Cook Shire Council re land claim – Jardine River National Park [1994] QLT 10

[1994] QLT 10 LAN CLAIIV! JARDi E RIVER NA u IONAl PJli,RK Decision of the Land Tribunal concerning the application by Cook Shire Council to be made a party to the proceeding Application and decision 1. In a letter dated 27 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 an area of available Crown land described as National Park 26 Amory, or Jardine River National Park, situated at the northern tip of Cape York Peninsula (the "land claim to Jardine River National Park"). 2. The Tribunal has decided that the Council is an interested person in relation to the land claim to Jardine River National Park. Consequently, the Tribunal has made an order making the Council a party to the proceeding. 3. 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 4. The Tribunal has considered previously applications by the Council to be a party to land claim proceedings in respect of other areas of land claimed 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 Jardine River National Park. 2 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, ,,1:,88:2-013 - decision dc1ted 17 l 993), former reserve U\89":-'I 0 - decision August 19::,3;, '-'""'-afield Nati01·101' (AB93-CC':1 - ~::c,cision dateci · ~ gust 199'2), Cliff National (AB93-002 - cieci2ion dated 20 Au,Just ;;93), avaiL,1ble Crovm land near Hslenvale (AB93-003 - decision dated 8 March 1994), tidal land and other areas wicnin Lakefield National Park (AB94-004 - decision dated 13 May 1994), various islands near Cape Grenville (AB94-001 - decision dated 16 May 1 994), Aboriginal Land Act 1 991 section 1 .03. -- 1 of 4 -- ----------------------------------- ------------------ 2 5. The Council's application 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 claim. 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 6. The definition of "interested person" in section 1.03 of the Act makes it clear that the interests can be "pecuniary or otherwise". In the letter dated 27 April 1994, the Chief Executive Officer wrote: "The majority of the land under claim is within the Area of Cook Shire - Council's Northern boundary is the 11th parallel of latitude. Council believes it has an interest in all land dealings within its Area and a role in the monitoring and advising on land usage 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 recognized, 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 would, in my opinion, render the land subject to rating." 7. It is clear from the references to "a claim under this Act" and "the claim" or "that claim" in sections 8.17 and 8.18 of the Act, that the general assertion in the second quoted paragraph is insufficient to establish Council's interests in a particular land claim proceeding. Indeed, it may be doubted whether an assertion in those terms is sufficient to establish that the Council has an "interest" of the type contemplated by section 1 . 03 of the Act. 8. The third and fourth 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 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. 9. Could be affected 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 some other way grant the land. in case 1t could be said that the person's interests could "affected". See Local Government Act 1936 section 6(1 )(ii) and Local Government Act 1993 section 35; Acts Interpretation Act 1 954 section 36 definition of "person", -- 2 of 4 -- 3 10. 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. 11. 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. 12. The relevant provisions in section 553 of the Local Government Act 1993 are as follows: " ( 1) All land is rateable land other than - (a) vacant State land; and (b) land occupied by the State ... , except under a lease from a private person; and (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." 13. 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 vvhich is not rateable now is not rateable when it becomes Aboriginal land then the ncil has no interest in the land which could be improved tne grant. however, the claimants are successful and use part or all the land for "commercial or residential purposes" then it may become it is exempted under section 553( 1 )(e). -- 3 of 4 -- -- -------- 4 14. The land claim application does not establish whether the claimants would use the land for residential purposes. The application states only that the claimants would assume responsibility to "look after and use the land in accordance with Aboriginal tradition", to "manage the cultural values of the National Park and in particular to oversee and take part in cultural conservation and interpretation of the landscape, and managing and controlling visitor access to the area" and, "subject to arrangements satisfactory to the appropriate family groups, to engage in management and conservation of the natural values of the National Park". 15. It is not possible to predict with any certainty in advance of rece1vmg 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. There is, however, some possibility that the Council's 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 the land claimed. Order 16. 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 the land claim to Jardine River National Park. Graeme Neate Chairperson Land Tribunal 30 November 1 994 -- 4 of 4 --