Commonwealth of Australia re land claim – former Peppan Reserve [1993] QLT 5

[1993] QLT 5 LAND CLAIM TO ABORIGINAL LAND WHICH WAS FORMERl Y PEPPAN RESERVE Decision of the land Tribunal concerning the application by the Commonwealth of Australia to be made a party to the proceeding Application and decision 1. In a letter dated 24 November 1992, Ms Sue McAllan of the Australian Property Group, Department of Administrative Services, applied to the Land Tribunal (the "Tribunal") for the Commonwealth of Australia (the "Commonwealth") to be made a party to the proceeding for the hearing of the claim made by certain Aborigines to an area of Aboriginal land · situated approximately 1 5km north-east of the Weipa Community (Napranum) (the "land claim to Aboriginal land which was formerly Peppan Reserve"). 2. The Tribunal has decided that the Commonwealth is an interested person in relation to the land claim. Consequently, the Tribunal has made an order making the Commonwealth 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) Subject to section 8.26, 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 other person been made a party to the proceeding the Tribunal on application by the person under subsection (2). -- 1 of 6 -- (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 a/lows, 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. Section 8.18 of the Act states that it is for the Land Tribunal to decide who is an "interested person" for these purposes. The section provides: "(1) If it is necessary for 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 for 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". Who is an "interested person"? 9. In the present case, the Commonwealth has applied to the Tribunal to be made a party to the proceeding for the hearing of the land claim to Aboriginal land which was formerly Peppan Reserve. 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 Commonwealth is an "interested person" in relation to that land claim. 10, The elements that need to be satisfied to estabiish that an "interested person" are (a) the applicant is a "person"; and is an -- 2 of 6 -- 3 (b) the applicant has "interests" that "could be affected" by the grant of the !and under claim as Aboriginal land because of the claim. Person 11. "Person" is not defined in the Aboriginal Land Act 1991 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." 12. The Commonwealth is a "person" for the purposes of the Aboriginal Land Act 1991. Interests 13. The next question is whether the Commonwealth has "interests" that could be affected by the grant of the land. 14. The definition of "interested person" in section 1.03 of the Act makes it clear that the interests can be "pecuniary or otherwise". "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 Commonwealth has been granted a lease over approximately 3850 hectares of the land claimed. The lease was granted by the Peppan Land Trust. It commenced on 1 January 1993 and is for a term of 99 years. The lease has been obtained for the purpose of establishing the Scherger RAAF base. In a letter dated 12 February 1993, Ms McAllan advised that the iease document between the Peppan Land Trust and the Commonwealth has been registered. The Commonwealth has interests of a type contemplated by the Act. -- 3 of 6 -- 4 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. 17. 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, 1 or could "have consequences" for those interests. 2 In other words, those interests could be "acted upon; influenced" by the grant of the land. 3 18. Various courts have observed that, depending on its context, the word "affected" can have a very wide meaning or a narrower meaning. 4 There is also authority for the view that "affected" should not be given an artificial, narrow or technical meaning. 5 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 wora unqualified by any adverb (such as "injuriously" or "adversely") 6 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: 2 3 4 5 "(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. 17. 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 [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 (i'JSSC), at p. 529; see also Briggs v Batts [1986] 2 QdR 309, Stevenson v Stephens [1990] 1 QdR 575. See, for example, Timanu Pty Ltd v Clurstock Ptv I td (1988) 15 NSWLR 338, at p. 345 P. with whom Hope and McHugh JJA agreed). But see also the caution in little v Plccin 983) 52 LGRA 258, at p. 272 {Powell J). Compare the definition of "person aggrieved by a decision" in section 3(4) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). -- 4 of 6 -- 20. 21. 7 9 (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" , 7 the grant of land might result in detriment to a person and the Tribunal would advise the Minister a~cordingly. 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". 8 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. 9 See The Macquarie Dictionary. 2nd edn, 1991 • at p. 2 7. See Phillips v Secretary, Department of Transport (1378) 23 ALP. 3·14, at pp. 318-319, see a!;:;o Re Control Investment Ptv Ltd and Australian Broadcastina Tribunal (I\Jo 1) (1980) 3 ALD 74, ai: p. 81 (Davies ~IJ, 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 11 [1989] 2 OdR 512, at p. 525 (Thomas J - dissenting); Administrative and Cieri ca! Officers Association v Conn (1988) 52 NTR 5 7, at pp. 70- 71 (Kearney J). -- 5 of 6 -- 6 22. If the land claim succeeds, then the existing deed of grant of Aboriginal land will be cancelled and a new deed will be issued, possibly to new grantees as trustees. The Tribunal has not been provided with a copy of the lease to the Commonwealth, but a perusal of Part 5 of the Act suggests that the Commonwealth's interests could be affected by the grant of the land claimed. 32. Pursuant to section 8.17(2) of the Aboriginal Land Act 1991, the Land Tribunal orders that the Commonwealth be a party to the proceeding for the land claim to Aboriginal land which was formerly Peppan Reserve. Graeme Neate Chairperson Land Tribunal. 22 February 1993 -- 6 of 6 --