FEDERAL COURT OF AUSTRALIA

Powder Family v National Native Title Tribunal [1999] FCA 895

NATIVE TITLE - joinder of non-party to interlocutory proceedings only - whether sufficient interest in subject matter to allow joinder - relevant considerations where no other contradictor to interlocutory proceedings - interpretation of O 78 r 10 Federal Court Rules

Native Title Act 1993 (Cth) ss 29, 35, 84, 190D

Federal Court Rules O 6 r 8, O 78 r 10

Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 139 ALR 663, cited

Friends of Hinchinbrook Society Inc v Minister for the Environment (No 1) (1996) 69 FCR 1, cited

POWDER FAMILY v NATIONAL NATIVE TITLE TRIBUNAL

Q 6016 OF 1999

DRUMMOND J

BRISBANE

25 JUNE 1999

THE COURT ORDERS THAT:

1.                  Marlborough Nickel Pty Ltd be given leave to be joined as a party to these proceedings.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     I have before me a notice of motion brought by Marlborough Nickel Pty Ltd, a non-party to certain proceedings instituted in the Court, for joinder of that non-party as a party in those proceedings and for leave to deliver submissions in those proceedings.  The proceedings in question were commenced on 15 April 1999 by Mr Powder on behalf of the Jetimarala people.  The decision he challenges is a decision of the Registrar of the National Native Title Tribunal to refuse registration of an application earlier lodged by Mr Powder on behalf of the Jetimarala people for a native title claim determination.  The application reads in this way:

“Application under s.190D(1) and s.190D(2) to review a decision of the Respondent [ie, the Registrar of the National Native Title Tribunal] made on or about 24 February, 1999 to refuse to grant the Applicants’ registration and the right to negotiate under the Native Title Act 1993 (as amended).”

2                     The background to the present proceedings is as follows:  in May 1998, Marlborough Nickel applied to the Queensland Government for the grant of a number of mining leases.  In October 1998, the State of Queensland issued a notice under s 29 the Native Title Act 1993 (Cth) relating to the proposed grant of these mining leases.  The effect of this notice was to set running the period in which appropriate parties are entitled to participate in the negotiation process provided for by the Native Title Act.

3                     It was on 22 January 1999 that Mr Powder lodged the native title claim that I have earlier referred to over land that is the subject of the mining lease applications and the s 29 notice issued by the State of Queensland.  Two other groups have brought separate proceedings under the Native Title Act claiming native title determinations in respect of those same lands.  On 23 February 1999, the Registrar of the National Native Title Tribunal gave a decision determining that Mr Powder’s native title claim application did not pass the registration test, but that the other two native title claim applications - the one brought on behalf of the Barada and other peoples and the other brought on behalf of the Darumbal peoples - did pass the registration test.

4                     Negotiations had commenced between Marlborough Nickel, the State of Queensland and the Barada and Darumbal native title claimants in late 1998.  Those negotiations continued after the issue of the s 29 notice I have referred to, in accordance with the requirements of the Act, as they fell on those four parties.  The negotiations between them have not produced an agreed outcome.  But, on 1 June 1999, Marlborough invoked s 35 the Native Title Act by applying for arbitration in respect of the subject matter of the negotiations that had taken place unsuccessfully up to that time between it, the State of Queensland, the Barada and the Darumbal peoples.

5                     The present application, filed on 15 April 1999 by Mr Powder, challenging the rejection of registration by the Tribunal Registrar of his native title determination claim, has come before another judge of the Court.  By directions made by that judge in April, the State of Queensland and the applicant were both directed to provide submissions as to the nature of the review process provided for by s 190D.

6                     At least the State of Queensland has made submissions as to the nature of the review process provided for by s 190D.  But it appears to be common ground that there is, in effect, no one presently a party to the application for review brought by Mr Powder on 15 April interested in contradicting the claim made by Mr Powder that the Tribunal Registrar’s determination should be overturned as wrong.

7                     Order 78 r 10 the Federal Court Rules deals with applications such as that brought by Mr Powder challenging the Tribunal Registrar’s determination.  It provides in sub-rule (7) that:

“The Court may order that the application be served on, or notice be given to, any person that the Court is satisfied has an interest in the application.”

8                     Sub-rule (8) provides:

“A person served with, or given notice of, the application may file and serve a notice of appearance and, unless the Court otherwise directs, becomes a respondent to the application on filing the notice of appearance.”

9                     It is clear from those two provisions that the Rules envisage that any person or organisation with a sufficient interest in the subject matter raised by an application, including an application of the kind brought by Mr Powder challenging the Tribunal Registrar’s determination, can be granted party status in respect of that application.  The test to be applied, in my opinion, is not that contained in any of the provisions of s 84 the Native Title Act, which deal with who are to be parties to claims made for the determination of native title.  The test envisaged by O 78 r 10(7) is the more general one, similar to that provided by O 6 r 8 the Federal Court Rules.

10                  I take the considerations relevant to determining whether Marlborough Nickel has a sufficient interest of the kind envisaged by O 78 r 10(7) to be those identified in Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 139 ALR 663 at 670 - 671 and Friends of Hinchinbrook Society Inc v Minister for the Environment (No 1) (1996) 69 FCR 1, particularly at 15 and 16.  The question in determining whether a person not a party to litigation has a sufficient interest to become a party is, in part, governed by whether its rights against or liabilities to any party in the action in respect of the subject matter of the action will be directly affected by any order that may be made in the action.  Moreover, in the absence of Marlborough Nickel from the s 190D proceedings, it appears there is no proper contradictor in respect of contentions made by Mr Powder as to the incorrectness of the Tribunal Registrar’s decision to reject the claim for registration.

11                  It is apparent from the application brought under s 190D by Mr Powder that the orders Mr Powder seeks extend beyond overturning the rejection by the Registrar of the Tribunal of Mr Powder’s native title determination claim for registration.  One of the orders Mr Powder seeks is this:

“An order that the Registrar of the National Native Title Tribunal accept the Application for registration pursuant to s.190A of the Native Title Act 1993 triggering the right to negotiate for the Applicants.”

12                  It is also apparent that, in addition to asserting an entitlement retrospectively on the part of Mr Powder to participate in the negotiation process instigated by issue of the s 29 notice, the relief sought by Mr Powder may well have the effect of rendering nugatory the steps that have been taken to date in complying with the negotiation requirements of the Native Title Act which, of course, have so far fallen only on Marlborough Nickel, the State of Queensland, and the Barada and Darumbal peoples.

13                  It seems to me that, in these circumstances where Marlborough Nickel is an applicant for mineral titles in the area the subject of Mr Powder’s native title claim determination, and where there has been movement through the statutory negotiation process, triggered by the s 29 notice, to the stage already reached, Marlborough Nickel can properly say that the determination sought by Mr Powder has a direct impact on its rights and interests.  If Mr Powder’s application under s 190D is successful, Marlborough Nickel will have to negotiate with him in accordance with the Native Title Act before its mining applications can be dealt with by the State of Queensland and it may be that, in addition, Marlborough Nickel will have to begin anew the whole negotiation process that it has gone through with the State of Queensland and the Barada and the Darumbal peoples.

14                  I am therefore prepared to make an order for the joinder of Marlborough Nickel to the s 190D application, Q 6016 of 1999, subject to being satisfied that it is appropriate to make that order given that that application is presently part-heard by another judge of the Court:  this being an interlocutory order, that judge retains power to revoke it or to decline to give practical effect to it by refusing Marlborough Nickel leave to make the submissions it wishes to make.

15                  The only order I will make is in terms of par 1 of Marlborough Nickel’s notice of motion.  Marlborough Nickel will have to seek the leave of the judge dealing with the s 190D proceedings to make its submissions.

16                  The Court declines to make any order in respect of the costs of the motion before me.

Associate:

Dated:              25 June 1999