Civil Aviation Authority re land claim – eastern part of Rokeby National Park [1994] QLT 9

[1994] QLT 9 LAND CLAIM TO THE EASTERN PART OF ROKEBY NATIONAL PARK Decision of the Land Tribunal concerning the application by the Civil Aviation Authority to be made a party to the proceeding Application and decision 1. In a letter dated 1 2 October 1 994, the solicitors acting for the Civil Aviation Authority applied to the Land Tribunal (the "Tribunal") for the Civil Aviation Authority 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"). Further information in support of the application was provided by letter dated 18 November 1 994 from the solicitors. 2. The Tribunal has decided that the Civil Aviation Authority is an interested person in relation to the land claim to the eastern part of Rokeby National Park. Consequently, the Tribunal has, by order, made the Civil Aviation Authority 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 Aboriginal Land Act 1991 (the "Act") specifies which categories of persons are parties to a proceeding for the hearing of a land claim made under the Act and 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. 5. 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 the Tribunal proceeding. made an order making person a party to the -- 1 of 6 -- 2 6. 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". Who is an "interested person"? 7. The Civil Aviation Authority has applied to the Tribunal to be made a party to the proceeding for the hearing of the land claim to the eastern part of Rokeby National Park. The application was made in writing within the period specified in the notice published by the Land Tribunal under section 4.07 of the Act in relation to the land claim. The issue is whether the applicant is an "interested person" in relation to that claim. 8. 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 meaning of each of those terms is to be determined having regard to its context in the Act and to the purpose of the Act. Person 9. "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" 10. The Civil Aviation Authority is a body corporate with perpetual succession established under the Civil Aviation Act 1988 (Cth). The Civil Aviation Authority is a "person" for the purposes of the Aboriginal Land Act 1991. Interests 11. The next question is whether the Civil Aviation Authority has "interests" that couid be affected by the grant of the land. 12. The words "interest" and "interests" have been held to be words of "uncertain" meaning or "capable of many meanings", so that the -- 2 of 6 -- 3 meanings which they bear vary according to their context. 1 13. 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. 14. "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". 15. The application states that the Civil Aviation Authority has a leasehold interest over part of the land contained in Lot 1 on RP 711 02 and Lots 2 and 3 on RP 714268, Parish of Sidmouth, County of Love!, on which is located a Non-Directional Beacon. The facility is a navigational aid for aircraft and is owned and operated by the Civil Aviation Authority as part of the Coen Aerodrome facilities. Other information provided by the applicant's solicitors shows that the facility is on a 1.002 hectare block near the airstrip. The airstrip is located near the southern boundary of the claimed land, between the claimed land and Love! Holding. The Civil Aviation Authority has interests in land near to the claimed land. Could be affected 16. 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 See Leedale v Lewis [1982] 1 WLR 1319, at p, 1329 (Lord Wilberforce), p, 1324 (Lord Fraser of Tullybelton); In re Hampton Fuel Allotment Charity [1 988] 3 WLR 513, at p, 519 (Court of Appeal). -- 3 of 6 -- 4 contemplated by the applicant. 17. 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,2 or could "have consequences" for those interests. 3 In other words, those interests could be "acted upon; influenced" by the grant of the land. 4 18. Various courts have observed that, depending on its context, the word "affected" can have a very wide meaning or a narrower meaning. 5 There is also authority for the view that "affected" should not be given an artificial, narrow or technical meaning. 6 The issue is what the word "affected" means when used in the definition of "interested person" in section 1.03. 19. For two reasons the word "affected" in this context should be read broadly. First, the definition uses the word unqualified by any adverb (such as "injuriously" or "adversely") 7 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: 3 4 "(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 See The Australian Concise Oxford Dictionary, 1988, at p. 16. Right Words by Stephen Murray-Smith, 2nd edn, Penguin, 1990, at p. 1 7. See The Macquarie Dictionary, 2nd edn, 1991, at p. 27. See, for example, Commissioner for Motor Transport v Kirkpatrick (1987) 11 NSWLR 427, at p. 438 (Kirby P) and p. 446 (Mahoney JA) citing Umina Beach Bowling Club Ltd v Ryan [1 984] 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 [1990] 'l QdR 575. See, for example, Timanu Pty Ltd v Clurstock Pty Ltd (1988) 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). Compare the definition or "person aggrieved by a decision" in section 3(4) ot the Administrative Decisions (Judicial Review) Act ·1 977 {Cth). -- 4 of 6 -- 20. 21. (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." 5 Where interests could be affected in the sense of being "influenced injuriously; impaired", 8 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". 9 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. 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 See The Macquarie Dictionary, 2nd edn, 1991, at p. 27. See Phillips v Secretary, Department of Transport (1978) 23 ALR 314, at pp. 3 'l 8-319; see also Re Control Investments Pty Ltd and Australian Broadcasting Tribunal (l'lo 1) (1980) 3 ALD 74, at p. 81 (Davies J). -- 5 of 6 -- 6 affected by the grant of the land .10 22. The solicitors for the Civil· Aviation Authority expressed their client's concern to ensure that, if the claim succeeds, no part of the claim or any activity proposed to be conducted on the land the subject of the claim will adversely affect the operation of the Non-Directional Beacon for which it has responsibility and upon which aviation in the area relies. In particular, the Authority wishes to ensure that the terms of any management plan for the Rokeby National Park do not permit any activity that might interfere with the Non-Directional Beacon (such as grazing of animals, use of vehicles in the area, erection of structures near the facility, and electrical interference with operation of the facility). Guidelines about siting and other restrictions for radio navigation aids suggest that, given the distance of the Non-Directional Beacon from the boundary of the land claimed, there is little likelihood of interference with the Beacon as a consequence of use of the National Park land. However, as there is some prospect that the Authority's interests could be affected by the grant (and subsequent use) of the claimed land, the Authority satisfies the criteria to be made a party to the land claim proceeding. Order 23. Pursuant to section 8.17(2) of the Aboriginal Land Act 1991, the Land Tribunal has decided that the Civil Aviation Authority is an interested person in relation to the land claim to the eastern part of Rokeby National Park. Consequently, the Tribunal orders that the Civil Aviation Authority be made a party to the proceeding. Graeme Neate Chairperson Land Tribunal. 30 November 1994 10 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) [1989] 2 QdR 512, at p. 525 (Thomas J - dissenting); Administrative and Clerical Officers Association v Conn (1988) 52 NTR 57, at pp. 70-71 (Kearney J). -- 6 of 6 --