995] FCA 1060; (1995) 56 FCR 50 per Lockhart J at 64-5 and per Gummow J at 84. This is particularly important when the Native Title Act is being construed: see North Ganalanja Aboriginal Corporation v Queensland [1996] HCA 2; (1996) 185 CLR 595 at 614-15.

One of the main objects of the Act, specified as such in s. 3(c), is 'to establish a mechanism for determining claims to native title' and the mechanism so established places emphasis upon mediation and consensus. Thus, if an application for the determination of native title is accepted under s. 63 and the Tribunal does not make a determination under s. 70 (unopposed applications) or under s. 71 (cases in which the parties reach agreement) the President of the Tribunal must direct the holding of a conference of the parties or their representatives to help in resolving the matter: see s. 72. Provision is made in s. 73 for the Tribunal to make a determination in, or consistent with, the terms of any agreement reached after a mediation conference held pursuant to s. 72. If, no agreement having been reached, the application is then lodged with the Federal Court for decision, the Federal Court may nevertheless direct the holding of a conference of the parties or their representatives to help in resolving any matter that is relevant to the proceedings: s. 78(1). All this is of course consistent with the statement in the preamble of the Act that:

A special procedure needs to be available for the just and proper ascertainment of native title rights of interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character. [Emphasis added]

It is now necessary to consider the role envisaged by the Act for those who are, or become, parties to an application. Having become a party, a person may be vitally involved in the process of determining a native title claim, and the scheme of the Act is such that the opposition of any one party to an agreed determination of native title by the Tribunal will mean that the application must be referred to the Federal Court for judicial decision: see s. 74. In effect, therefore, a person who is a party can veto the determination of a claim by agreement and, it would seem, can continue to do so at every stage so that only a judicial determination can resolve the claim.

Reference to sections of the Act dealing specifically with the rights of parties serves to emphasise the importance of the role all parties may play with respect to an application. For example, s. 142 provides that, subject to provisions concerning privacy and the disclosure of evidence, the Tribunal is bound to ensure that every party is given a reasonable opportunity to present his or her case and to inspect any documents to which the Tribunal proposes to have regard in making a determination in an inquiry under Div 5 and to make submissions in relation to those documents. Moreover, for these purposes, there are no different classes of party with different rights attaching to them according to the nature of the interest potentially affected. Thus, for the purposes of proceedings in the Federal Court for the determination of an application for native title, the Act draws no relevant distinction between a person who is a party because he or she is the Commonwealth Minister (see s. 66(2)(a)(ii) and s. 68(2)(a)) and a person who is a member of the general public whose 'interests may be affected by a determination in relation to the application' and who has given timely notification to the Native Title Registrar under s. 68(2)(b). It should be noted too that a person whose 'interests may be affected by a determination' becomes a party as of right if timely notification is made to the Native Title Registrar in accordance with s. 68(2)(b), subject only to any decision of the Tribunal under s. 69(1). There is no discretion to reject as a party a person whose interests may be affected: compare Administrative Appeals Tribunal Act, s. 30(1A).

Against this background, I now turn to consider whether the Tribunal was in error in concluding that 'interests' for the purposes of s. 68(2)(a) are limited to the matters within the definition of 'interest' in s. 253.

Clearly, it was intended that an interest sufficient to give a person the right to become a party to an application for the determination of native title should be greater than that of a member of the general public. The right to become a party is not given to 'any person' or even, as is the case under s. 141(3) concerning inquiries in relation to a special matter, 'any other person' with the leave of the Tribunal. Something more than that possessed by 'any person' is required. Clearly too, the emphasis the Act places upon mediation and consensus and the nature of the rights given to a party point against the widest view of the scope of 'interests' and 'affected'.

I consider, however, that the definition of 'interest' in s. 253 does not apply to the word 'interests' where it is used in connection with parties in ss. 68(2)(a) and 84(1) and in the related provisions of ss. 66(1)(a), 66(2), 68(2), 69(1), 167(4), 168(2)(c) and 169(3). The short answer to the contention that 'interests' should be read in accordance with the definition of 'interest' in s. 253 is that the definition only applies when 'interest' is used 'in relation to land or waters' and, in my view, it is not used in that way in s. 68(2)(a) or in any of the related provisions dealing with parties.

The nature of the rights given by the Act to a party in connection with applications for the determination of native title is certainly relevant to a consideration of where the limits of 'interests' (and 'affected') are to be found, but that does not justify reading 'interests' in s. 68(2)(a), and the other provisions to which I have referred, as being used 'in relation to land or waters', especially when it can be seen that elsewhere in the Act Parliament has chosen to use the expression 'interest in relation to land or waters'. The contrast between this usage in provisions such as ss. 19(2)(b), 21(1)(a), 21(3), 26(2)(d) and 62(1)(b), and the absence of any such usage in s 68(2)(a) and the related provisions dealing with parties, tells against the construction contended for by the New South Wales Aboriginal Lands Council. Justice Olney drew attention to these differences in his ruling in Members of the Yorta Yorta Aboriginal Community v State of Victoria (1996) 1(3) AILR 402 where his Honour said (at 405):

The only reasonable conclusion is that the section was not intended to be restricted to cases in which a person seeking to be joined as a party could establish that that person has an interest in relation to land or waters which may be affected by a determination in the proceedings.

Reliance was placed by the New South Wales Aboriginal Lands Council upon the interaction of certain of the provisions of s. 66(2) and s. 68 in support of the contention that 'interests' in s. 68(2)(a) has the meaning defined by s. 253.

Section 62(1)(b) requires that a native title determination application by a person or persons claiming to hold native title in relation to an area must, amongst other things, contain all information known to the applicant 'about interests in relation to any of the land or waters concerned that are held by persons other than as native title holders'. If such an application is accepted by the Native Title Registrar under s. 63, she must, by reason of s. 66(1)(a), give notice of the application to all persons 'whose interests may be affected' by the determination in relation to the application. The contrast between the language of s. 62(1)(b), with its requirement to provide information about 'interests in relation to any of the land or waters concerned', and the apparently broader requirement to give notice under s. 66(1) to 'all persons whose interests may be affected' is to my mind striking. The point made, however, is that by s. 66(2) the Native Title Registrar is taken to have given notice 'to all persons whose interests may be affected' if she gives notice containing details of the application to various persons or specified classes of person and 'notifies the public' of the application. But I do not consider that

s. 66(2)(a) can be regarded as containing an exhaustive list of the category of 'all persons whose interests may be affected'. Rather, s. 66(2) deems the Native Title Registrar to have given notice to all such persons if she acts in a particular way but not so as to suggest that the class is limited to the persons described in subs. 66(2)(a)(i) to (vi), and certainly not so as to be limited to persons who have an interest in relation to land or waters. To the contrary, it is to be expected that s. 66(2) would make provision for the giving of notice to persons who could be readily identified, such as any person who holds a registered proprietary interest in any of the area covered by the application (s. 66(2)(a)(v)), or any representative Aboriginal/Torres Strait Islander body for any of the area covered by the application (s. 66(2)(vi)) and also for the giving of notice by means of public notification to other persons, not necessarily known to the Native Title Registrar, who may have interests that may be affected.

Counsel for the eighth respondent, the New South Wales Minister for Land and Water Conservation, supported the Centre's argument that the Tribunal applied the wrong test in requiring that the Centre have an interest as defined by

s. 253 in order to be made a party under s. 68(2). He submitted however that the fact that the wrong test was applied did not dispose of the appeal since, he contended, the conclusion that the Centre was not a person whose interests may be affected was correct for another reason, namely that any affectation asserted by the Centre was merely of an emotional, conscientious or intellectual kind and, as such, insufficient for the purposes of s. 68(2).

I have already noted that the interests affected must be greater than those of a member of the general public. They must also be genuine and the affectation must be genuine, for the Parliament cannot have contemplated that the rights given to persons as parties would have other than a genuine foundation. Just as the Tribunal may, under s. 147 of the Act, dismiss an application if it is satisfied that the application is frivolous or vexatious, so too an interest that is not genuine will not found an application to be a party.

The 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.

There is, however, no reason to conclude from the subject matter, scope and purpose of the Act that the interests need be proprietary or even legal or equitable in nature. Whilst 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 to 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.

It does not follow, however, that the objects of the Act would be advanced if s. 68(2)(a) and related provisions concerning parties were interpreted as extending to interests and affectations of an emotional, conscientious, ideological or intellectual kind only.

In the context of standing the Courts have not construed expressions such as 'interest' as extending to concerns solely of an emotional, conscientious, ideological or intellectual nature. Thus in Right to Life Association, Lockhart J observed (at 68):

Wide and liberal though the laws of standing should be, the courts of this country have drawn the line of demarcation between an open system and the requirement of some form of interest in the subject matter of the proceeding other than a mere emotional attachment or intellectual pursuit or satisfaction. The precise ambit and content of this interest is in a state of flux, as Sackville J noted in North Coast Environment Council Inc v Minister for Resources [1994] FCA 1556; (1994) 55 FCR 492 at 502.

Although the leading cases in the High Court, Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 and Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27, involved questions of standing in a context different from the present, the statements in the judgments in those cases, and in cases in this Court, to the effect that a requirement for a special interest is not satisfied by something that is no more than an emotional or intellectual concern, have a bearing upon the present question in two ways.

First, although the particular language and the scope and purpose of the Act in question are undoubtedly all important, the Court should at least be very cautious in concluding that the familiar expressions of 'interest' and 'affected' are to have a wider meaning in circumstances such as the present than has ever been given to them in cases concerning standing in the context of judicial or administrative review. This is particularly so when some of the reasons that favour a liberal view of standing in public law cases do not apply to the determination of native title.

Secondly, the limitations on the content of a 'special interest' in the context of standing are at least influenced by the circumstance that if beliefs or concerns were, without more, sufficient to give their possessors standing, the rule requiring a 'special interest' would be meaningless: see Australian Conservation Foundation Inc per Gibbs J at 530-531, per Stephen J at 540 and per Mason J at 547-549 and see also Onus v Alcoa of Australia Ltd per Gibbs CJ at 37, per Stephen J at 41-42, per Aickin J at 53 and per Brennan J at 74. Where Parliament, by giving rights of an important character to those whose 'interests are affected' rather than to 'any person', has revealed an intention to require an interest greater than that of any member of the general public, it is unlikely that it intended to extend the notion of 'interests' to something that any member of the public could assert, so as to deny significant practical effect to the requirement that a person have an interest greater than that of any ordinary member of the public. So too with affectation.

Moreover, when due consideration is given to the nature and content of the right to become a party to a native title application, there is good reason to conclude that the intended outer limits of the notions of 'interests' and 'affected' with which s. 68(2)(a) and related provisions are concerned fall short of giving a right to be parties to those whose 'interests' are defined only by their emotional, intellectual, ideological or conscientious concerns. If the Parliament had intended to give to any person who felt strongly about the matter a right to be a party, with the consequences that entails, it would not have used the language of 'interests affected', as it has in s. 68(2)(a) and comparable sections. Rather it would have used language such as appears in s. 141(3) of the Act which allows 'any other person' to become a party, with leave. Of course, an interest sufficient for the purposes of s. 68(2)(a) may well be accompanied by an emotional or intellectual concern and none of this is to say that such concerns are in any way disqualifying, but they are not in themselves sufficient: see Onus v Alcoa of Australia Ltd per Gibbs CJ at 37 and per Stephen J at 41-42.

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. As Gibbs J said in Australian Conservation Foundation Inc at 531 (footnotes omitted):

A natural person does not acquire standing simply by reason of the fact that he holds certain beliefs and wishes to translate them into action, and a body corporate formed to advance the same beliefs is in no stronger position. If it is the fact that some members of the Foundation have a special interest - and it is most unlikely that any would have a special interest to challenge the exchange control transaction - it would not follow that the Foundation has locus standi, for a corporation does not acquire standing because some of its members possess it: see Victorian Chamber of Manufactures v The Commonwealth ('Prices Regulations'); Real Estate Institute of NSW v Blair; British Medical Association v The Commonwealth.

In the same case, Stephen J said (at 539):

An individual does not suffer such damage as gives rise to standing to sue merely because he voices a particular concern and regards the actions of another as injurious to the object of that concern. That it is a body corporate rather than an individual which seeks to do so cannot of itself alter that position; the fact that that body corporate has as its main object the voicing, and encouragement in the community, of just such a concern no doubt ensures that what it does to give effect to such an object will not be ultra vires; it will not otherwise improve its position.

See also Right to Life Association per Lockhart J at 253 and per Beaumont J at 265-6.

Also, 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.

This 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.

I should mention at this point a second ground of appeal relied upon by the Centre. It submitted that since no party had challenged its entitlement to be a party to the proceedings, it never became 'necessary for the purposes of [Div 1 Pt 3 of the Act]' to decide whether the Centre's interests might be affected by a determination; accordingly the Tribunal was not empowered by s. 69(1) to deny that the appellant was a party.

This ground must be rejected. There is no reason to conclude that only another party can raise a question concerning the status of a person claiming to be within s. 68(2) and thus a party in relation to an application. If a serious question arises as to whether the interests of a person may be affected by a determination, it is obviously important that it be determined so that only those who are entitled to be parties are accorded that status and the rights that attach to it. The question is one of general importance to the conduct of proceedings in the manner contemplated by the Act and it would be very surprising if it could only be raised by another party, especially when Division 1 provides no specific mechanism for such an objection to be raised. Indeed, if there is a problem about entitlement to be a party, it may well be something that comes to the notice of the Native Title Registrar upon notification pursuant to s. 68(2)(b) and it cannot have been intended that, in such circumstances, that the Registrar, or any of the Tribunal's officers, would be powerless to have the matter resolved in the absence of some objection by a party. Section 69(1) commits to the Tribunal, constituted for that purpose by a presidential member, the function of deciding whether the interests of a person may be affected, and in my view it may become 'necessary for the purposes of [Div 1 of Pt 3]' to decide that question if, as here, one of the Tribunal's officers has reason to raise it.

It remains now to consider what the outcome of the appeal should be. It follows from my earlier conclusions that the Tribunal did not approach in the correct way the question whether the Centre was a person whose interests may be affected by a determination in relation to the application of the Arakwal People. The view taken by the Tribunal that the definition of interest in s. 253 applied to s. 68(2)(a) meant that true question was not considered. On the other hand, there is certainly force in the submission that, on the material relied upon by the Centre, it was not a person whose 'interests may be affected' within the broader meaning that I would give to that expression.

In my view, however, the appropriate outcome is for the decision of the Tribunal to be set aside and the matter remitted to the Tribunal to determine the question of the Centre's standing pursuant to ss. 68 and 69 of the Act. The Act contemplates that the Tribunal will consider the question of the Centre's status on the merits and because of the view the Tribunal took it did not do so. If the Court were to decide the matter for itself there would have been no proper consideration by the Tribunal of a question that depends very much on the facts and circumstances of each case. Moreover, as Merkel J points out in his reasons for judgment, there has been doubt about the correct approach to the questions we have had to consider in this appeal. It may be that the Centre would wish to place further material before the Tribunal and it should have an opportunity of doing so.

I agree with the orders for costs proposed by Lockhart J.

Lockhart J:

...

The relevant native title application was lodged, pursuant to s. 13(1) of the Native Title Act 1993 ('the Act'), on 21 December, 1994 (on one view of the evidence the date of lodgement was 22 December; but nothing turns on this) by three people claiming to hold native title with other members of the Arakwal people to the claimed land.

...

The minute from the Case Manager to Mr Wootten, so far as material, reads as follows:

This is a request to you as a Presidential Member of the National Native Title Tribunal, under s. 69(1) of the Native Title Act 1993, to decide whether the interests of a person may be affected by a determination.

The Byron Environment Centre has applied to be a party to the claimant application by the Arakwal people for Crown land and waters in and around Byron Bay on the north coast of NSW (reference number NC95/1). A copy of the application to be a party is attached.

In that application the Incorporated association asserts that it has been actively involved in campaigns to conserve and protect the lands and waters in and around Byron Bay. They have environmental concerns in relation to species diversity, ecological sustainability etc.

They seek participation in the negotiation process to maintain the integrity of the land under claim.

I draw your attention to para. 9.3 of the Tribunal's procedures revised 8 September 1995 and specifically that the procedure provides that the Presidential Member may invite a submission from the applicant to be a party and sets out a timeframe for the decision to be made.

There is nothing in the application to be a party that shows the Byron Environment Centre Inc. has an interest as defined by s. 253 of the Native Title Act 1993 ie; a legal or equitable estate, a right, charge, power or privilege over or in connection with the land or a restriction on the use of the land in question. On that basis I would recommend non-acceptance of their application.

At the foot of the memorandum a note dated 22 December, 1995 and signed by Mr Wootten appears in these terms:

... the Byron Bay Environment Centre does not have interests that may be affected within the meaning of the Native Title Act.

J.H. Wootten

...

The argument before us centred on the question whether the word 'interests' in s. 68(2)(a) of the Act bears the same meaning as it does in s. 253 (one of the definition sections) where 'interest' is defined in the following terms:

'interest', in relation to land or waters, means:

(a) a legal or equitable estate or interest in the land or waters; or

(b) any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with:

(i) the land or waters; or

(ii) an estate or interest in the land or waters; or

(c) a restriction on the use of the land or waters, whether or not annexed to other land or waters;

The presidential member appears to have taken the view that the words 'the person's interests' in s. 68(2)(a) were restricted to 'interests' as defined by s. 253.

Importantly, the definition of 'interest' in s. 253 is expressed to be 'in relation to land or waters'. The definition that follows is in wide terms; in particular where it refers in para. (b) to any other right (ie other than a legal or equitable estate or interest in the land or waters), including a right under an option and a right of redemption; and a charge, power or privilege over, or in connection with the land or waters or an estate or interest in the land or waters; or a restriction on the use of the land or waters, whether or not annexed to other land or waters. The words 'over' and 'in connection with' are words of wide import. Nevertheless, in my opinion, the word 'interest' in s. 253 is used throughout the definition to convey some form of proprietary or contractual right, power or privilege concerning the land or waters.

In the matter of an application for a native title determination by the Gunai people (Application No VC95/1, unreported) French J, President of the Tribunal, said at p. 5:

It is questionable, although arguable, whether the recreational use of land by a member of the public who has no legal interest in it constitutes the exercise of a right of free access within the meaning of the definition in s. 253.

I agree with this statement by his Honour; but prefer to leave the question of the ultimate scope of the definition of 'interest' in relation to land or waters in s. 253(b) to be decided in another case. I have in mind, for example (there are many examples), a person who frequently walks through Crown land to the beach and has done so, like many others, for a considerable number of years; but has no legal or equitable right (at any rate no expressly granted right) to do so.

A perusal of the Act demonstrates that where the Parliament has intended the word 'interest' to be used in relation to 'land or waters' it has said so in terms. This therefore calls for caution in assuming that the word 'interest' where appearing in s. 68(2)(a) bears the meaning attributed to it in s. 253.

A number of sections of the Act specifically refer to the expression 'interest in relation to land or waters': ss. 14(2)(b), 19(2)(b), 25(1), 26(2)(d), 62(1)(b), 108(3)(a), 225(b)(iv), 226(2)(c), 228(4)(c) and 228(6)(a) and (b).

Some sections, namely, ss. 66(1)(a), 66(2), 68(2)(a), 69(1), 167(4), 168(2)(c) and 169(3), refer to a person's interests, broadly in the context of standing concerning native title rights and interests, but not in conjunction with the phrase 'in relation to land or waters'.

Other sections refer to 'interest' or 'interests' in different contexts: for example; s. 13(5)(b) 'the interests of justice' and s. 39(1)(e) 'any public interest'.

...

A determination of native title may include a determination about whether native title rights and interests confer possession, occupation and use and enjoyment of the land or waters on its holders to the exclusion of everybody else

(s. 225(b)(ii)). Thus a wide range of persons may be affected by the determination especially if exclusive rights are conferred upon the successful claimants for native title.

Rights and interests of native title holders are quite different from proprietary rights and interests recognized at common law and equity. Indeed, many rights and interests of native title holders are not proprietary at all.

Brennan J described native title in Mabo v Queensland (No. 2) [1992] HCA 23; (1992) 175 CLR 1 at 61 in these terms:

Secondly, native title, being recognized by the common law (though not as a common law tenure), may be protected by such legal or equitable remedies as are appropriate to the particular rights and interests established by the evidence, whether proprietary or personal or usufructuary in nature and whether possessed by a community, a group or an individual. The incidents of a particular native title relating to inheritance, the transmission or acquisition of rights and interests on death or marriage, the transfer of rights and interests in land and the grouping of persons to possess rights and interests in land are matters to be determined by the laws and customs of the indigenous inhabitants, provided those laws and customs are not so repugnant to natural justice, equity and good conscience that judicial sanctions under the new regime must be withheld.

See also the analysis of common law native title by Deane and Gaudron JJ at 86-95.

When enacting the Act (including ss. 66 and 68) the Parliament recognised that a determination of native title may involve recognition of native title rights or interests which are personal and not proprietary; and yet be likely to affect interests of persons, other than the native title holder.

Native title to land, its incidents and the persons entitled thereto, are ascertained according to the laws and customs of the indigenous people who, by those laws and customs, have a connection with the land.

Native title has its origins in and is given its content by the traditional laws acknowledged by, and the traditional customs observed by, the indigenous inhabitants of the territory. It may not be alienated under the common law: Pareroultja v Tickner [1993] FCA 465; (1993) 42 FCR 32 per Lockhart J at 39.

The objects of the Act include the achievement of what is described as reconciliation between Aboriginal and non-Aboriginal Australians.

The preamble to the Act states:

A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by reconciliation, and, if not, in a manner that has due regard to their unique character.

Also, in the final paragraph of the preamble the following appears:

The law, together with initiatives announced at the time of its introduction and others agreed on by the Parliament from time to time, is intended ... to be a special measure for the advancement and protection of Aboriginal peoples and Torres Strait Islanders, and is intended to further advance the process of reconciliation among all Australians.

Various provisions of the Act are designed to achieve reconciliation through mediation processes: for example, s. 72.

Also, as a native title application proceeds through the Tribunal and its processes of mediation with a view to encouraging discussion between the claimants and interested persons, it is natural that widely framed claims may be honed down to what the applicants really want. Persons who may not have a right or interest in the land in a proprietary sense, but nevertheless have an interest in a broader sense, will be entitled to have a say in the matter and be able to negotiate some arrangement to accommodate their interests if they are parties to the application, which is the question arising in this case.

To shut people out from participating in a claim because they do not have a proprietary interest in the land or waters could operate to create ill feelings and achieve antagonism, not reconciliation.

This question of determining whether a person is one whose 'interests may be affected by determination in relation to the application' within the meaning of s. 68(2)(a) has been considered before.

In Members of the Yorta Yorta Aboriginal Community v The State of Victoria (1996) 1(3) AILR 402 Olney J heard an application for determination of native title under the Act. A mediation conference was held pursuant to s. 72 of the Act; but it failed, so the matter came before this Court pursuant to s. 84(2) of the Act which permits a person to seek leave of the Court to be joined as a party to the proceedings 'if the person's interests are affected by the matter or may be affected by a determination in the proceeding'. His Honour held that despite the slight difference in form between s. 84(2) and 68(2)(a) the same question of construction was raised. His Honour concluded that the definition of 'interest' in s. 253 did not govern the definition of the expression 'the person's interests may be affected' by a determination in relation to the application under s. 68(2); and that a person does not have to establish an interest in relation to land or waters as defined in s. 253 in order to be granted leave to be joined as a party pursuant to s. 84(2) (a fortiori therefore on his Honour's reasoning process, s. 68(2)). His Honour reached his conclusion after considering the following matters:

First, the fact that s. 84(2) made no reference to an interest in relation to land or waters; but specifically identified the relevant interests as those of the person concerned without any qualification. He referred, as I have done, to sections in the Act where the Parliament has chosen to use the term 'interests in relation to land or waters'.

Secondly, determination of native title may include a determination as to whether the native title rights and interests confer rights concerning the use and enjoyment of the land or waters to the exclusion of other people. Olney J said at 405:

A person may habitually use and/or enjoy land or waters without necessarily having any right or title to do so (eg by the mere acquiescence or licence of the titleholder) but could be prevented from so doing should it be determined that the native title holders are entitled to the use and enjoyment of the land or waters to the exclusion of all others. As a matter of ordinary language, it can readily be said that the interests of an habitual user of land or waters may be affected if the native title holders insist on exercising exclusive use or enjoyment of the land or waters. This reasoning leads to the conclusion that the legislative intention expressed in subs. 84(2) is consistent with the literal meaning of the words used.

It will be a question of fact in each case whether or not a person's interests may be affected by a determination of native title.

Although his Honour was considering the question whether a person may seek leave of the Federal Court to be joined as a party to proceedings before that Court if the person's interests are affected by the matter or may be affected by a determination in the proceedings under s. 84(2), he found that the same considerations govern s. 84(2) and s. 68(2).

In the application involving the Gunai people before French J, to which reference was made earlier, the question of the construction of s. 68(2)(a) was squarely raised. I have already cited the passage from p. 5 of French J's reasons. His Honour went on to say at p. 6 of his reasons:

Although I have hitherto taken the same general view as Gray J that the right of a person to be a party depends upon possession of an interest within the meaning of s. 253, I am persuaded by the reasoning of Olney J that it is not necessarily so limited but depends upon a broader concept of interest consistent with general rules of standing to be a party in proceedings in the Federal Court.

There is no relevant distinction between the provisions of s. 84 and the second limb of s. 68(2)(a) of the Act. It would be remarkable if there were. For if there were, persons could be refused recognition as parties to an application pending in the Tribunal, but accorded recognition after the matter had been referred to the Federal Court.

Gray J sitting as a presidential member of the Tribunal in the Yorta Yorta matter had declined to recognize the Victorian Field and Game Association as a party for the purposes of s. 68. The matter came before his Honour because of the mediation conference required by s. 72 of the Act. The Victorian Field and Game Association applied to be joined as parties to the mediation. Gray J rejected the Association's application to be accepted as a party to the mediation on the basis that it was not a party whose interests were affected by the determination; and his Honour applied the definition in s. 253.

I agree with French J and Olney J about the relation between ss. 68(2)(a) and 84 of the Act. In my opinion their Honours correctly concluded that a person may be joined as a party to a proceeding in the Federal Court under s. 84(2) and as a party to the app-lication for native title under s. 68(2)(a) if that person does not have an interest in relation to land or waters as defined in s. 253.

The persons and organizations who sought to be parties in the Gunai application before French J included a resident of Lake Tyers Beach:

who frequently enjoys walking along the beaches, swimming and fishing in the waters off the Ninety Mile Beach and also in Lake Tyers and its various creeks and inlets. He is concerned that if the claim succeeds it will restrict the free and unrestricted access which he presently enjoys.

Also included were the Lake Tyers Beach Sports and Angling Club which comprises:

over 65 members who use the waters and surrounding areas of Lake Tyers daily for recreational fishing. Other members use waterways and surrounding areas for other recreational purposes including water skiing, canoeing, swimming, hunting and sailing. All of these activities are presently enjoyed without cost or restriction.

French J determined that each of the persons and organizations seeking the status of parties were entitled to it.

Although Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493 involved a different statutory regime to the determination of native title claims under the Act, the observations of the High Court are helpful in this case. Gibbs J said at 530-531:

I would not deny that a person might have a special interest in the preservation of a particular environment. However, an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it.

Stephen J at 539 and Mason J at 548 adopted basically the same approach. See also Onus v Alcoa of Australia Limited [1981] HCA 50; (1981) 149 CLR 27; Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health [1995] FCA 1060; (1995) 56 FCR 50 per Lockhart J at 63-69, Beaumont J at 80-83 and Gummow J at 83-85.

It is well established that determinations of questions of standing in public interest proceedings should not be approached in a rigid or inflexible manner. Expressions such as persons whose 'interests may be affected' or persons 'interested' or persons 'aggrieved' or like words derive their meaning and take their colour from the context in which they appear and in the light of the particular statute concerned. Australian courts have shown an increasing tendency, though not always consistent, to construe expressions of this kind liberally: Right to Life Association (NSW) Inc at 64-65.

These principles are applicable to questions of standing in public interest proceedings, and though not directly in point when questions of standing arise in proceedings under the Act, nevertheless provide a useful guide.

The meaning of the expression with which this case is concerned ('the person's interests may be affected by a determination in relation to the application') is not encased in technical rules. No narrow construction of the expression that a person is a party in relation to a native title application if 'the person's interests may be affected' by a determination in relation to the application is called for. Doubtless a person who has an interest in the sense defined by s. 253, that is a form of proprietary interest or interest derived from contract, will be entitled to be an applicant under s. 68(2)(a). But, the class of persons is wider than that. It is, I think, impossible and unwise to attempt to define that class in any definitive sense; it will depend on the facts and circumstances of each case. However, the person's interest must not be remote, indirect or fanciful. The interest must be above that of an ordinary member of the public, and must be not that of a mere intermeddler or busybody. The person must have some interest that may be affected by the native title determination. The persons who sought the status of parties before French J in the Gunai application provide a good example of persons with a relevant interest for the purposes of s. 68(2)(a). If it be said that this is too broad an analysis and that the floodgates will open, then I must say that over the past eighteen years on the Bench of this Court I have never seen the floodgates open in any matter, despite dire predictions to the contrary.

In my opinion, a person need not have an interest in the sense envisaged by s. 253 to come within the definition of a person whose interest may be affected by the native title determination under s. 68(2)(a); the latter is a broader consideration.

Reliance was placed by counsel for the New South Wales Aboriginal Land Council (the seventh respondent) upon the terms of ss. 62 and 66 in aid of the contention that the applicant lacked standing in this matter and that the definition of 'interest' in s. 253 applied.

...

Subsection (2) of s. 66 is a deeming provision which provides that the Registrar is taken to have given notice to all persons whose interest may be affected by a determination in relation to the application if the Registrar does two things. First, he must give notice containing details of the application to the persons mentioned in paras. (i) to (vi) (which I recited earlier); secondly, he must 'notify the public in the determined way' of the application, an expression defined by s. 252(1) as meaning giving notice in the way determined by the Minister. Subsection (2) of s. 252 provides examples of the ways in which notice may be given, including notice in newspapers or by radio broadcasts or television transmissions.

These sections do not assist the seventh respondent's argument. Notice of the application must be given to a broader class than those persons specified in para. (a) of s. 66(2). The public will be notified of the application through publication in the media. In due course persons who have an interest and wish to be involved in the application will be able to do so.

In my opinion the Tribunal erred in concluding that the question whether the applicant has a sufficient interest to become a party to the proceeding before the Tribunal is governed by the definition of 'interest' in s. 253.

It is not necessary for the second ground of appeal to be determined, namely, whether the Deputy President was empowered to deny the status of a party to the applicant when no party to the proceeding had objected to the applicant's entitlement to become a party. However, the point may be disposed of briefly. Section 69(1) of the Act (previously mentioned) vests in the Tribunal the power to decide whether the interests of a person may be affected by a determination and therefore whether that person is entitled to be a party in relation to the application under s. 68(2)(a). Further, the decision of the Tribunal that the interests of a person may be affected is conclusive (s. 69(1)). It is for the Tribunal to decide these matters. If a party in relation to the application for native title challenges the status of a person who seeks to become a party, the Tribunal's consideration of that question will be enlivened. But it is not a condition precedent to the exercise by the Tribunal of its power to decide whether a person has interests which may be affected by the determination that a party raises the point. The Act squarely places the responsibility upon the Tribunal to decide whether or not a person is a party to the application.

The remaining question is whether the applicant has 'interests that may be affected by the determination in relation to the application'. That is the language of s. 68(2).

I do not think it is for this Court to decide the question. The Tribunal approached the question of the applicant's interests for the purposes of s. 68(2)(a) on the basis it was governed by the definition of 'interest' in s. 253. The Tribunal erred in this approach and a wider approach of the kind I have discussed is called for. In view of the approach which the Tribunal adopted, it did not consider the question of the applicant's status on the merits.

As mentioned earlier, s. 69(1) of the Act entrusts to the Tribunal the task of deciding whether the interests of the applicant may be affected by a determination in this matter. If the Tribunal decides that the interests of the applicant may be affected, the decision of the Tribunal is 'conclusive'. Cf Achilleos v Housing Commission [1960] VicRp 26; [1960] VR 164, and Komesoroff v Law Institute of Victoria [1992] 2 VR 259. See Professor Enid Campbell, 'Revocation and Variation of Administrative Decisions' [1996] MonashULawRw 2; 22 Monash University Law Review 30 at 56-7.

In my opinion it is for the Tribunal to decide the question of status of the applicant as a party in relation to the application.

Accordingly, I would remit the matter to the Tribunal to determine the question whether the applicant has 'interests which may be affected by a determination in relation to the application' for the purposes of ss. 68 and 69 of the Act.

However, as the question of the applicant's standing was fully argued before us, and the facts relevant to this question at this stage of the matter are before us, I shall summarize them for the benefit of the Tribunal, though mindful of the fact that the decision of the applicant's standing is for the Tribunal to decide on the material then before it.

...

On the question of costs, the seventh respondent opposed the respondent's appeal on all issues; the eighth respondent, the Minister for Land and Water Conservation of New South Wales, supported the applicant in its case concerning the construction of s. 68; but argued that the applicant was not a body which had a sufficient interest to support its status as a party to the native title application.

Once the Tribunal had rejected the applicant's application to be a party, the applicant was obliged to appeal to the Court if it wished to pursue the matter. It was necessary that the applicant satisfy the Court that the Tribunal erred to lay the foundation for its claim that it was entitled to be a party to the native title application, and thereby it incurred costs and expenses of this proceeding accordingly. The opposition of the seventh respondent and partial opposition of the eighth respondent would not in my view have added greatly to the costs and expenses of the applicant. The fair order for costs is that the seventh respondent pay one-third of the applicant's costs of the appeal, and that otherwise there be no order for costs.

Merkel J:

Introduction

The Native Title Act 1993 (Cth) ('the Act') provides for the legislative recognition and protection of the form of native title recognised as existing and enforceable as a common law right in Australia by the decision of the High Court in Mabo v The State of Queensland (No. 2) [1992] HCA 23; (1992) 175 CLR 1. The Act is a code for the protection of native title by removing its vulnerability to defeasance at common law: see ss. 3(a), 11(1) and Western Australia v The Commonwealth [1995] HCA 47; (1995) 183 CLR 373 at 453. Under the Act a mechanism is established for determining claims to native title by providing for negotiation and agreement and failing agreement, judicial determination of native title claims.

In the course of discussing the legislative preference for resolving native title claims by negotiation in North Ganalanja Aboriginal Corporation v Queensland [1996] HCA 2; (1996) 185 CLR 595 Brennan CJ, Dawson, Toohey, Gaudron and Gummow JJ said at 613-4:

It was inevitable that the recognition of native title by the common law and its protection by the Racial Discrimination Act 1977 would generate novel legal problems relating to the title to land claimed by Aborigines in accordance with traditional laws and customs. The Act addressed some of these problems. Although a claim to native title as defined in Mabo [No. 2] was justiciable, the issues of fact raised by such a claim were complex and, in the event of opposition, would be likely to take significant time and resources (including judicial resources) to determine.

and at 617:

If it be practicable to resolve an application for determination of native title by negotiation and agreement rather than by the judicial determination of complex issues, the Court and the likely parties to the litigation are saved a great deal in time and resources. Perhaps more importantly, if the persons interested in the determination of those issues negotiate and reach an agreement, they are enabled thereby to establish an amicable relationship between future neighbouring occupiers.

The persons 'interested' in the determination of a claim for native title are those whose interests may be affected by the determination. The Act provides for such persons to participate as parties in:

• the negotiation of the claim in the National Native Title Tribunal ('the NNTT');
• any judicial determination of the claim in the Federal Court.

This appeal, which arises out of a claim by the Arakwal People for native title to certain land and waters in the Byron Bay district in New South Wales, raises an important question as to the nature and extent of the interest required to entitle a person to participate as a party in the negotiation and determination of a claim to native title under the Act.

The Appeal

The Byron Environment Centre Incorporated ('the Centre') has appealed to the Court under s. 169(3) of the Act from a decision of the NNTT refusing the request of the Centre, under s. 68(2) of the Act, to be a party in relation to the application of the Arakwal People for a determination of native title.

The application was lodged pursuant to s. 61(1) of the Act on 22 December 1994. It was accepted by the NNTT, under s. 63 of the Act, on 20 September 1995. In the register of the NNTT the claim is recorded as relating to:

Various areas of Crown Land, beaches and coastal waters between Belongil Creek at Byron Bay and Jews Point on the North Coast of NSW including part of Broken Head Nature Reserve.

The native title rights and interest claimed are recorded as:

The right to live on the land and travel over the land. The right to hunt and fish on or from the land, sea and inland waters, and to collect food from the land and waters. The right to take items from the land and sea and waters such as timber, stones, resins, shells, and to make such things as shelter, tools and hunting implements. The right to conduct ceremonies on the land, sea and waters and the right to prevent other people from entering the land, sea and waters and from removing any items from these areas. Subject to any rights or interests created by the State of New South Wales and/or the Commonwealth of Australia not inconsistent with the Native Title Act 1993 or the Racial Discrimination Act 1975.

The claim of the right to prevent other people from entering the land, sea and waters covered by the claim and from removing any items from those areas, which include a number of beaches and fishing waters regularly used by the public, is significant. If successful, the claim is one which is likely to affect, directly and indirectly, a large number and variety of individuals, organisations and businesses.

The request of the Centre to be a party was refused on the ground that the interests of the Centre will not be affected by the determination sought, as it did not have an 'interest' in relation to any of the land or waters covered by the claim, as defined in s. 253 of the Act.

The appeal, which is on questions of both fact and law, was referred for hearing by a Full Court.

...

Essentially, the appeal raises two questions:

(a) Is the class of persons entitled to be a party under s. 68(2)(a), being those whose 'interests' may be affected by a determination in relation to an application for native title, limited to persons who have an 'interest', as defined in s. 253, in relation to the land and waters the subject of the application?

(b) If the answer to the first question is 'no' then how is the nature and extent of the interest required by s. 68(2)(a) to be defined?

The Byron Environment Centre

...

The Centre's membership is made up of approximately 100 persons or entities within the Byron Shire in New South Wales who or which have a common concern about environmental and social justice issues.

The Centre has been primarily concerned with environmental and ecological issues in the Byron Bay district. It has had its nominees appointed to various local government committees involved with land management. The committees include the North Coast Environmental Council and the Cape Byron Consultative Steering Committee convened by the National Parks & Wildlife Service to determine appropriate land management policy in respect of the proposed national park and nature reserve for the area between Cape Byron and Broken Head in New South Wales. The Centre is also a member of the subcommittee considering a proposal for a joint cultural and environmental centre to be established with the co-operation of the Arakwal Aboriginal Corporation. The evidence adduced by the Centre demonstrates that it has supported Aboriginal land rights and culture in the local area and, in particular, the claim of the Arakwal People for native title.

The evidence does not establish that the Centre conducts any specific activities in the area covered by the claim for native title or that the activities or programs that it does conduct from time to time might be curtailed, interfered with or otherwise affected by a determination of native title.

The Centre's request that it be a party in relation to the claim was made by letter to the NNTT on 4 December, 1995. The letter stated:

Byron Environment Centre wishes to become a party to claim for the following reasons.

Since our inception in 1989 we have worked as a community volunteer non-profit organisation and involve no private interests. Recognising the vulnerability of the coastal area in which we live, BEC members have fought for protection of lands and waters at Taylors Lakes, Tallow Cree, Belongil, Broken Head Cibum Margil Swamp, Suffolk Park, the West Byron Sewerage Plant, Cavanbah sand dunes, and Sandhills Estate. We have opposed launching ramps and the skimming of dunal areas to protect the Shine's beaches. At the Cape Byron Reserve, BEC members have worked with the Cape Byron Trust on a generation scheme devising weed management plans.

Our concerns are species diversity, ecological sustainability, managed access to beaches and recreational areas, fire control and the control of noxious weeds, irrespective of with whom the responsibility of management lies. It has been necessary within our work practice to challenge and negotiate with Federal, State and Local Government instrumentalities from whom we have won respect. We are now accepted and frequently consulted and invited by them to participate in steering committees, community consultations and inquiries.

The Byron Environment Centre therefore seeks participation in the negotiation process to maintain the integrity of the land under claim.

...

The Submissions

The Centre submitted that:

• it was consistent with the scope and purpose of the Act for a broad view to be taken of the 'interests' that may be affected by a determination for the purposes of s. 68(2)(a);
• as it had a real, genuine, direct and active interest in the conservation and ecology of the area covered by the claim, its 'interests' were affected;
• accordingly, it was a person whose 'interests may be affected by a determination' in relation to them application of the Arakwal People and was entitled to be a party in the matter in the NNTT.

Only the seventh and eighth respondents sought to be heard on the appeal. The seventh respondent ('The NSW Aboriginal Lands Council') submitted that the broad view of s. 68(2)(a) and the Act proposed by the appellant would substantially undermine the efficacy of the statutory negotiation and mediation process. It contended that persons with varied and general interests unrelated to any 'interest' in the land or waters claimed were not entitled to be parties to, and therefore capable of defeating, that process. It submitted that the tribunal correctly decided that the interest required by a person to become a party in a matter before the NNTT is an interest in relation to land or waters as defined in s. 253 of the Act.

The eighth respondent ('the NSW Minister') submitted that the interest required by s. 68(2)(a) is not limited to an 'interest' in relation to land or waters as defined in s. 253. The Minister contended that in each case the Court must examine how the person applying to be a party may be affected by the determination of native title sought by the claimants and determine whether the interest asserted is sufficiently proximate for a joinder order to be made, having regard to the scope and purpose of the Act. On the basis of that test it was submitted that the interest of the Centre, being merely of an 'emotional, conscientious or intellectual kind', is not sufficiently proximate, direct or tangible to warrant joinder.

...

The general legislative intention in respect of the provisions as to parties is clear. A native title determination, in any particular case, might affect different persons and their interests in a multiplicity of ways. Consequently, the legislature has ensured that all persons whose interests may be affected by a determination are entitled to be parties to the application and thereby be afforded the opportunity to be heard in relation to it before it is finally determined by the Court. The right of veto of any party in the NNTT is, in many respects, a substantive right. However, it gives effect to the legislative intention that there be no final determination of native title against persons whose interests may be or are affected by the determination sought, without those persons having been afforded the opportunity of being heard in the NNTT or the Court: see ss. 66(1)(a), 66(2)(b), 66(3)(b), 68, 69, 70, 71, 72, 73, 74, 84, 166, 167, 168 and 169. In that context it is appropriate to consider the principles which have been applied in determining the entitlement of persons whose interests may be affected by a decision to become parties in a matter.

...

The Centre relied on decisions as to standing in the administrative and judicial review cases, such as North Coast Environment Council Inc, to demonstrate the width of the words 'a person whose interests may be affected by a decision'. However, as was pointed out by Davies and Gummow JJ in Alphapharm, the content of the terms 'affect' and 'interest' in any particular case must be determined in the light of the subject matter, scope and purpose of the particular statutory provisions in question.

In that regard three particular features of the Act are significant. The first relates to its subject matter. Native title is a private property right and interest arising under the common law which is recognised and protected by the Act. A determination of the existence of native title does not directly or indirectly touch upon enforcement of public duties or protection from violation of public rights.

The second feature relates to the scope and purpose of the right of a person, who may be affected by a determination, to be a party to the application in the NNTT and the Court. The right is not a mere entitlement to administrative or judicial review of a native title determination. It is a substantive right to become a party in the matter. That entitlement enables full participation as a party in the NNTT and the Court with a right to veto or prevent a determination of native title being made in the NNTT, rather than the Court. The right is conferred on every person having the requisite interest irrespective of the nature of the particular interest or the fact that it may relate only to part of the area covered by the claim.

The third feature relates to the issues involved in determining native title. Essentially, the determination relates to the matters set out in ss. 223 and 225 of the Act. As was pointed out by Brennan J in Mabo (No. 2) at 58, native title:

has its origin in and is given its content by the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants of a territory.

Once native title or native title rights and interests as defined in s. 223 are ascertained in relation to a claim under the Act, a determination must be made in accordance with s. 225 and ss. 55, 56 and 57. The Act does not provide for any discretionary or public interest considerations to be taken into account in making a determination. Consequently, there is no reason why the legislature would have expected that the interests of persons or groups seeking to be heard in the public interest or in respect of intellectual, conscientious or environmental considerations would be relevant or sufficient interests to give standing as a party in a matter arising under the Act. Further, a refusal of standing under the Act does not deny to 'an important category of modern public statutory duties an effective procedure for curial enforcement': see Brennan J in Onus at 73.

These features suggest that, having regard to the subject matter, scope and purpose of the relevant provisions in the Act:

• the expansive view of 'special interest' accepted as applicable in the area of public law is not applicable to a determination of native title under the Act;
• notwithstanding the Act's use of a criterion commonly employed in determining an entitlement to administrative or judicial review in public law, the principles developed in the decisions as to standing in relation to enforcement or protection of personal rights are relevant but not determinative;
• in each case there must be a cogent and rational connection between the interests that may be affected by a determination and the rights conferred on a party;
• given the non-discretionary nature of the determination there is not such a connection between intellectual, conscientious or emotional interests in relation to the particular area covered by a claim and determination of native title in respect of that area;
• the categories of persons whose interests may be affected by a determination, and therefore ought to be taken into account prior to a final determination ought to be restricted to those whose interests may be genuinely, demonstrably and not indirectly affected by the determination of native title. If the interests alleged are 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 then the statutory criterion will not be satisfied.

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How Widely Do 'The Ripples of Affection' Extend Under the Act?

As Brennan J observed in Re McHattan and Collector of Customs (1977) 18 ALR 154 at 157: '[a]cross the pool of sundry interests, the ripples of affection may widely extend'.

I am in agreement with Olney J and French J that under the Act there is no proper basis for confining the interest required by s. 68(2) to an interest in relation to land or waters as defined by s. 253. There are several reasons for that conclusion. First, as pointed out by Olney J, s. 68(2)(a) makes no reference to an interest in relation to land or waters. Had the legislature intended to confine the entitlement of a person to be made a party under the section to persons having such an interest it would have been likely to provide that a person is a party in relation to the application if:

the person's interests in relation to any of the land or waters in the area over which native title is claimed may be affected by a determination in relation to the application,

rather than if:

the person's interests may be affected by a determination in relation to the application.

Where the legislature intended to employ the statutory definition of 'interest' in s. 253 it expressly or implicitly did so: see ss. 14(2)(b), 19(2)(b), 21(1)(a), 21(3), 25(1), 26(2)(d) and 62(1)(b). Within Div 1 of Pt 3, which is the Division most relevant to the present appeal, the legislature has been careful to use 'interest' in relation to land or waters when it intended to do so: see s. 62(1)(b). The omission of such terminology in s. 68(2) is, in my view, deliberate and supports the conclusion at which Olney J, French J and I have arrived.

Secondly, the words employed in s. 68(2)(a) or words to like effect commonly appear in a variety of statutes to identify the persons who are given standing or are intended to be afforded an entitlement to be heard. That standing gives effect to a legislative intention to afford persons, whose interests may be or are affected by a decision, an opportunity to be heard in relation to the decision before their interests are affected, or further affected, by it. As already explained, a similar legislative intention is clearly discernible from the Act: see ss. 68(2), 69(1), 84, 141, 152, 167(4), 168(2) and 169(3). Even in the area of enforcement or protection of personal rights, standing is given to persons whose freedom of action is challenged by particular conduct or determinations: see Pharmaceutical Society of Great Britain at 433. Accordingly, there is no reason in principle to conclude that the words used in s. 68(2) should bear a meaning which limits the requisite interest to that defined in s. 253.

Thirdly, the legislature has referred to a person whose 'interests' may be affected, rather than a person whose 'interest' in land or waters may be affected, by a determination. In employing the notion of a 'person's interests' the legislature has given a clear indication of its intention to reject an approach to affection of interest which requires the interest to be in land or waters covered by the claim.

Fourthly, for the reasons expressed by Olney J and French J in the decisions to which I have referred, there is ample reason to conclude that the legislature was aware of the large variety of interests that may be affected by a native title determination including the kind of 'interests' considered by their Honours. There is no reason why persons who have had and continue to have regular and lawful use or enjoyment of areas of land or waters covered by a claim under the Act should not be afforded the opportunity of being heard as a party before losing their 'right' or having it otherwise affected by a native title determination. Ordinarily, procedural fairness would require that such persons be afforded an opportunity to be heard before their 'rights' are curtailed or interfered with by a decision: see Alphapharm at 260.

In my view the public has a 'right', albeit a public right, in the relevant sense to have access to and to use public land or waters subject to any relevant statutory or other regulatory provisions applying to the particular area and its use. Subject to such provisions, members of the public stand in an analogous position to that considered by the High Court in respect of a member of the public lawfully entering upon a racecourse. In Heatley v Tasmanian Racing & Gaming Commission [1977] HCA 39; (1977) 137 CLR 487, in holding that such a person was to be afforded an opportunity to be heard before being warned off, Aickin J (in a passage concurred in by Stephen and Mason JJ) said at 507:

so long as [the member of the public] is present with the permission of the owner he does have a right as against all the world other than the owner to continue upon the premises and remain there in accordance with whatever the terms may be of the licence originally granted to him. Other persons attempting to eject him from the premises or to interfere with his permitted user would be guilty of trespass to the person and of assault. As against all the world, including the Commission, such a person is lawfully upon the land and entitled to remain there, but for whatever overriding statutory powers may be conferred upon the Commission as an organ of the government.

Clearly, such a right is not a proprietary right and does not confer any estate or interest in land: see Stow v Mineral Holdings (Australia) Pty Ltd [1979] HCA 30; (1977) 51 ALJR 672. In Stow at 679 Aickin J, in discussing the entitlement of members of the public to use Crown lands, governed by statute, for recreational purposes said:

All members of the public may have the right to go upon such land in the sense that they may freely walk thereon or in defined portions thereof and may resist attempts by the Crown or anyone else to eject them from such land. The fact that some of them are more disposed to go upon the land than others, derive more benefit therefrom and use the statutory right more often than others does not elevate that which is a public right enjoyed by all members of the public equally into a private right capable of being described as an estate or interest in the land.

Accordingly, for these reasons, the ripples of affection provided for under s. 68(2) clearly extend beyond interests in land or waters as defined in s. 253.

The more difficult question is the definition of the nature and extent of the interest required by s. 68(2). For the reasons expressed earlier the 'interest' required for standing under the Act is not as broad as now permitted in the area of public law but may be broader than that required for standing in determining private rights in inter partes litigation.

In my view when regard is had to the subject matter, scope and purpose of the relevant provisions of the Act standing as a party under the Act is restricted to persons whose interests:

• may be genuinely, demonstrably and not indirectly affected by a determination of native title;
• 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;
• can be defined with reasonable certainty and is in each case readily ascertainable as a matter of fact and law.

The legislature did not intend that those who have mere, albeit genuine, intellectual, ideological, conscientious or emotional concerns or interests in relation to a claim or the area covered by it, should be regarded as persons 'whose interests may be affected' for the purposes of ss. 68 or 84.

Accordingly, a determination which may curtail or interfere with the activities of persons who habitually or regularly use or enjoy public land or waters would give rise to a sufficient interest for those persons to have standing as parties under the Act.

Obviously questions of degree can be involved in determining issues relating to standing and in particular, whether the interest in question is not indirect or is remote. Such questions will have to be worked out on a case by case basis. In that regard an occasional, rather than a habitual or regular, user of an area covered by a claim is unlikely to have the standing, as a party.

As was stated at 405 by Olney J in Yorta Yorta:

It will be a question of fact in each case whether or not a person's interests may be affected by a determination of native title.

Are Organisations Representing Persons Whose Interest May Be Affected Entitled to be Parties?

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The problem arising in respect of an organisation representing members who have interests that may be affected by a determination is that the interests of the organisation are indirect. Put another way, it is the interests of members, rather than those of an organisation representing them, that may be affected.

In a different context it has been recognised that a body whose objects include the advancement of the general interests of its members may lack standing as it does not have a 'sufficient material interest, which would be prejudiced', although its members, whose medical practices were directly affected by the operation of a statute, were entitled to maintain the suit challenging its validity: see Federal Council of the British Medical Association in Australia v The Commonwealth [1949] HCA 44; (1949) 79 CLR 201 at 257 per Dixon J.

A different situation might arise if such organisations themselves conduct activities in the area covered by the claim which may be curtailed, interfered with or otherwise affected by a determination. In such cases there is no reason in principle why such organisations may not be persons whose interests may be affected by a determination.

Is the Centre a Person Whose Interest May be Affected by the Native Title Claim?

I have concluded that the following principles are applicable in determining standing under the Act:

• the interest required to be a party in the NNTT under s. 68(2) is not limited to an interest in relation to land or waters as defined by s. 253;
• the interests of a person that may be affected by a determination for the purposes of s. 68(2) are to be genuine, demonstrable, not indirect and not remote or so insubstantial that it will be mere speculation as to whether and, if so, how the interests may be actually affected by the determination;
• the requisite interest is one which can be defined with reasonable certainty and is in each case readily ascertainable as a matter of fact and law;
• intellectual, emotional, conscientious, ideological or representative interests are not sufficient or relevant interests for the purposes of s. 68(2);
• whether a person has the requisite or a sufficient interest involves questions of degree and fact in each case.

The Centre adduced evidence, upon which it wished to rely, to establish standing. That evidence did not establish that any activities or programs of the Centre will be curtailed, interfered with or otherwise affected by the determination of native title sought in the application. Further, although it can be accepted that the Centre has a real and genuine concern with the ecology and environment in the area covered by the claim such a concern does not, for the purposes of s. 68(2), constitute the requisite or a sufficient interest. If the totality of the evidence remains unchanged then, in my view, the Centre has not established that it is entitled to be a party to the claim of the Arakwal people.

However, in fairness to the Centre there has been some doubt as to the criteria for standing under the Act. In these circumstances it is my view that, if so advised, the Centre should not be deprived of the opportunity of adducing further evidence before the NNTT in support of its case for standing.

The Centre's Further Ground of Appeal

The Centre also argued in support of one further ground of appeal. In substance, the Centre contended that the NNTT can only exercise its power to deny a person standing as a party if a party to the proceeding objects to that person being made a party.

This ground of appeal is based on the fact that there was no objection by any party to the Centre's application to be a party in the NNTT. The Centre contended that the Act does not entitle the NNTT, rather than a party, to object to the Centre's application.

In my view there is no substance in this ground of appeal. Section 68(2)(a) provides that a person is entitled to be a party if the requirements set out in the sub-section are satisfied. The main requirement is that the person be a person whose interests may be affected by the determination. There is no provision which entitles a person to be a party if all other parties do not oppose that person's application to be a party.

Section 69(1) provides for a decision of the NNTT on a person's entitlement to be a party to be made if it is necessary to do so. In my view, in the statutory context, 'it is necessary' to make such a decision if a circumstance arises which, in the opinion of the NNTT, requires such a decision. That is precisely what has occurred in the present case.

Conclusion

The Centre has succeeded in establishing that, in arriving at its decision, the NNTT erred in law. For the reasons I have set out it is appropriate to order that the matter be remitted to the NNTT to determine the question of the Centre's standing pursuant to ss. 68 and 69 of the Act in accordance with law. Accordingly, the Centre is entitled to an order that the appeal be allowed and the decision be set aside.

Although the NSW Minister has as a matter of substance, largely succeeded in respect of the contentions advanced on the appeal, in my view the costs orders proposed by Lockhart J are, in all the circumstances, fair. Accordingly, I agree with those orders.

In my view the principles I have enunciated give effect to the legislative intent and meet the consideration set out in the preamble to the Act that the special procedure under the Act is available:

for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character.

Once it is accepted that standing is not limited to persons having an interest in relation to land or waters, as defined by s. 253, it must follow that many claims to native title might affect the interests of a large number of persons or entities in a multiplicity of ways. However, it is relevant to observe that the nature and extent of the interests that may be affected arise from and inhere in the nature of native title. In that regard the potential affection of interests in each case will depend largely on the formulation and ambit of the native title claim. A claim for exclusive occupation and use of land and waters habitually or regularly used by members of the public for leisure or sporting activities can affect a wider variety and number of interests than a non-exclusive claim. Under the statutory scheme it is 'just and proper' for all persons whose 'interests' may be affected by such a claim, irrespective of the number or variety of such persons, to be afforded the opportunity to be a party and to be heard before their 'interests' are finally affected by the determination of the claim.

Finally, I would add that, if it be relevant, I do not accept that a more expansive view of standing would assist the reconciliation process. It takes little imagination to conceive of the variety of ideological or conscientious interests or groups that may be genuinely and deeply committed to supporting or opposing native title claims in particular areas of Australia. To afford such interests or groups the standing of a party under the Act is a recipe for promoting, rather than resolving, differences. If the public interest can be a relevant factor in determining a party's attitude to a native title claim, that aspect is dealt with under the Act by giving standing, as of right, to the relevant Commonwealth, State or Territory Ministers.

See also Members of the Yorta Yorta Aboriginal Community v State of Victoria (1996) 1(3) AILR 402.