FEDERAL COURT OF AUSTRALIA

Harrington-Smith on behalf of The Wongatha People v State of

Western Australia [2002] FCA 184

NATIVE TITLE – application by peak representative body of industry to be made a respondent to native title determination application – whether representative body had interests which “may be affected by a determination in the proceedings” within subs 84(5) of the Native Title Act 1993 (Cth) – whether invitation from National Native Title Tribunal to participate in mediation coupled with the fact of its participation gave the body such an interest – possibility of body’s being appointed under s 84B of the Native Title Act 1993 (Cth) to act as agent on behalf of any of its members who were respondents to the application.

Native Title Act 1993 (Cth) ss 84(5), 84B

Byron Environment Centre Incorporated v Arakwal People (1997) 78 FCR 1 referred to

Woodridge v Minister for Land and Water Conservation for the State of New South Wales (2001) 108 FCR 527 referred to

RON HARRINGTON-SMITH, LEO THOMAS, CYRIL BARNES & ORS

ON BEHALF OF THE WONGATHA PEOPLE v THE STATE OF

WESTERN AUSTRALIA & ORS

WAG 6005 OF 1998

LINDGREN J

11 FEBRUARY 2002

SYDNEY (VIA VIDEO-LINK WITH PERTH)

THE COURT ORDERS THAT:

1.         The motion brought by the Chamber of Minerals and Energy of Western Australia Inc by notice of motion filed on 25 January 2002 be dismissed.

2.         The question of the costs of the motion be reserved.

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

REASONS FOR JUDGMENT

1                     The Chamber of Minerals and Energy of Western Australia Inc (“the Chamber”) moves by a notice of motion filed on 25 January 2002 for an order that the Chamber be a member of the Group 5 respondents and be the representative of that Group for the purposes of Order 1 of my orders of 30 August 2000, that is, that the Chamber’s address be the address for service of the respondents in Group 5.  The notice of motion refers to two further orders to which I need not refer.

2                     It is common ground that in order for the Chamber to succeed on its motion, the Court must be “satisfied that the [Chamber’s] interests may be affected by a determination in the proceedings”: see subs 84(5) of the Native Title Act 1993 (Cth) (“the Act”).  The nature of the interests referred to in that subsection and its predecessor has been considered by a Full Court of this Court in Byron Environment Centre Incorporated v Arakwal People (1997) 78 FCR 1 and by Katz J in Woodridge v Minister for Land and Water Conservation for the State of New South Wales (2001) 108 FCR 527.  I do not find it necessary to refer to the discussion of the matter in those cases, beyond noting that they establish that a society, organisation, association or other body which voices, protects or promotes the concerns and interests of its members does not, by reason of that circumstance alone, have “interests [which] may be affected by a determination in the proceedings” for the purposes of subs 84(5) of the Act.

3                     In various ways the Chamber acts in the manner and for the purpose which I described above.  An affidavit of Eric Gregory Johannes of 25 January 2002 establishes that the Chamber engages in a wide range of such activities and, indeed, has engaged in them in relation to the very land the subject of this proceeding.  But it is not the case that any property or activity of the Chamber itself may be affected by a determination in the proceeding.  Indeed, it has not been squarely put that any specific interest of the Chamber, as distinct from the interests of its members, may be affected by any determination of native title which can be made in the proceeding.

4                     Mr Donaldson of counsel, who appears for the Chamber on the motion, submits that the present case is distinguishable on the basis that the National Native Title Tribunal invited the Chamber to participate in a mediation before it in relation to the claim and that the Chamber did so participate.  I do not think this amounts to a material distinction.  The Tribunal invited the Chamber to participate because of the interests of its members.  If no member had had an interest which might be affected by a determination in the proceeding, the Tribunal would not have been invited to participate or have done so.  When the Chamber responded to the invitation by participating in the mediation, it did so because of, and in right of, the interests of its members rather than any interest of its own.

5                     While the evidence demonstrates the considerable activity in which the Chamber engages, and while it may be that the Chamber, if made a party, would be able to make submissions of assistance to the Court which any one of its members who is a party might not, left to its own resources, be in a position to make, these considerations do not signify that the Chamber has an interest for the purpose of subs 84(5).  Rather, they suggest advantages in the Chamber’s being appointed under s 84B of the Act as agent for one or more of its members who are parties to the proceeding.

6                     I am not satisfied on the evidence that the Chamber has any interests which may be affected by a determination in the proceeding.

7                     For the above reasons, the Court orders that motion brought by notice of motion filed on 25 January 2002 be dismissed.

8                     I will reserve the question of costs.  That question could be dealt with in Kalgoorlie next week or at some other convenient time.

Associate:

Dated:              28 February 2002