Dr Craig Emerson (Director-General, Queensland Department of Environment and Heritage) re land claim – Simpson Desert National Park [1993] QLT 3

[1993] QLT 3 ------ ------- ----- ------------------- LAND CLAIM TO SIMPSON DESERT NATIONAL PARK Decision of the land Tribunal concerning the application by Dr Craig Emerson (Director-General, Queensland Department of Environment and Heritage} to be made a party to the proceeding Application and decision 1. In a letter dated 9 December 1992, Dr Craig Emerson applied to the Land Tribunal (the "Tribunal") 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 (NP1 Aboukir) (the "land claim to Simpson Desert National Park"). Dr Emerson is the Director-General of the Queensland Department of Environment and Heritage ("DEH"). 2. The Tribunal has decided that Dr Emerson is an interested person in relation to the land claim. Consequently, the Tribunal has made an order making him a party to the proceeding. 3. The reasons for the Tribunal's decision are set out below. They are substantially the same as the reasons given on 24 August 1992 for making Dr Emerson a party to the proceeding for the hearing of the land claim to Melville National Park. 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 8.18 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 " -- 1 of 11 -- 2 6. 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. 7. 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"? 8. Dr Emerson has applied to the Tribunal to be made a party to the proceeding for the hearing of the land claim to Simpson Desert 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 Dr Emerson is an "interested person" in relation to the land claim. 9. 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. Person 10. Section 36 of the Acts Interpretation Act 1954 defines "person" to include an "individual" and a "corporation". An "individual" is defined in that Act to mean a natural person. Dr Emerson is a "person". 11. It is apparent from his letter, however, that the application is not really made by Dr Emerson as an individual. Rather he makes the application as the Director-General of the DEH. In that capacity he has certain responsibilities which may give rise to "interests" which may be affected by the grant of the land claimed" He enclosed with his letter a submission which outlines, among other things, how the interests of the DEH might be affected a successful ciairn to the -- 2 of 11 -- 3 12. Consequently, although the application has been made by a named person and not by an officer, I assume that whoever is the occupant of the office would want to be a party to the proceeding. The distinction may not be decisive, as it appears that the holder of the office (as opposed to a named person) may be a "person" for present purposes. 1 Accordingly, Dr Emerson in his capacity as Director-General of the DEH is a "person" in the sense that the term is used in the definition of "interested person" in section 1.03 of the Act. Interests 13. The next question is whether the applicant has "interests" that could be affected by the grant of the land. 14. 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. 2 15. 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. 16. "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: 2 "(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". See Korczynski v Quik Foods Ptv ltd and Others i1985) 59 AU'i at {Smithers, Northrop and Spender JJj, following Owendale Pty ltd v Anthony {1967l '117 CLR at p.562- 4 {Windeyer J), see also p.598 J), p. 611 (0-Nen Jl; Barton v Croner Trading Pty ltd (1984) 54 AlR. 54'1, at pp.556-7 (Bowen CJ, Beaumont and Wilcox JJi, See leedaie v lewis [1982] 1 WLR 1319, at i:1c 1329 I.Lord Wil!:,eriorce), p. "1324 (lord Fraser of Tullybelton); In re Hamoton Fuel Allotment Charity [1988] 3 WLR 513, at p. 519 (Court of Appeal). -- 3 of 11 -- --- -- ----- ------ ---- --- --------------- 4 17. The ordinary meanings of "interest" 3 and the references in section 1.03 show that the term can be read broadly. The definition of "interested person", however, is not so wide as to entitle anyone who wishes to become a party to be made a party. A person must have a relevant interest. 4 18. The process for the determination of a land claim made by Aborigines is set out in Parts 4 and 8 of the Act. In summary, the process is as follows: 4 7 8 (a) if the Land Claims Registrar is satisfied that a claim to an area of land appears to be duly made (in the sense that the claim complies with relevant provisions of the Act) the Land Claims Registrar must refer the claim to the Tribunal; 5 (b) as soon as practicable after the claim is referred to the Tribunal, the Tribunal must, in accordance with requirements in the Act, give notice of the claim and cause copies of the application to be made available for public inspection; 6 (c) the Tribunal must then hear and determine the claim; 7 (d) if the claim is established, the Tribunal must recommend to the Minister for Land Management (the "Minister") that the land be granted in fee simple or by way of a lease on specified terms and conditions; 8 (e) when the Tribunal makes a recommendation for the grant of fee simple or a lease, the Tribunal must also make recommendations to the Minister about who should be appointed as trustees for the benefit of the group of Aboriginal people concerned; 9 (f) when the Tribunal makes a recommendation for the grant of fee simple or a lease, the Tribunal must advise the Minister in relation to each of the following matters: (i) 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 Eg see definitions of "interest" in The Australian Concise Oxford Dictionary, 1988, at p.559 and The Macquarie Dictionary, 2nd edn, 1991, at p.916. See R Russell v G Neate, Chairperson of Land Tribunal, decision of Land Appeal Court, 8 February 1993. Aboriginal Land Act 1991 section 4.06; see also sections 4.01 - 4.05. Ibid. section 4.07. Ibid. sections 4.08 - 4.15, 4.17, 8.12 - 8.35. !bid. section 4.16(1), (2). Ibid. section 4.16(3). (4). -- 4 of 11 -- 5 (ii) 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 (iii) the detriment to persons or communities (including other Aboriginal groups and Torres Strait Islanders) that might result from a grant of the land; and (iv) 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; 10 and (g) if the Minister is satisfied that the land, or part of the land, should be granted to the group, the Minister must direct that a deed of grant or a lease be prepared, and the Minister must appoint grantees as trustees to hold the deed of grant or lease. 11 19. In summary, it can be said that the matters on which the Tribunal must advise the Minister are those matters which the Parliament intended the Minister to have in mind when making a decision whether to grant title to land in accordance with the Tribunal's recommendation. The Tribunal is required to advise the Minister in a way that will enable the Minister to understand the issues involved when making a political decision. 20. It should be noted that the matters listed for advice in section 4. 1 6 include matters which may extend beyond the interests of some or even all of the parties to a land claim proceeding. As Justice Brennan stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (when considering comparable provisions of the Aboriginal Land Rights (Northern Territory) Act 1976), the power conferred on the Minister is not conferred for the purpose of deciding between competing claimants for title, possession or use of unalienated Crown land. Rather, it is a political decision which the Minister might make having regard to considerations of the public interest as he sees it, whether or not that interest coincides with the interests of any party. 12 21 . The Act provides that if granted land is a National Park, the grant of the land is subject to a condition that the grantees lease the land to the State for the purposes of the management of that land as a National Park under the relevant legislation. There is to be a board of management (on which the Aboriginal people particularly concerned with the land will be represented) which will prepare a management plan for the National Park 10 ibid. section 4.16(5). 11 Ibid. sections 5.01 - 5.03. 12 {1986) 162 CLR 24, at p. 63. -- 5 of 11 -- 6 land. 13 In the case of the land claim to Simpson Desert National Park, there are issues concerning the National Park which may have a bearing on the grant of the land if the Tribunal recommends the grant. 22. It is reasonable to infer from the scheme just summarised that a person whose interests are referable to one of the matters listed in section 4. 1 6 of the Act could be made a party to the proceeding if those interests could be affected by the grant of the land claimed. In other words, if, for example: (a) detriment to the person might result from a grant of the land; or (b) the grant of the land is likely to have an effect on existing or proposed patterns of the usage of land in which the person has an interest, then that person could be made a party to the proceeding. 23. The interests on which Dr Emerson relies must be found in legislation concerning the National Park. The current legislation ,is the National Parks and Wildlife Act 1975. That Act provides for the declaration of land as a National Park and for the management of 'National Parks. The Act is administered by the Minister and, subject to the Minister, by the Director of National Parks and Wildlife (the "Director"). The Director is appointed by the Governor in Council. Subject to the Minister, the Director has a range of specified functions and duties with respect to National Parks and a range of powers to carry out those functions and duties. The Director represents the Crown, may enter into contracts and may employ people. 14 Although the Director may appear before any court or in any proceedings by any officer or other person authorized by the Director 15 , the application to be a party in this proceeding is not made by the Director nor by Dr Emerson on behalf of the Director. The explanation for the application by Dr Emerson as Director-General, and not by the Director, is presumably because the Nature Conservation Act 1992 will repeal and replace the provisions of the National Parks and Wildlife Act 1975 and, among other things, abolish the office of the Director. 24. The interests listed in the submission accompanying Dr Emerson's application are based on the provisions of the Nature Conservation Act 1992 which was assented to on 22 May 1992. Some provisions of that Act have commenced to operate. 16 The bulk of the Act, including Part 4 Division 3 - "Protected areas (Aboriginal land and Torres Strait Islander land)" and related sections, has not commenced to operate, although it is 13 Aboriginal land Act 1991 section 5.20. The relevant legislation is currently the I\Jational Parks and Wildlife Act 1975. That Act will be repealed and replaced by the Nature Conservation Act 1992. 14 See National Parks and Wildlife Act 1975, Part !! - Administration. 15 16 Ibid. section 65. Part 1 - Preliminary; Part 2 - Object of the Act; Part 3 - Interpretation; Division 1 !Basic concepts) of Part 4 - Protected Areas; Division 1 (Basic concepts) of Part 5 - Wildlife and Habitat Conservation; and sections 102, 104 to 108, and 120. -- 6 of 11 -- 7 expected to commence before the determination of the land claim to Simpson Desert National Park. 25. The Nature Conservation Act 1992 will repeal the National Parks and Wildlife Act 197517 and will make appropriate amendments to the Aboriginal Land Act 1991.18 Each existing National Park will be dedicated as, or as part of, a National Park under the new Act. 19 Although the day to day administration of the Nature Conservation Act will be primarily in the hands of conservation officers and honorary protectors appointed by the Minister, it is the chief executive (that is, the Director-General of the DEH) who will have general oversight of its administration. The chief executive must, for example, keep a register of protected areas (such as National Parks (Aboriginal land)), conservation plans (such as a management plan prepared for a National Park (Aboriginal land)), conservation officers and honorary protectors. 20The chief executive may delegate to a conservation officer or an officer of the public service most of the powers under the Act 21 and must give to the Minister an annual report on the administration of the Act, which report is to be tabled in the Legislative Assembly. 22 26. The submission provided by Dr Emerson describes the interests which could be affected by the grant of the land as being or arising from such things as: 17 18 19 20 21 22 23 24 (a) the involvement of the DEH in negotiations for the lease to the Crown of the land "for the purposes of the management of the National Park land under the National Parks and Wildlife Act 1975"; 23 (b) the involvement of the DEH in the appointment of the board of management and preparation of a management plan for the National Park;24 and (c) assistance to be given by the DEH in the training of Aboriginal people in law enforcement and the appointment by the DEH of suitably trained and experienced Aboriginal people either as conservation officers or honorary protectors under the Nature Conservation Act 1992 (when that Act commences to operate). Nature Conservation Act 1992 section 158, Schedule 1. Ibid. section 159, Schedule 2. Ibid. section 164. ibid. sections 121, 7; see also sections 122, 1 24. ibid. section 128. !bid. section 126. See Aboriginal Land Act 1991 section 5.20(1 l(a). Note: the Nature Conservation Act 1992 will replace that provision with an obligation that the land be leased to the State for the purposes of the management of the National Park land under that Act. !bid. section 5.20. -- 7 of 11 -- 8 27. These matters constitute interests of the DEH, but are they Dr Emerson's interests? The Public Service Management and Employment Act 1988 provides that each department shall be under the control of a chief executive who (subject to the relevant Minister) is "responsible for the efficient and proper management and functioning of the department in accordance with this Act and every other Act that provides for matters relevant to any activity within the administration of the department." Subject to the relevant legislation, Dr Emerson is "authorised to do and suffer ... all such acts and things as he thinks necessary or expedient to the proper discharge of his responsibility". He has responsibility for, among other things, determination of priorities, control of the DEH 1 s financial and other resources, selection and recruitment of certain staff, the determination of the number and deployment and the location of headquarters of staff, qualifications required for holding offices and duties attaching to offices, training and development of staff and the maintenance of proper records. 25 28. The application by Dr Emerson and the pieces of legislation under which the National Park is or will be administered show that the DEH and hence Dr Emerson as its Director-General has interests in the land claimed. 29. 30. 25 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, 26 or could "have consequences" for those interests. 27 In other words, those interests could be "acted upon; influenced" by the grant of the land. 28 Public Service Management and Employment Act 1988 sections 11, 12. 26 See The Australian Concise Oxford Dictionary, 1988, at p. 16. 27 Right Words by Stephen Murray-Smith, 2nd edn, Penguin, 1990, at p. 17. 28 See The Macquarie Dictionary, 2nd edn, 1991, at p. 27. -- 8 of 11 -- 9 31 . Various courts have observed that, depending on its context, the word "affected" can have a very wide meaning or a narrower meaning. 29 There is also authority for the view that "affected" should not be given an artificial, narrow or technical meaning.30 32. The issue is what the word "affected" means when used in the definition of "interested person" in section 1.03. The following caution issued by Justice Powell of the New South Wales Supreme Court must be borne in mind: "One must accept that, as a matter of ordinary use the word 'affected' is not a word of art, and is capable of a very large meaning. . .. It does not, however, follow that, when one is called upon to construe the word, one must always attribute to it the widest possible connotation. On the contrary, so it seems to me, while the context in which the word appears may, on occasion, render it legitimate to accord to the word such a wide connotation, the very fact that the word is of so imprecise meaning suggests to me that, in every case,· the appropriate meaning to be given to it will at least be suggested, if not dictated, by the context in which it appears ".31 33. 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") which would suggest that only persons whose interests could be injured or detrimentally affected could be interested persons. 32 Second, the scheme of the Act suggests a broader approach. As noted earlier, 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: 29 "(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, 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 !NSSC), at p. 529; see also Briggs v Batts [1986] 2 QdR 309, Stevenson v Stephens [1990] 1 QdR 5 7 5. 30 See, for example, Timanu Pty Ltd v C!urstock Ptv ltd ('i 988) 15 NSWLR 3-38, at p. 345 P, with whom Hope and McHugh JJA agreed). 31 Little v Picciri (1983) 52 LGRA 258, at p. 272.. 32 Compare the definition of "person aggrieved by a decision" in section 3(4) of the ADJR Act, discussed at paragraph 45. -- 9 of 11 -- (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." 10 Where the grant of land might result in detriment to a person, 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". 33 34. To meet the criteria of an "interested person" it also 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. 35. In his application, Dr Emerson states that he does not have any matters of detriment that he wishes to have considered by the Tribunal. The , I submission which he enclosed with the application outlines a range of ways in which the interests of the DEH might be affected by a successful claim to the land. As noted earlier in these reasons, the anticipated effects include the involvement of the DEH in negotiating a lease of the land and in the appointment of the board of management and the preparation of a management plan for the National Parks. DEH will encourage research into traditional Aboriginal land management practices and other aspects of Aboriginal activity on the land. DEH may also assist in the training of Aboriginal people in law enforcement. 36. The general import of the submission is that the interests of the DEH would be enhanced by Aboriginal ownership of the land. For example, the submission states that: (a) it is anticipated that environmentai research, monitoring and management programs on the National Park will be enhanced through the input of Aboriginal knowledge and expertise; and 33 See Phillips v Secretary. Department of Transport (1978) 23 ALR 314, at pp. 318-319; see also Re Control Investment Pty ltd and Australian Broadcasting Tribunal (No 1) (1980) 3 ALO 74, at p. 81 {Davies J). -- 10 of 11 -- 1 1 (b) on the basis of experience in National Parks elsewhere, it is anticipated that Aboriginal involvement in the presentation of the environment and culture of a National Park will enhance the experience of visitors; and (c) it is anticipated that Aboriginal ownership of and an Aboriginal presence on the National Park would lead to a greater surveillance of the National Park with regard to any breaches of legislation or management plans. 37. The DEH also expects that a successful claim and the subsequent joint management of the National Park with the Aboriginal owners will have regional implications as there is potential for cross-border management arrangements to be negotiated with conservation agencies and Aboriginal groups in both South Australia and the Northern Territory. 38. The application clearly demonstrates that the DEH, and the applicant as the chief executive of the DEH, have interests that could be affected by the grant of land as Aboriginal land because of the land claim to Simpson Desert National Park. Order 39. For the reasons given above, Dr Craig Emerson as Director-General of the Queensland Department of Environment and Heritage is an interested person in relation to the land claim to Simpson Desert National Park. Pursuant to section 8.17(2) of the Aboriginal Land Act 1991, the Land Tribunal orders that Dr Emerson be party to the proceeding for the land claim to Simpson Desert National Park. Graeme Neate Chairperson Land Tribunal. 18 February 1993 -- 11 of 11 --