Alice Burton and Graham Burton re land claim – Melville National Park [1992] QLT 6

[1992] QLT 6 LAND CLAIM TO MELVILLE NATIONAL PARK Decision of the land Tribunal concerning the application by Alice Burton and Graham Burton to be made parties to the proceeding Application and decision 1. In an undated letter sent by facsimile on 14 August 1992, Alice Burton and Graham Burton 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 4 (NP4 Melville) (the "land claim to Melville National Park"). 2. The Tribunal has decided that Ms and Mr Burton are not interested persons in relation to the land claim. Consequently, the Tribunal has not made an order making them parties 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 the claimants of any other claim under this Act that is to be heard and determined with that claim; and -- 1 of 27 -- 2 (c) any other person who has been made a party to the proceeding by the Tribunal on application by the person under subsection (2). (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. " 6. Section 8.26 concerns the striking out of a party to a proceeding who has failed to appear at a preliminary conference or at the hearing of a proceeding. That section is not relevant for present purposes. 7. 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. " 8. 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. -- 2 of 27 -- 3 9. 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". 10. 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. " 11. Section 148(1) of the Acts Interpretation Act 1954 allows consideration to be given to extrinsic material which is capable of assisting in the interpretation of a provision of an Act: (a) if the provision is ambiguous or obscure - to provide an interpretation of it; or (b) if the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable - to provide an interpretation that avoids such a result; or (c) in any other case - to confirm the interpretation conveyed by the ordinary meaning of the provision. 12. The extrinsic material referred to in section 148 includes the explanatory notes to the Aboriginal Land Bill 1 991 and the second reading speech on that Bill made by the Minister for Family Services and Aboriginal and Islander Affairs. 13. In determining whether consideration should be given to extrinsic material and in determining the weight to be given to extrinsic material regard is to be had to the desirability of a provision being interpreted as having its "ordinary meaning", that is, "the ordinary meaning conveyed by a provision having regard to its context in the Act and to the purpose of the Act". 1 Acts Interpretation Act 1954 section 148(2), (3). -- 3 of 27 -- 4 14. 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. 2 Who is an "interested person"? 15. In the present case, Ms Burton and Mr Burton have applied to the Tribunal to be made a party to the proceeding for the hearing of the land claim to Melville 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 they are "interested persons" in relation to that land claim. 1 6. 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. None of those terms is a technical term, so the ordinary meaning of each is to be determined 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 17. 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. Ms Burton is a "person", as is Mr Burton. 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 (1988) 15 NSWLR 275. -- 4 of 27 -- 5 Interests 18. The next question is whether the applicant has "interests" that could be affected by the grant of the land. 19. 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. 3 20. Definitions in dictionaries of the noun "interest" confirm that the word has a range of meanings in its ordinary usage. The Australian Concise Oxford Dictionary includes the following definitions: 4 "1. legal concern, title, right, (in property); pecuniary stake (in commercial undertaking etc.); declare an or one's ~ (in an undertaking, before discussion of it); vest 2 ed interests. 2. advantage, profit, (it is (in or to) your interest to go; look after one's own interest); in the ~ (s) of, as something that is advantageous to. 3. thing in which one is concerned; principle in which a party is concerned; party having a common interest (the brewing interest). 4. selfish pursuit of one's own welfare; self-interest. 5. concern, curiosity, (take an interest, no interest, in); quality exciting these or holding one's attention (this has no great interest for me, is of no interest to me); Lose interest. 6. money paid for use of money lent or for not exacting repayment of debt. " 4 The Macquarie Dictionary includes the following definitions: "1. the feeling of one whose attention or curiosity is particularly engaged by something: to have great interest in a subject. 2. a particular feeling of this kind: a man of varied intellectual interests. 3. the power of exciting such feeling; interesting quality: questions of great interest. 4. concernment, See Leedale v lewis [1982] 1 WLR 1319, at p. 1329 (Lord Wilberforce), p. 1324 (Lord :=raser of Tullybelton); In re Hampton Fuel Allotment Charity [1988] 3 WLR 513, at p. 519 (Court of Appeal). The Australian Concise Oxford Dictionary, 1988, at p. 559. -- 5 of 27 -- 6 importance, or moment: a matter of primary interest. 5. a business, cause, or the like, in which a number of persons are interested. 6. a share in the ownership of property, in a commercial or financial undertaking, or the like. 7. any right of ownership in property, commercial undertakings, etc. 8. a number or group of persons, or a party, having a common interest: the banking interest. 9. something in which one has an interest, as of ownership, advantage, attention, etc. 10. the relation of being affected by something in respect of advantage or detriment: an arbitrator having no interest in the outcome. 11. benefit or advantage: to have one's own interest in mind. 12. regard for one's own advantage or profit; self-interest: rival interests. 13. Comm. a. payment, or a sum paid, for the use of money borrowed (the principal), or for the forbearance of a debt. b. the rate per cent per unit of time represented by such payment. 14. something added or thrown in above an exact equivalent. 15. Obs. influence from personal importance or capability; power of influencing the action of others. 16. in the interest (or interests) of, on the side of what is advantageous to; on behalf of: in the interest of good government. " 5 21. 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. 22. "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 rightr power or privilege overr or in relation tor the land; The Macquarie Dictionary. 2nd edn. 1991, at p. 916. -- 6 of 27 -- 7 and includes - (c) a permit or licence issued in relation to the land; and (d) a mining interest". 23. The ordinary meanings of "interest" 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. Section 8. 17 operates to exclude, and can be contrasted with inclusive provisions in some other statutes. For example, section 123 of the Environmental Planning and Protection Act 1979 (NSW) provides that "any person" may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of that Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach. 6 24. What types of interest can provide the basis for an order that a person be made a party to the proceeding for the hearing of a land claim? As noted earlier, the answer to that question is to be found by having regard to the context of the provision in the Act and to the purpose of the Act. 25. In general terms, the purpose of the Act is to provide a scheme by which certain areas or categories of land can be granted to Aboriginal people. That much is clear from the long title to the Act 7 as well as the preamble to and the substantive provisions of the Act. 26. The preamble refers to the occupation, use and enjoyment of land by Aboriginal people "since time immemorial in accordance with Aboriginal tradition" and describes the dispossession and dispersal of many Aboriginal people after European settlement. The preamble states that some Aboriginal people have links to or requirements for land. It concludes: See F Hannan Pty Limited v The Electricity Commission oi' New South Wales {No 3) (1985) 66 LGRA 306, at pp. 310-311, 313 (Street CJ). An Act providing for the grant, and the claim and grant, of land as Aboriginal land, and for other purposes. -- 7 of 27 -- 8 "(10) It is, therefore, the intention of the Parliament to make provision, by the special measures enacted in this Act, for the adequate and appropriate recognition of the interests and responsibilities of Aboriginal people in relation to land and thereby to foster the capacity for self- development, and the self-reliance and cultural integrity, of the Aboriginal people of Queensland. " 27. Although the words of a preamble to a statute are of limited use in the interpretation of the operative provisions of a statute, particularly where the operative words of the statute are plain and clear, a court may obtain assistance from the preamble to determine a statutory purpose and object. 8 28. In this case, however, the purposes or objects of the Act do not resolve the issue of who can be made a party to the hearing of a land claim. That issue must be determined in light of the statutory scheme by which effect is given to the policy and, in particular, the context of sections 8.17 and 8.18 of the Act. 29. 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: 10 (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; 9 (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;10 See Wacando v The Commonwealth (1981i 148 CLR 1, at pp. 18-16 {Gibbs CJ), p. 23 {Mason J); see also Bowtell v Goldsbrough, Mort & Co Ltd (1905) 3 CLR 444, at p. 451 (Griffith CJ), Southern Centre of Theosophy Inc v South Australia (1979) 145 CLR 2.46, at p. 258 {Gibbs J); Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 (House of Lords). Aboriginal Land Act 1991 section 4.06; see also sections 4.01 - 4.05. Ibid. section 4.07. -- 8 of 27 -- 11 9 (c) the Tribunal must then hear and determine the claim; 11 (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; 12 (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; 13 (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 (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; 14 and Ibid. sections 4.08 - 4.15, 4.17, 8.12 - 8.35. 12 Ibid. section 4.16(1 ), (2). 13 Ibid. section 4.16(3), (4). 14 Ibid. section 4.16(5). -- 9 of 27 -- 10 (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. 15 30. A similar scheme is found in sections 50 and 11 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). Section 50(1 )(a) provides that, where an , Aboriginal Land Commissioner finds that there are Aboriginals who are the traditional Aboriginal owners of the land claimed, the Commissioner makes recommendations to the relevant Minister for the granting of that land to a Land Trust (or Land Trusts). Section 50(3) provides: "In making a report in connexion with a traditional land claim the Commissioner shall have regard to the strength or otherwise of the. traditional attachment by the claimants to the land claimed, and shall comment on each of the following matters: (a) the number of Aboriginals with traditional attachments to the land claimed who would be advantaged, and the nature and extent of the advantage that would accrue to those Aboriginals, if the claim were acceded to either in whole or in part; (b) the detriment to persons or communities including other Aboriginal groups that might result if the claim were acceded to either in whole or in part; (c) the effect which acceding to the claim either in whole or in part would have on the existing or proposed patterns of land usage in the region; and (d) where the claim relates to alienated Crown land - the cost of acquiring the interests of persons (other than the Crown) in the land concerned. " 15 Ibid. sections 5.01 - 5.03. -- 10 of 27 -- 11 31. Where the Commissioner recommends that land shouid be granted to a land Trust and the Minister is satisfied that the land should be so granted, the Minister shall establish a Land Trust and recommend to the Governor-General that a grant of title to the land be made to the land Trust. 16 32. The High Court has considered those provisions on a number of occasions and observations by various Justices are apposite to the present case. In The Queen v Toohey; Ex parte Menelinq Station, Chief Justice Gibbs wrote: "To enable the Minister to give proper consideration to those matters, the Commissioner is required to comment, and it is to be expected that he will do so in a way that will enable the Minister to understand the issues involved and the judgment which the Commissioner has formed with regard to the matters upon which the comment is made ". 17 33. Justice Mason wrote that, in imposing the duty on the Commissioner to comment on the matters specified in section 50(3), "Parliament was at pains to ensure that comment on those matters emerged in the report. The four matters were clearly seen as the four crucial considerations which could countervail the fairness and justice of making a grant to a Land Trust. By ensuring comment by the Commissioner on these matters Parliament sought to avoid the possibility that important matters of policy would be overlooked". 18 34. Justice Wilson (with whom Justice Murphy agreed) referred to "the political character" of a decision to grant Aboriginal land and described the matters listed in section 50(3) as "matters which expose for the consideration of the Minister the implications of a decision by him to make a grant" .19 Justice Brennan also referred to those matters as 16 Aboriginal land Rights (Northern Territory) Act 1976 section 11. 17 18 19 (1982) 158 CLR 327, at p. 334. Ibid at p. 339. Ibid at p. 349. -- 11 of 27 -- 12 "factors which are relevant to a political decision, a decision which has regard to all circumstances relevant to the question whether a grant should be made". 20 The weighing of all the relevant considerations is a matter for a Minister, particularly as,the question for decision is "pregnant with political controversy" .21 35. In a subsequent case, Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Justice Mason stated that the requirement that the Commissioner comment in his report on the matters enumerated in section 50(3): "recognizes that the granting of land to a Land Trust may adversely affect the interests of many people, in some cases in a very substantial way. The legislature was clearly concerned that the Minister should not overlook. crucial considerations which might counterbalance or outweigh the fairness and justice of granting the land when making his decision .... Accordingly, it provides the means whereby such factors would be analyzed and drawn to his attention for the purpose of having them taken into account". 22 36. Of course, as Justice Brennan noted, the matters for comment relate both to the advantages to some people and the detriment to others which might follow from the making of a grant. The important point is that the scheme of the Act provides for the Minister to give consideration to the comments on those matters made in reports on land claims. 23 37. Justice Deane described the role of the Minister as being to weigh "the claims in justice and morality" of the relevant Aborigines against any "competing claims or considerations, including specific and identified detriment to others, which might militate against the grant". The function of the Aboriginal Land Commissioner is to make an evaluation of the evidence in relation to detriment to others. 24 In his view, the Minister is "bound to advert to, and entitled to rely upon" the comments 20 Ibid at pp. 360-1. 21 Ibid at p. 362. 22 (1986) 162 CLR 24, at p. 44. 23 lbidatpp.56-7. 24 Ibid at p. 68. -- 12 of 27 -- 13 in the Commissioner's report when the Minister is assessing the significance of any likely detriment to others. 25 38. Although one should be careful in interpreting the provisions of one Act by reference to judicial statements about other legislation, 26 the similarities between sections 4.16, 5.01 and 5.02 of the Act and parts of sections 50 and 11 of the Aboriginal Land Rights (Northern Territory) Act 1976 are such · that the passages just quoted also apply to the comparable provision of the Aboriginal Land Act 1991 . Indeed they may apply with even more force, as the Chairperson is to "advise" the Minister in respect of the matters specified and not only "comment on" those matters. 39. In summary, it can be said that the matters on which the Chairperson of the Land 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, or a lease of, land in accordance with the Chairperson's recommendation. The Chairperson is required to advise the Minister in a way that will enable the Minister to understand the issues involved when making a political decision. 40. 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 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. 27 41 . 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: 25 Ibid at p. 69; see also at p. 30 (Gibbs CJ), at p. 44 (Mason J), at p. 57 (Brennan J). 26 See e.g. Secretary, Department of Foreign Affairs and Trade v Styles (1989) 88 ALR 621, at p. 627 (Bowen CJ and Gummow J), DC Pearce and RS Geddes Statutory Interpretation in Australia, 3rd edn, 1988, para 1 .6. 27 (1986) 162 CLR 24, at p. 63. -- 13 of 27 -- 14 (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. 42. The range of interests to which the definition refers may be broad but, read in the context of the Act, does not include all of the meanings quoted from dictionaries at paragraph 20 of these reasons. It does not, for example, include meanings such as "money paid for the use of money lent or for not exacting repayment of debt", or "a number or group of persons, or a party, having a common interest". Nor does it include "concern", "curiosity" or "attention". Consequently, just because a person's attention or curiosity is particularly engaged by the land claim or some aspect of it, that person is not an "interested person" who may be made a party to the proceeding for the hearing of that land claim. A mere intellectual concern about the land claim would not suffice. 43. It is not appropriate, and may not be possible, to exhaustively list all the interests or even the classes of interest to which the definition refers. Those interests clearly include interests in the land claimed and pecuniary interests (such as commercial undertakings) on the land which may be affected by the grant of the land. 28 It may include more, such as interests which are not proprietary or pecuniary but which are referable to a matter listed in section 4.16(5) of the Act. What else it includes can best be resolved on a case by case basis. 44. Extrinsic materials do not assist in defining the scope of the definition of "interested persons" any more precisely. The Explanatory Notes merely paraphrase sections 8.17 and 8.18 of the Act. The only reference in the Minister's second reading speech to parties was the Minister's statement that "the Land Tribunal will enable all parties to a particular claim to participate in a proper public process". 29 28 For example, a tourist enterprise: see Fraser Island Defenders Organization Ltd v Hervey Bay Town Council [1983] 2 QdR 72. 29 Legislative Assembly, Debates, 22 May 1991, p. 7773. -- 14 of 27 -- 15 45. Read in the context of the purpose and scheme of the Act, the definition of "interested person" does not include a person who does not have a personal (though not necessarily unique) and relevant interest which would be affected if the land was granted. Sections 8.17 and 8.18, expressed as they are in exclusive terms, do not extend to persons who have no more than sympathy for, criticism of or intellectual concern about the scheme or purpose of the Act. Proceedings before the Land Tribunal are to determine particular land claims, not to ventilate arguments about the policy of the legislation. 46. Support for that conclusion can be drawn from leading cases on the standing of private persons to bring proceedings to enforce the performance of a public duty or to restrain another citizen from breaking the criminal law or to challenge the validity of an Act of Parliament. 30 Those cases are distinguishable from an application under section 8.17 of the Act because, in the present case, the applicants are not seeking to commence proceedings but only to be joined to a proceeding already commenced by the claimants. Aspects of those decisions, however, should be mentioned as indicating an appropriate approach to the issue. 47. The common law on standing to commence proceedings, as stated by Chief Justice Gibbs in Onus v Alcoa of Australia Limited, is as follows: 30 31 ''.A plaintiff has no standing to bring an action to prevent the violation of a public right if he has no interest in the subject matter beyond that of any other member of the public; if no private right of his is interfered with he has standing to sue only if he has a special interest in the subject matter of the action". 31 See decisions of the High Court in Australian Conservation Foundation Incorporated v Commonwealth of Australia (1980) 146 CLR 493 (the "ACF Case"), Onus v Alcoa of Australia Limited (1981) 149 CLR 27 ("Onus v Alcoa"), and Davis v Commonwealth of Australia (1986) 61 ALJR 32 (Gibbs CJ); see also decisions of the Federal Court in United States Tobacco Co v Minister for Consumer Affairs (1988) 83 ALR 79, Australian Conservation Foundation v Minister for Resources (1989) 19 ALD 70, Yates Security Services Pty Ltd v Keating (1990) 98 ALR 68; and decision of the Supreme Court of Queensland in Central Queensland Speleological Society incorporated v Central Queensland Cement Pty Ltd (No 1) [ 1989] 2 QdR 51 2, Fraser island Defenders Organisation Ltd v Hervey Bay Town Council [1983] 2 QdR 72. (1981) 149 CLR, at pp. 35-6, see also ACF Case (1980) 146 CLR 493, at pp. 530-1 (Gibbs J), pp. 537-8 (Stephen J), pp. 547-8 (Mason J). -- 15 of 27 -- 16 48. The relevance of those cases, by analogy at least, is found in the descriptions by the High Court of what constitutes a "special interest" for that purpose. As Chief Justice Gibbs pointed out, the rule is a flexible one since the question what is a "sufficient interest" will vary according to the nature of the subject matter of the litigation. 32 Similarly, Justice Mason stated that the cases are "infinitely various" and "so much depends in a given case on the nature of the relief which is sought, for what is a sufficient interest in one case may be less than sufficient in another". 33 49. The effect of those cases can be summarised as follows: 32 33 34 35 36 37 38 (a) a person must have a special interest in the subject matter of the action, but a mere intellectual or emotional concern or a belief, however genuine or strongly felt, does not constitute an interest, 34 though a special interest is none the less sufficient if it is accompanied by an emotional or intellectual concern; 35 (b) it is not necessary that the person's interest be unique;36 (c) a person will in general have a sufficient interest if the person can show actual or apprehended injury or damage to his property, or proprietary rights, to his business or economic interests and perhaps his social or political interests; 37 and (d) a cultural or historical interest may be sufficient in certain cases. 38 (1981) 149 CLR, at p. 36; see also p. 42 (Stephen J). Robinson v Western Australia Museum (1977) 138 CLR, at pp. 327-8, reiterated in the ACF Case (1980) 146 CLR, at pp. 547-8 and quoted with approval subsequently, eg see Onus v Alcoa (1 981 ) 149 CLR, at p. 54 (Aickin J), p. 63 (Wilson J), p. 7 5 (Brennan J). ACF case (1980) 146 CLR, at pp. 527, 530 (Gibbs CJ), see also p. 548 (Mason J), p. 539 (Stephen J); Onus v Alcoa (1981) 149 CLR, at pp. 36-7 (Gibbs CJ), p. 53 (Aickin J), pp. 61-2 (Wilson J), pp. 72-4 (Brennan J); Davis v Commonwealth (1986) 61 ALJR 32, at pp. 35-6; see also Yates Security Services Pty Ltd v Keating (1990) 98 ALR 68, at p. 76 (Lockhart J), p. 88 (Morling J). Onus v Alcoa (1981) 149 CLR, at p. 37 (Gibbs CJ), pp. 41-2 (Stephen J). ACF Case (1980) 146 CLR, at p. 539 (Stephen J); Onus v Alcoa (1981) 149 CLR at p. 74 (Brennan J). ACF Case (1980) 146 CLR, at pp. 547-8 (Mason J); see also Onus v Alcoa (1981) 149 CLR, at p. 54 (Aickin J). Onus v Alcoa (1981) 149 CLR, at p. 62 (Wilson J). -- 16 of 27 -- 17 While the tests to be applied to satisfy sections 8.17 and 8.18 of the Act may not be as strict as those just stated, the common law tests provide a useful standard for present purposes. 50. As Justice Brennan said in Onus v Alcoa: "A plaintiff must show that he has been specially affected, that is, in comparison with the public at large he has been affected to a substantially greater degree or in a significantly different manner. Whether a plaintiff has shown a sufficient interest in a particular case must be a question of degree, but not a question of discretion. "39 51. The Full Federal Court, when considering a use of the word "interests" in the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the "ADJR Act") - in statutory provIsIons similar to the definition of "interested person" in the Aboriginal Land Act 1991 40 - has stated that the words "interests" and "interested" are not used in those provisions as if they were "mere terms of common parlance". 39 40 41 "The term "interest" has long been an expression used in the law with respect to parties so as to require an involvement with a case greater than the concern of a person who is a mere intermeddler or busybody. Nevertheless, the criterion for standing prescribed by the [ADJR Act] is not a restrictive one. The broadest of technical terms has been selected. The necessary interest need not be a legal, proprietary, financial or other tangible interest. Neither need it be peculiar to the particular person. "41 Onus v Alcoa ( 1981) 149 CLR, at pp. 7 4-5. The Court was considering sections of the ADJR Act concerning "a person interested in a decision ... ": section ·12; and "a person aggrieved", a term defined to include "a person whose interests are adversely affected by the decision": sections 3(4), 5 and 6. United States Tobacco Co v Minister for Consumer Affairs (1988) 83 ALR 79, at p. 86 (Davies, Wilcox and Gummow JJ). See also Australian Conservation Foundation v Minister for Resources (1989) 19 ALD 70, at p. 72 (Davies J). -- 17 of 27 -- 18 52. The ADJR Act defines "a person aggrieved by a decision" to include "a person whose interests are adversely affected" by the decision. The Full Federal Court quoted with approval a passage from a decision of Justice Ellicott concerning the construction of the words "a person who is aggrieved" as used in the ADJR Act. His Honour said: '1The words 'a person who is aggrieved' should not, in my view, , be given a narrow construction. They should not, therefore, be confined to persons who can establish that they have a legal interest at stake in the making of the decision. It is unnecessary and undesirable to discuss the full import of the phrase. I am satisfied from the broad nature of the discretions which are subject to review and from the fact that the procedures are clearly intended in part to be a substitution for the more complex prerogative writ procedures that a narrow meaning was not intended. This does not mean that any member of the public can seek an order of review. I am satisfied, however, that it at least covers a person who can show a grievance which will be suffered as a result of the decision complained of beyond that which he or she has as an ordinary member of the public. In many cases that grievance will be shown because the decision directly affects his or her existing or future legal rights. In some cases, however, the effect may be less direct. It may affect him or her in the conduct of a business or may, as I think is the case here, affect his or her rights against third parties. "42 Those remarks have been applied in subsequent decisions.43 53. In another analogous area (standing for the purposes of the Administrative Appeals Tribunal Act 1975 (Cth)), Justice Davies considered statutory provisions concerning persons whose "interests are affected." His Honour stated: 42 Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 36 ALR 64, at p. 79. 43 See Ricegrowers Co-operative Mills Ltd v Bannerman {1981) 38 ALR 535, at p. 540 (Bowen CJ and Franki J); Lamb v Moss (1983) 49 ALR 533; Ogle v Strickland (1987) 71 ALR 41; Broadbridge v Stammers (1987) 76 ALR 339. -- 18 of 27 -- 19 "In their context in ss. 2 7 and 30, the words 'interests are affected' denote interests which a person has other than as a member of the general public and other than as a person merely holding a belief that a particular type of conduct should be prevented or a particular law observed. The interest affected need not be a legal interest nor need the person seeking joinder establish legal ownership of the interest ... Sections 27(1) and 30(1) ... require that the applicant demonstrates genuine affection of an interest which attaches to him. The nature of the interest required in a particular case will be influenced by the subject matter and the context of the decision review. "44 54. Justice Davies quoted from a judgment of Justice Brennan, who pointed out that a decision which affects interests of one person directly may affect the interests of others indirectly. "Across the pool of sundry interests, the ripples of affection may widely extend." The problem which is inherent in that legislation (and, by analogy, the definition of "interested person" in section 1.03 of the Aboriginal Land Act 1991) is "the determination of the point beyond which the affection of interests ... should be regarded as too remote for the purposes" of the statute. There must be "some evidence to show that the interests are in truth affected". 45 55. In determining whether a person has a "special interest" sufficient to give the person standing to bring proceedings there is, as Stephen J explained in Onus v Alcoa of Australia Limited, no "ready rule of thumb, capable of mechanical application". The law "seems rather to involve in each case a curial assessment of the importance of the concern which a plaintiff has with particular subject matter and of the closeness of that plaintiff's relationship to that subject matter". 46 Courts have recognised that, in these circumstances, minds may differ when determining whether a "special interest" has been established. Value judgments have to be 44 45 46 Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 1) (1980) 3 ALD 74, at p. 79. Re McHattan and Collector of Customs (NSWl (1977) 1 ALD 67, at p. 70 (Brennan J); see also United States Tobacco Co v Minister for Consumer Affairs (1988) 83 ALR 79 at pp. 88-9; Australian Conservation Foundation v Minister for Resources (1989) 19 ALD 70, at pp. 72-3. Onus v Alcoa of Australia Ltd (1981) 149 CLR 27, at p. 42; see also Australian Conservation Commission v Minister for Resources.(1989) 19 ALR 70, at p. 73. -- 19 of 27 -- 20 made, particularly when assessing matters of weight and proximity. The question what is a sufficient interest will vary according to the nature of the subject matter of the litigation. 47 56. In summary, the words used in the definition of "interested person" and the provisions of sections 8.17 and 8.18, when considered in the context of the Act and in light of judicial decisions on similar legislation and the common law on standing, show that, for a person to be made a party to the proceeding for the hearing of the land claim, that person must have a relevant interest. That interest must be an interest beyond that of any other member of the public. It may be, for example, a pecuniary interest or an interest in land or another form of interest in respect of which advice must be given by the Land Tribunal to the Minister in accordance with section 4.16(5) of the Act. The interest must be personal to, but need not be unique to, that person. An interest which is merely an intellectual or emotional concern or belief is not a sufficient interest for this purpose. Nor is an interest which is, in effect, a concern (whether supportive or critical of) about Aboriginal land claims in general or Aboriginal land claims to particular types of land. Expressions of support for or opposition to the legislation are appropriately made to the legislators, not to the Tribunal. Could be affected 57. 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. 58. 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,48 or could "have consequences" for those interests. 49 47 See Ogle v Strickland {1987) 71 ALR 41, at pp. 42-3 (Fisher J); see also Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 71 AlR 73, at p. 81 (Gummow J). 48 See The Australian Concise Oxford Dictionary, 1988, at p. 1 6. 49 Right Words by Stephen Murray-Smith, 2nd edn, Penguin, 1990, at p. 17. -- 20 of 27 -- 21 In other words, those interests could be "acted upon; influenced" by the grant of the land. 50 59. Various courts have observed that, depending on its context, the word "affected" can have a very wide meaning or a narrower meaning. 51 There is also authority for the view that "affected" should not be given an artificial, narrow or technical meaning. 52 60. 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".53 61. 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 50 51 52 53 See The Macquarie Dictionary, 2nd edn, 1 991 , at p. 2 7. 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 Deve!ooment Ltd (1965) 50 DLR (2d) 521 (I\JSSC), at p. 529; see also !kjqgs v Batts [1986] 2 QdR 309, Stevenson v Steohens [1990] 1 QdR 575. See, for example, Timanu Pty Ltd v Clurstock Pty Ltd (1988) 15 NSWLR 338, at p. 345 (Kirby P, with whom Hope and McHugh JJA agreed). Little v Piccin (1983) 52 LGRA 258, at p. 272. -- 21 of 27 -- 22 be interested persons. 54 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: "(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." Where interests could be affected in the sense of being "influenced injuriously; impaired", 55 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". 54 Compare the definition of "person aggrieved by a decision" in section 3(4) of the ADJR Act, discussed at paragraphs 51-52. 55 See The Macquarie Dictionary, 2nd edn, 1991, at p. 27. -- 22 of 27 -- 23 62. 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: "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 ". 56 63. 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. 64. 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. 57 56 (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). 57 See Onus v Alcoa (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). -- 23 of 27 -- 24 Evidence from people who are not parties 65. Finally, it should be remembered that the exclusion of some people from being parties because they do not meet the statutory criteria does not mean that evidence cannot be received from them. They could be called as witnesses by a party or parties or could provide relevant material to the Tribunal. The procedures provisions make that clear. A proceeding before the Tribllnal is to be conducted with as little formality and technicality, and with as much expedition, as the requirements of the Act and a proper consideration of the matters before the Tribunal permit. The Tribunal is not bound by the rules of evidence but may inform itself on any matter in any way that it considers appropriate. The procedure of the Tribunal is, subject to the Act, within the direction of the Tribunal, which may do all things necessary or convenient to be done for or in connection with the hearing and determination of the claim. 58 66. An obligation to accord natural justice or procedural fairness to parties is found in section 8.23 of the Act, which provides that, subject to certain confidentiality provision, the Tribunal must ensure that every party to a proceeding is given a reasonable opportunity to present the party's case. Even without that provision, such an obligation may well have been implied. 59 But that does not mean that a person who has something less than a relevant interest has a right to be made a party to the proceeding. 67. The distinction between a witness and a party to conventional litigation has been well delineated by Justice Devlin: "The person to be joined must be someone whose presence is necessary as a party. What makes a person a necessary party? It is not, of course, merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance and is afraid that the existing parties may not advance them adequately.... The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action, and the 58 Aboriginal Land Act 1991 sections 8,20(1), 8,27. 59 See Ainsworth v Criminal Justice Commission (1992) 66 ALJR 271; see also Kioa v West ("1985) 159 CLR 550, Annetts v Mccann (1990) 170 CLR 596. -- 24 of 27 -- 25 question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he is a party". 60 The provisions governing who can be made a party to a proceeding under the Act are less restrictive than those in conventional litigation, but the passage just quoted is helpful in the application of the provisions· bf the Act. The present application 68. Ms Burton and Mr Burton have applied to be made a party to the proceeding for the hearing of the land claim to Melville National Park for the following reasons: "1. In the Aboriginal Land Act 1991, provision is made to allow access to National Parks which may be granted, to remain the same after such granting. Cape Melville National Park has no dedicated access to it at present. Therefore, after it is granted, it may be deemed to have had no access at all and therefore give the people who are granted this National Park the right to stop anybody using it. At present there is only an undedicated track used for vehicular access, and many boats shelter and visit the bays. 2. National Parks are gazetted and vested to the Queensland Government, which is elected by all Queens/anders, for use by all Australians. We see no need to vest this National Park in any particular group of Australians. 3. Aboriginal Australians undoubtly (sic) have sacred or significant sites within this National Park, but so do white Australians. There are remains of ships wrecked in the 1899 cyclone, washed well inland by the tidal surge, and significant grave sites ofdead ar,a also water in the area. 60 Amon v Raphael Tuck & Sons ltd [1956] 1 QB 357, at p. 380. -- 25 of 27 -- 26 Therefore, this National Park as with all of Queens/ands National Parks should stay the property of all Queens/anders to be used by all Australians." 69. There are 2 aspects to the response to the submission. First, the submission raises issues of legislative policy to which the Parliament's response is found in the Aboriginal Land Act 1991. The Tribunal must act in accordance' with the statutory provisions. Any argument about the adequacy of the legislation in dealing with the matters raised by Ms and Mr Burton is a matter to be taken up with the legislators not the Tribunal. 70. The balance which has been struck between retaining such land as National Park land and the use of the land in accordance with Aboriginal tradition is found in sections 5.20 and 5.21 of the Act. Section 5.20 provides that the grant of National Park land is subject to the condition that the land be leased in perpetuity to the Crown "for the purposes of the management of the National Park land under the National Parks and Wildlife Act 1975" and is subject to any other conditions that the Governor in Council determines in relation to the National Park land or National Parks generally. Before the grant of the land, the Director of National Parks and Wildlife must prepare a management plan for the National Park. That plan must be prepared in cooperation with a board of management for the National Park (the membership of which must include representatives of the Aboriginal people particularly concerned with the land) and in consultation with the Aboriginal people particularly concerned with the land. The Director must (as far as practicable, but subject to sections 5.20 and 5.21 and the National Parks and Wildlife Act 1975) act in a way that is consistent with any Aboriginal tradition applicable to the land, including any tradition relating to activities on the National Park land. 71 . Section 5. 21 declares that, if granted under the Act, the land will remain a National Park and, subject to the Act, the National Parks and Wildlife Act 1975 applies to the land as though it had remained Crown land. 72. As the applicants have noted, nothing in the Act (or a management plan or a lease under section 5.20 of the Act) "is to result in a decrease, in the aggregate, in the rights of access to National Park immediately before the land became claimable land". -- 26 of 27 -- 27 73. Amendments to Part 5 of the Act, contained in the Nature Conservation Act 1992 but not yet in operation, will be to substantially the same effect as the existing provisions. 74. It should be remembered that if the land becomes Aboriginal land (a matter which will only be determined after the hearing of the claim by the Tribunal), the use of the land by Aboriginal people will be subject to various restrictions because the land will continue to be a National Park in accordance with the relevant statutory provisions. 75. Second, the matters of concern to Ms and Mr Burton may relate to matters on which the Tribunal must advise the Minister as part of a report on the land claim to Melville National Park, perhaps as part of the advice about 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. But they do not constitute "interests" in the sense, or senses, contemplated by the Act. Rather they are more matters of personal or intellectual concern which, however strongly felt, do not amount to "interests" of the Burtons that "could be affected by the grant of land as Aboriginal land because of the claim". 76. Accordingly, Ms and Mr Burton are not "interested persons" and so cannot be made parties to the hearing of the proceeding for the hearing of the land claim to Melville National Park. 77. The exclusion of Ms and Mr Burton from being a party to the proceeding does not necessarily mean that the matters about which they are concerned will be overlooked by the Tribunal or by the Minister. As noted earlier, the Tribunal may, if it wishes, obtain information about those matters from Ms and Mr Burton, or other persons, pursuant to section 8.20(1) of the Act. Conclusion 78. Ms Alice Burton and Mr Graham Burton are not interested persons in relation to the land claim to Melville National Park. Consequently, the Land Tribunal has not made an order making them parties to the proceeding. Graeme Neate Chairperson Land Tribunal. 24 August 1992 -- 27 of 27 --