Cook Shire Council re land claim – Cliff Islands National Park [1993] QLT 9

[1993] QLT 9 LAND CLAIM TO Cliff ISLANDS NATIONAL PARK 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 22 June 1993, the Shire Clerk 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 land described as National Park 1 6 Balclutha (Cliff Islands) (the "land claim to Cliff Islands National Park"). 2. The Tribunal has decided that the Council is an interested person in relation to the land claim. 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 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. Section 8.17 of the Act provides: "(1) ... the parties to a proceeding for the hearing of a claim under this Act are - (a) the claimants; and (b) the claimants of any other claim under this Act that is to be heard and determined with that claim; and (c) any other person who has been made a party to the proceeding the Tribunal on application the person under subsection (2). -- 1 of 8 -- (2) An interested person may, within the period specified in the notice published under section 4. 07 in relation to the claim or within such further period as the Tribunal allows, apply, in writing, to the Tribunal to be made a party to the proceeding and the Tribunal may, by order, make the person a party to the proceeding. " 2 6. it is the Land Tribunal which decides who is an "interested person" for these purposes. Section 8.18 provides: "(1) If it is necessary tor the purposes of this Act to decide whether a person is an interested person in relation to a claim under this Act, the matter is to be decided by the Land Tribunal. (2) If the Tribunal decides that a person is not an interested person in relation to a claim under this Act, the Tribunal must give the person written reasons tor its decision. " 7. 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. 8. 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". 9. The approach to be adopted when interpreting this definition is found in Section 14A of the Acts Interpretation Act 1954. That section provides: "(1) In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation. (2) Subsection ( 1) applies whether or not the purpose is expressly stated in the Act." -- 2 of 8 -- 3 10. In summary, when the Tribunal is interpreting these provisions of the Act the Tribunal must adopt a purposive rather than a literal approach, seeking the intention of the legislature by starting with the ordinary meaning of the words used but being able to depart from them if the operation of the statute on a literal reading does not conform to the legislative purpose as ascertained from the provisions of the statute and, if appropriate, extrinsic material. 1 Who is an "interested person"? 11. In the present case, the Council has applied to the Tribunal to be made a party to the proceeding for the hearing of the land claim to Cliff Islands 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 claim. The issue is whether the Council is an "interested person" in relation to that land claim. 12. 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 must be ascertained having regard to its context in the Act and to the purpose of the Act. Where appropriate, an interpretation of a term by a court may assist in deciding the meaning or scope of the term. Person 13. The Council is a Shire Council comprising Councillors and is constituted in accordance with the Local · Government Act 1936. 2 The Council is a Local Authority under that Act and so is a "body corporate" with. perpetual succession which is capable in law of suing and being sued and of doing and suffering all such other acts and things as bodies corporate may by law do and suffer. 3 2 3 See Dahlia Mining Co Ltd v Collector of Customs (1989) 90 ALR 193, at p. ·198 (Giles J), citing Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404; Tokyo Mart Pty Ltd v Campbell 11988) 15 NSWlR 275. See also Acts Interpretation Act ·1954 section 1413. See Local Government Act 1936 section 6(1 )(ii). Ibid. section 6(2). -- 3 of 8 -- 4 14. "Person" is not defined in the Aboriginal land Act 1 991 but the Acts Interpretation Act 1954 provides, in section 36: "In an Act - ... 'person' includes an individual and a corporation" and that: '"corporation' includes a body politic or corporate." 15. The Council is a "person" for the purposes of the Aboriginal land Act 1991. Interests 16. The next question is whether the Council has "interests" that could be affected by the grant of the land. 17. 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. 4 18. 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. 19. "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: 20. 4 "(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". In a letter supporting its application to be made a party to the proceeding, the Council states that it wishes to be made a party "as it is of the opinion that it has an interest in any land dealings within the area it administers" and because a grant of this particular land "would have the positive of converting it to rateable !and". See Leedaie v Lewis [1982] 1 WLR 1319, at p. 1329 !Lord Wilberforce), p. 1324 (lord Fraser of Tullybelton); In re Hampton Fuel Allotment Charity [1988] 3 WLR 513, at p. 519 (Court of Appeal). -- 4 of 8 -- 5 21 . The Local Government Act 1936 provides that, subject only to the exceptions specified in section 24(1) of that Act, "all !and is rateable for the purposes of this Act". ! infer from the Council's letter that the land is not currently rateable, presumably because it comes within one of the exceptions. 5 22. Putting to one side the first and more general ground on which the application is made, if there is a real possibility that the land could become rateable land then the Council (as the Local Authority which makes, levies and receives rates and spends the money so received) 6 would have a pecuniary interest, and possibly other interests, in the land. The Council may also, subject to the Aboriginal Land Act 1991 ,7 become responsible for the provision of services and the exercise of other functions with respect to the land and its inhabitants (if any). 8 23. 24. 7 10 11 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,9 or could "have consequences" for those interests. 10 In other words, those interests could be "acted upon; influenced" by the grant of the land. 11 eg Local Government Act 1936 section 24(1 )(i)(a) provides that land which is not rateable includes "Crown land which is unoccupied or is used for public purposes". Ibid. Part X. See Aboriginal Land Act 1991 section 2.20(1) See Local Government Act ·1936 Part XI, See The Australian Concise Oxford Dictionary, ·i 988, zt p. 16. Right Words by Stephen Murray-Smith, 2nd edn, Penguin, 1 990, at p. 17. See The Macquarie Dictionary, 2nd edn, 1 991, at p. 2 7. -- 5 of 8 -- 6 25. Various courts have observed that, depending on its context, the word "affected" can have a very wide meaning or a narrower meaning. 12 There is also authority for the view that "affected" should not be given an artificial, narrow or technical meaning. 13 The issue is what the word "affected" means when used in the definition of "interested person" in section 1.03. 26. 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") 14 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." 12 See, for example, Commissioner for Motor Transport v Kirkpatrick (1987) 11 NSWLR 427, at p, 438 (Kirby Pl 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 [1990] 1 QdR 575, 13 See, for example, Timanu Pty Ltd v Clurstock Pi:y Ltd (1988) '15 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), 14 Compare the definition of "person aggrieved by a decision" in section 3(4) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), -- 6 of 8 -- 7 Where interests could be affected in the sense of being "influenced injuriously; impaired", 15 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". 27. Confirmation of this view can be found from decisions concerning a comparable provision in the Administrative Appeals Tribunal Act 1975 (Cth). Before it was amended, section 30(1 )(c) of that Act provided that parties to a proceeding before the Administrative Appeals Tribunal (the "AAT"} included "any other person ... whose interests are affected by the decision" under review. In Phillips v Secretary, Department of Transport a Senior Member of the AAT, Mr AN Hall, observed that section 30(1 )(c) did not differentiate in any way as to the nature of the interests which are "affected". He continued: 28. 29. 15 16 17 "The ordinary meaning of the verb 'to affect' is 'to produce a material effect on'. So far as the ordinary meaning extends, the effect produced may, it seems be either adverse or beneficial. It is, of course, improbable that any person ... whose interests are not adversely affected by a decision will apply for a review. But practical considerations of that sort are not necessarily a sound basis on which to seek to limit the broad language which Parliament has otherwise chosen to use". 16 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 affected by the grant of the land. 17 See The Macquarie Dictionary. 2nd edn, 1991, at p. 27. ("1978) 23 ALR 314, at pp. 318-319; see also Re Control Investment Pl:y ltd and Australian Broadcasting Tribunal (No 1) (1980) 3 ALO 74, at p. 81 (Davies JJ. 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 l [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). -- 7 of 8 -- 8 30. The application demonstrates that the Council has interests that could be affected by the grant of the land. In particular, the Council may be able to raise revenue from rates on the land if the iand becomes Aboriginal land. Although there is apparently a State Government policy that Aboriginal land which is a national park will not be rateable, the legal position many not be so certain. 18 The Council may also, subject to the Aboriginal Land Act 1991, become responsible for the provision of services and the exercise of other functions with respect to the land and its inhabitants. Order 31. 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 Cliff Islands National Park. Graeme Neate Chairperson Land Tribunal 20 August 1993 18 See letter dated 22 July 1993 from Honourable Terry Mackenroth MLA (Minister for Housing, Local Government and Planning) to the Chairperson of the Land Tribunal. -- 8 of 8 --