A group of Kaanju Aboriginal people re land claim – Archer Bend National Park and Rokeby National Park [1994] QLT 14

LAND CLAIM TO THE EASTERN PART OF ROKEBY NATIONAL PARK Decision of the land Tribunal concerning the application by a group of Kaanju people to be made a party to the proceeding Application and decision 1. In a letter dated 11 October 1994, the Cape York Land Council applied to the Land Tribunal (the "Tribunal") for a group of Kaanju Aboriginal people to be made a party to the proceeding for the hearing of the claim made by certain Aborigines to the eastern part of National Park 22 (NP22 Norton), known as Rokeby National Park (the "land claim to the eastern part of Rokeby National Park"). 2. The Tribunal has decided that the Kaanju people represented by the Cape York Land Council are interested persons in relation to the land claim to the eastern part of Rokeby National Park. Consequently, the Tribunal has, by order, made the group a party to the proceeding. 3. The reasons for the Tribunal's decision are set out below. Background to the application to be made a party 4. The land claim to the eastern part of Rokeby National Park was made on a land. claim form received by the relevant program of the Department of Lands on 14 July 1994. Section 3 of the land claim form states: "The claim is made by or on behalf of the group of Aboriginal people described below: Theresa Heinemann and Georgina Blanco on their own behalf and on behalf of the southern Kaanju". The claim was made on two grounds - traditional affiliation and historical association. The Aboriginal Land Act 1991 (the "Act") sets out criteria by which claims made on each of those grounds are to be determined. 5. By letter dated 26 July 1994 the authorised delegate of the Land Claims Registrar wrote to the Chairperson of the Land Tribunal stating that in his opinion the land claim had been duly made in accordance with the Act and enclosing the land claim for consideration the [1994] QLT 14 TribunaL -- 1 of 10 -- 2 6. In accordance with the Act, notices were published in the Queensland Government Gazette, various newspapers and elsewhere advising that the land claim application had been received. The notices advised that: (a) any person whose pecuniary or other interests could be affected by the grant of the land as Aboriginal land could apply to be made a party to the proceeding for the hearing of the claim; and (b) any other group of Aboriginal people that wishes to make a claim to the whole or part of the land could do so. In each case, applications were sought by 14 October 1994. 7. In a letter dated 11 October 1 994, the Cape York Land Council applied to the Land Tribunal for a "group of Kaanju Aboriginal people" to be made a party to the proceeding for the hearing of the claim. The group was described as comprising Kaanju people, "other than the claimants, who have traditional and historical affiliations in the eastern portion of Rokeby, but who were not consulted by the claimants prior to the lodgment of the claim application." The group is said to include, but not be restricted to the original claimants to the Birthday Mountain land claim. Those claimants were described on the land claim application in the Birthday Mountain proceeding as "descendants of Alick Niger (deceased), including his son Thomas Creek and grandchildren Allan Creek, Ann Creek, Jennifer Creek, Patricia Creek, James Creek and Donna Creek (deceased) and their descendants". 8. Enclosed with the application to be made a party were copies of three documents. The first was an undated letter addressed to the Executive Director of the Cape York Land Council and signed by approximately 40 people. The letter states: "We are all Kaanju people who believe we have either or both of traditional affiliation or historical association interests in the eastern portion of Rokeby National Park. We are aware that Theresa Heinemann and Georgia Blanco have made a claim over the eastern portion of Rokeby National Park. They did not ask us before they lodged the claim and they do not represent us nor do they have any authority to say they represent us. We request that the Cape York Land Council acts as our agent us relation to ! claim over the eastern portion National Park." -- 2 of 10 -- 3 9. The other two documents are letters between the principal solicitor of the Cape York Land Council and the Land Claims Registrar. The letter dated 15 July 1994 refers to the land claim application and states that the Land Council has received instructions "from a large group of people who state that they comprise Kaanju and Ayapathu traditional owners of land forming part of Rokeby National Park". The instructions "appoint the Land Council as their agent for the purposes of lodging and pursuing a claim" under the Act. The letter states that, notwithstanding that Theresa Heinemann and Georgina Blanco "claim to bring the claim 'on behalf of the Southern Kaan ju', which group clearly includes some of our clients, our clients have not been consulted at all by those persons or any person acting on their behalf about the lodgment of the recent claim over their land. Those of our clients who are Kaanju object most strongly to the claim said to be lodged inter alia, on their behalf without their consent. 11 10. The Land Claims Registrar was requested not to accept the land claim application in its present form II as it is not lodged on behalf of the people it purports to represent". In his reply, dated 26 July 1994, the authorised delegate of the Land Claims Registrar advised that, because the land claim met the requirements of section 4.06 of the Act, he had declared it to be duly made and had forwarded it to the Land Tribunal. 11 . The application for the group of Kaanju people to be a party is made on the following grounds: (a) Applicants believe they have either or both traditional and historical associations to the area of the claim. (b) Applicants were not consulted by Mrs Theresa Heinemann and Mrs Georgina Blanco before lodgment of the claim. {c) Mrs Heinemann and Mrs Blanco do not represent, nor do they have the authority to represent, the interests of the applicants. (d) Mrs Heinemann and Mrs Blanco do not represent, nor do they have the authority to represent, the interests of all southern Kaanju. (e) It follows that Mrs Heinemann and Mrs Blanco can only act for themselves, and possibly their families. (f) The applicants fear their interests may in so far as: -- 3 of 10 -- 4 (i) the Tribunal may not be made aware of their interests in the land; and (ii) the Tribunal may, in consequence, fail to take these interests into account in its findings and recommendations; and (iii) the Tribunal may, in consequence, make findings and recommendations which fail to recognise the applicants' historical and traditional associations to the claim area. (g) It follows that the applicants' interests may be affected by their being excluded from the grant of land should the claim succeed. Deciding whether a person should be made a party to a proceeding - the approach 12. The Act provides that the parties to a proceeding for the hearing of a land claim are: (a) the claimants; and (b) the claimants of any other claim under the Act that is to be determined with that claim; and (c) any other person who has been made a party to the proceeding by the Tribunal on application by the person. The Act also sets out the procedure for deciding whether a person should be made a party. The principal provisions are sections 8.17 and 8. 18 and the definition of "interested person" in section 1.03. 13. There are a number of unusual features of the present application. First, some or all of the applicants to be a party may already come within the description of the claimant group, whether or not they knew of or consented to the land claim lodged by Mrs Heinemann and Mrs Blanco "on behalf of the southern Kaanju". For those persons, the present application may be unnecessary or inappropriate unless the presentation of evidence by and on behalf of the claimants does not adequately demonstrate the traditional affiliations or historical associations (if any) with the land which the present Kaanju applicants have. Second, if the claimant group does not include all of the Kaanju people making the application to be made a party, those other Kaanju people have not lodged a subsequent claim to the eastern part of Rokeby National Park in accordance with section 4.08 of the Act but have applied to be a party. If those sections of the which provide for the determination land claims the a finding or ation respect to the claimant group then the Tribunal may not able to -- 4 of 10 -- 5 recommend that a grant be made in favour of other persons who are not part of that group even if they can demonstrate their traditional affiliations or historical associations to the land claimed. Third, if the Tribunal is satisfied that the claimants have established their claim on the ground of traditional affiliation or historical association, the Tribunal may have to advise the Minister about the consequences to the present Kaanju applicants of the grant of the land to the claimants (rather than recommending a grant in their favour). 14. Because the applicants have not made a subsequent claim to the land and are apparently unwilling to join with the named claimants in preparing and presenting the claim, it is necessary to deal with the application to be made a party. 15. In summary, a person (other than a claimant) can only be a party to a proceeding for the hearing of a land claim if: (a) the person is an interested person; and (b) the person has applied in writing within the relevant period to the Tribunal to be made a party to the proceeding; and (c) the Tribunal has made an order making the person a party to the proceeding. 16. Section 1.03 of the Act defines "interested person", in relation to a claim for claimable land to mean "a person whose interests (whether pecuniary or otherwise) could be affected by the grant of land as Aboriginal land because of the claim". 17. The applicatipn was made in writing within the period specified in the notice published by the Tribunal under section 4.07 of the Act in relation to the land claim. The issue is whether the members of the applicant group are "interested persons" in relation to that claim. Who is an "interested person"? 18. The elements that need to be satisfied to establish that an applicant is an "interested person" are that: ( a) the applicant is a "person"; and (b) the applicant has "interests" that "could be affected" by the grant of the land under claim as Aboriginal land because of the claim. The mean of of those terms is to context in the Act and to the pu determined the regard to -- 5 of 10 -- 6 Person 19. "Person" is not defined in the Act but the Acts Interpretation Act 1954 provides, in section 36: "In an Act - . . . 'person' includes an individual and a corporation" 20. Clearly each of the individuals in the applicant group is a "person" for the purposes of the Aboriginal Land Act 1 991 . Interests 21. The next question is whether the applicants have "interests" that could be affected by the grant of the land. 22. The words "interest" and "interests" have been held to be words of "uncertain" meaning or "capable of many meanings", so that the meanings which they bear vary according to their context. 1 23. The definition of "interested person" in section 1 .03 of the Act makes it clear that the interests can be "pecuniary or otherwise". Accordingly, it is not essential that the applicant could be affected financially by the grant of the land. 24. "Interests" as used in this context is also broader than, but inclusive of, an interest in relation to land, which is defined in section 1 .03 of the Act to mean: "(a) a legal or equitable estate or interest in the land; or (b) a right, power or privilege over, or in relation to, the land; and includes - (c) a permit or licence issued in relation to the land; and (d) a mining interest". See Leedale v Lewis [1982] 'I WLR 1319, at p. 1329 (Lord Wilberforce), p, 1324 (Lord Fraser of Tullybelton); In re Hampton Fuel Allotment Charitv !1988] 3 WLR 5'13, at p. 519 (Court of Appeal). -- 6 of 10 -- 7 25. The applicants do not suggest that they have proprietary or pecuniary interests in the land claimed. They assert that they have traditional affiliations and historical associations with the land claimed. Those affiliations and associations could have provided the grounds for the applicants to make a claim under the Act. Had they lodged a duly made claim they would not have acquired a proprietary interest in the land but would have acquired a statutory right to have the claim investigated, reported on, considered and disposed of in conformity with the Act. 2 26. The Act was recently amended to include the following definition of "native title interests": 27. "1.04A. (1) In this Act "native title interests" means the communal, group or individual rights and interests of Aboriginal people in land or waters if - (a) the rights and interests are possessed under Aboriginal tradition; and (b) the Aboriginal people, by Aboriginal tradition, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia. (2) Without limiting subsection ( 1), rights and interests in that subsection include hunting, gathering or fishing rights and interests." Consistently with that definition, the expression "interests" as used in the definition of "interested person" may be taken to include "native title interests". Although the Tribunal has no jurisdiction to deal with native title matters, the land claim was made "subject to any existing Native Title Rights over the land claimed" and those native title rights are expressly reserved. It is not possible at this stage in the land claim process to say whether Aboriginal people have, or had, native title to the land claimed or whether native title has been extinguished in respect of any or all of the land. If the Kaanju applicants have traditional affiliations and historical associations with respect to the land then those affiliations and associations may give rise to native title interests. See The Queen v Kearney; Ex parte Japanangka (1983-1984) 158 CLR 395 at 4·17 per Brennan J. -- 7 of 10 -- 8 28. The traditional affiliations and historical associations with the land, if proved to the satisfaction of the Tribunal when dealing with a duly made claim, could lead to the grant of proprietary interests in the land. 29. The applicants have interests of the type contemplated in the definition of "interested person" in section 1 .03 of the Act. 30. 31. 32. 33. 4 Could be affected Where an applicant has relevant interests, the remaining issue is whether those interests "could be affected" by the grant of the land as Aboriginal land because of the claim. This involves, first, considering the connotation of the word "affected" in this context and, second, the degree of likelihood that the grant of the land will result in the effect contemplated by the applicant. With respect to the first element to be considered, it should be noted that the ordinary meaning of the word "affected" is broad. If that broad meaning is applied in this context, an applicant's interests could be affected if the grant of the land could "produce (material) effect on" those interests,3 or could "have consequences" for those interests. 4 In other words, those interests could be "acted upon; influenced" by the grant of the land. 5 Various courts have observed that, depending on its context, the word "affected" can have a very wide meaning or a narrower meaning. 6 There is also authority for the view that "affected" should not be given an artificial, narrow or technical meaning. 7 The issue is what the word "affected" means when used in the definition of "interested person" in section 1.03. For two reasons the word "affected" in this context should be read broadly. First, the definition uses the word unqualified by any adverb See The Australian Concise Oxford Dictionary, 1 988, at p. 16. Right Words by Stephen Murray-Smith, 2nd edn, Penguin, 1990, at p. 17. See The Macquarie Dictionary, 2nd edn, 1991, at p. 27. See, for example, Commissioner for Motor Transport v Kirkpatrick (1 987) 11 NSWLR 427, at p. 438 (Kirby P) and p. 446 (Mahoney JA) citing Umina Beach Bowling Club Ltd v Ryan [1984] 2 NSWLR 61, at p. 68; Shanks v Shanks (1942) 65 CLR 334, at p. 337; Re Clarendon Development Ltd (1965) 50 DLR (2d) 521 (NSSC), at p. 529; see also Briggs v Batts [1986] 2 QdR 309, Stevenson v Stephens [ 1 990] 1 QdR 5 7 5. See, for example, Timanu Pty Ltd v Clurstock Pty Ltd (1 988) 1 5 NSWLR 338, at p. 345 (Kirby P, with whom Hope and McHugh JJA agreed). But see also the caution in Little v Piccin (1983) 52 LGRA 258, at p. 272 (Powell J). -- 8 of 10 -- 10 9 (such as "injuriously" or "adverseiy") 8 which would suggest that only persons whose interests could be injured or detrimentally affected could be interested persons. Second, the scheme of the Act suggests a broader approach. Section 4.16(5) provides that, when the Tribunal makes a recommendation to the Minister that the land be granted, the Tribunal must advise the Minister in relation to each of the following matters: "(a) the number of Aborigines who will be advantaged by a grant of the land, and the nature and extent of the advantage that will accrue to them; and (b) the responsibilities in relation to the land that the group of Aboriginal people concerned agree to assume if the land is granted because of the claim, and how those responsibilities should be expressed in any deed of grant or lease granted in relation to the land; and (c) the detriment to persons or communities (including other Aboriginal groups and Torres Strait Islanders) that might result from a grant of the land; and (d) the effect (if any) that a grant of the land is likely to have on the existing and proposed patterns of land usage in the region of the land." Where interests could be affected in the sense of being "influenced injuriously; impaired", 9 the grant of land might result in detriment to a person and the Tribunal would advise the Minister accordingly. In other instances, a person's interests may be enhanced, strengthened or affected in some other way by the grant of the land. In those cases where land use is likely to be affected, opinions may vary as to whether that effect is beneficial or not. In each case it could be said that the interests of the person could be "affected" . 10 Compare the definition of "person aggrieved by a decision" in section 3(4) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). See The Macquarie Dictionary, 2nd edn, 1991, at p. 27. See Phillips v Secretary, Department of Transport (1978) 23 ALR 314, at pp. 318-3 9;see also Re Control Investments Pt11 Ltd and Australian Broadcastinq Tribunal (No 1) (1980) 3 ALO 74, at p. 81 (Davies J). -- 9 of 10 -- 10 34. Finally, to meet the criteria of an "interested person" it must be apparent that the interests "could" be affected, in the. sense that the interests are capable of being affected by the grant of the land as Aboriginal land and there is some possibility (though not necessarily a high probability or a certainty) of the grant having an affect on those interests. 35. In some cases an element of speculation may be involved. It may not be possible to predict with any certainty in advance of, say, hearing the claimants' evidence whether or how the other person's interests could be affected. The important thing to establish is that there is some prospect, but not an unduly remote one, that the person's interests would be affected by the grant of the land. 11 36. The applicants' interests could be affected in at least two ways. If they (or some of them) are within the scope of the claimant group and the claim succeeds they may be among the Aborigines who will be advantaged by the grant of the land. If the claim succeeds and the applicants are not within the claimant group or are otherwise precluded from enjoying the benefits of a grant of land with which they have traditional affiliations or historical associations then they may suffer detriment from the grant of the land. Order 37. Pursuant to section 8.17(2) of the Aboriginal Land Act 1991, the Land Tribunal has decided that the members of the group of Kaanju people represented by the Cape York Land Council are interested persons in relation to the land claim to the eastern part of Rokeby National Park. Consequently, the Tribunal orders that the group be made a party to the proceeding. Graeme Neate Chairperson Land Tribunal. 9 December 1994 11 See Onus v Alcoa of Australia Limited (1981) 149 CLR 27, at p. 38 (Gibbs CJ), p. 57 (Aickin J), p. 76 (Brennan J); Central Queensland Speleological Society Incorporated v Central Queensland Cement Pty Ltd (No 1) [1 989] 2 QdR 512, at p. 525 (Thomas J - dissenting); Administrative and Clerical Officers Association v Conn ( l 988) 52 NTR 57, at pp. 70-71 (Kearney J). -- 10 of 10 --