Cook Shire Council re land claim – Archer Bend National Park and Rokeby National Park [1994] QLT 12

LAND CLAIMS TO ARCHER BEND NATIONAL PARK AND ROKEBY NATIONAL PARK Decision of the land Tribunal concerning the applications by Cook Shire Council to be made a party to the proceedings Applications and decision 1. In a letter dated 29 April 1994, the Chief Executive Officer of Cook Shire Council applied to the Land Tribunal (the "Tribunal") for the Cook Shire Council (the "Council") to be made a party to the proceeding for the hearing of the claim made by certain Aborigines to National Park 3 (NP3 Meta), known as Archer Bend National Park, and to the western part of National Park 22 (NP22 Norton), known as Rokeby National Park (the "land claim to Archer Bend National Park and the western part of Rokeby National Park"). 2. In a letter dated 31 August 1994 the Acting Chief Executive Officer of the Council applied to the Tribunal for the Council to be made a party to the proceeding for the hearing of the land claim made by certain Aborigines to an area described as the eastern Part of Rokeby National Park (the "land claim to the eastern part of Rokeby National Park"). The land claim to the eastern part of Rokeby National Park includes some of the land which is the subject of the land claim to the western part of Rokeby National Park. 3. The Tribunal has decided that the Council Is an interested person in relation to: (a) the land claim to Archer Bend National Park and the western part of Rokeby National Park; and (b) the land claim to the eastern part of Rokeby National Park. 4. The reasons for the Tribunal's decision are set out below. Deciding whether a person should be made a party to a proceeding - the approach 5. The Tribunal has considered previously applications by the Council to be a party to land claim in of other areas claimed [1994] QLT 12 1 proceedings respect of land -- 1 of 5 -- - - - - - - - -- - ---- 2 under the Aboriginal Land Act 1991 (the "Act").1 In most cases, detailed written reasons for the decision were given by the Tribunal. It is not necessary in the present case to restate the analysis given previously of the relevant provisions of the Act. It is sufficient to note that, for the application to succeed, the Council must be "a person whose interests (whether pecuniary or otherwise) could be affected by the grant of land as Aboriginal land because of the claim" to Archer Bend National Park and Rokeby National Park. 2 6. The Council's applications were made in writing within the periods specified in the notices published by the Tribunal under section 4.07 of the Act in relation to the claims. The Council is a "person" for the purposes of the Act.3 The question is whether the Council has "interests" that "could be affected" by the grant of the land. Interests 7. The definition of "interested person" in section 1.03 of the Act makes it clear that the interests can be "pecuniary or otherwise". 8. In the letter dated 29 April 1994, the Chief Executive Officer wrote: "The land subject to claim is situated within the Area of Cook Shire. Council believes it has an interest in all land dealings within its Area and a role in the monitoring and advising on land use in the region of the land under claim. Council also has interests in the roads which cross the land and a responsibility to preserve, on behalf .of its residents and travellers, the access they presently enjoy. Whilst it is recognised, that should the claim succeed, the land will be leased to the Crown for the purposes of the Management of the National Park, any future management plan which includes commercial or residential activity (such as that undertaken in the Northern Territory) would, in my opinion, make the land subject to rating." See decisions on the applications by the Council to be a party to Aboriginal land claims to land near Aurukun (AB92-001 - decision dated 24 August 1992), Melville National Park (AB92-002 - decision dated 24 August 1992), various islands near Melville National Park (AB92-003 - AB92- 009, AB92-013 - decision dated 17 February 1993), former Peppan reserve (AB92-10 - decision dated 20 August 1993), Lakefield National Park (AB93-001 - decision dated 13 August 1993), Cliff Islands National Park {AB93-002 - decision dated 20 August 1 993), available Crown land near Helenvale (AB93-003 - decision dated 8 March 1994), tidal land and other areas within Lakefield National Park (AB94-004 - decision dated 13 May ·1 994), various islands near Cape Grenville (AB94-001 - decision dated 16 May 1994). Aboriginal Land Act 'l 991 section 1.03. See Local Government Act 1936 section 6(1)(ii) and Local Government Act 1993 section 35; Acts Interpretation Act 1954 section 36 definition of "person". -- 2 of 5 -- 3 9. The letter dated 31 August 1994 stated: "if the claim succeeds, Council will become responsible for the delivery of services and ensuring compliance with the relevant State Act, Councils By-Laws and Town Planning Scheme. Council believes it has an interest in any land dealings within its area and had the responsibility for the continued good government for the whole of the shire." 10. Some of the quoted paragraphs allude to pecuniary interests which the Council as the relevant local government may have in respect of the land and the provision of services to or through the land. The Australian Department of Administrative Services has advised, and an officer of the Council has confirmed, that the freehold title to the Coen Aerodrome has been transferred to the Council. Some of that land has been leased to the Civil Aviation Authority. The Aerodrome land abuts the southern boundary of Rokeby National Park. The Council has various interests of a kind contemplated by the Act. The remaining question is whether the Council's pecuniary interests "could be affected" by the grant of the land as Aboriginal land because of the claim. Could be affected J 1. As noted in decisions on previous applications by the Council, the ordinary meaning of the word "affected" is broad and as used in the context of the Act it should be read broadly. In some instances, the grant of land might result in detriment to a person's interests. In other instances, a person's interests may be enhanced, strengthened or affected in some other way by the grant of the land. In each case it could be said that the person's interests could be "affected". 12. 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 certainty) of the grant having an effect on those interests. 13. 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 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. 14. The relevant provisions in section 553 of the Local Government Act 1993 are as follows: " (1) All land is rateable land other than - vacant State land; and (b) land occupied by the State ... , except under a lease from a private person; and ( a) -- 3 of 5 -- 4 (d) Aboriginal Land under the Aboriginal Land Act 1991 ..., other than land used for commercial or residential purposes; and (e) land exempt from rating under an Act or a regulation made under this Act. (2) A regulation under subsection (1)(e) may, for example, exempt from rating land used for religious, charitable, educational or public purposes. (3) If part of a parcel of land mentioned in subsection (1)(d) is used for commercial or residential purposes and another part (the "remainder") of the parcel is used for other purposes, the remainder is not rateable land, even though the other part of the parcel is rateable land." 15. Those provisions indicate that if the land which is currently National Park land becomes Aboriginal land it will not be rateable, in whole or in part, unless all or part of the land is used for commercial or residential purposes. The expression "residential purposes" is not defined in the Local Government Act 1993, nor in the Valuation of Land Act 1944 or the Land Act 1962. If land which is not rateable now is not rateable when it becomes Aboriginal land then the Council has no pecuniary interest in the land which could be improved by the grant. If, however, the claimants are successful and use part or all of the land for "commercial or residential purposes" then it may become rateable, unless it is exempted under section 553( 1)(e). 16. The land claim applications do not establish whether the claimants in either case would use the land for commercial or residential purpose. The applications state that the claimants would: (a) look after the country for this and future generations, in accordance with Aboriginal law and custom; (b) ensure that the management of the two parks is in accordance with Aboriginal law and custom and with the plan of management to be negotiated with the Department of Environment and Heritage. 1 7. It is not possible to predict with any certainty in advance of receiving documentation, or hearing evidence, from the claimants whether they would reside on the land or whether such residence would constitute use for a "residential purpose" as that expression is used in the Local Government Act 1993. Nor is it possible to predict whether the type of National Park management which would be engaged in if the claim succeeds would involve the use of some land for commercial purposes. It is not clear whether the grant of the land would result in any increase or reduction of use of roads through the National Park or use of the iand would necessarily interfere with the use of the adjacent Coen Aerodrome land. There is, some possibility that the Council pecuniary interests could be affected in the sense that there may be some revenue potential for the Council in the land and there may be some cost to the Council in providing additional or upgraded services to or through at however, 's -- 4 of 5 -- the land claimed. Order 5 18. Pursuant to section 8.17(2) of the Aboriginal Land Act 1991, the Land Tribunal orders that the Cook Shire Council be made a party to the proceeding for: (a) the land claim to Archer Bend National Park and the western part of Rokeby National Park; and (b) the land claim to the eastern part of Rokeby National Park. Graeme Neate Chairperson Land Tribunal 30 November 1994 -- 5 of 5 --