Craig Emerson (Director-General, Queensland Department of Environment and Heritage) re land claim – Melville National Park [1992] QLT 4

[1992] QLT 4 LAND CLAIM TO MELVILLE NATIONAL PARK Decision of the Land Tribunal concerning the application by 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 14 August 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 4 (NP4 Melville) (the "land claim to Melville 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. 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 (b} the claimants of any other claim under this Act that is to be heard and determined with that claim; and -- 1 of 24 -- . 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 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. " 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 proceeding. making person a party to -- 2 of 24 -- 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 1991 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 a provision having regard to context the Act and to the Act"" 1 Acts interpretation Act 1954 section 148(2), (3). -- 3 of 24 -- 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, Dr Emerson has 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 Dr Emerson is an "interested person" 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. Dr Emerson is a "person". 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 24 -- 5 18. 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 by a successful claim to the land. 19. 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.3 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 20. The next question is whether the applicant has "interests" that could be affected by the grant of the land. 21. The words "interest" and "interests" have been held to be words of "uncertain" meaning or "capable of many meanings", so that the meanings which they bear vary according to their context.4 22. 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. 23. "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: 4 See Korczynski v Ouik Foods Ptv Ltd and Others {1985i 59 ALR 27 3, at (Smithern, f\Jorthrnp and Spender JJ), following Owendale Pty ltd v Anthony (1967) ·i 17 CLR 539, at 4 (Windeyer J), see also p,598 {Taylor J), p. 611 (Ovven J); Barton •1 Croner Trading Ptv Ltd ('1984) 54 ALR 541, at pp.556-7 (Bowen CJ, Beaumont and Wilcox JJ). See Leedale v Lewis [1982] 1 WLR 1319, at p. 1329 !Lord Wilberforce), p. 1324 (Lord Fraser of Tullybeiton); In re Hampton Fuel Allotment Charity [1988] 3 WLR 513, at p. 519 (Court of Appeal). -- 5 of 24 -- ----------------------··---- 6 "(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". 24. The ordinary meanings of "interest" 5 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 25. 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, it may be possible to answer that question by having regard to the purpose of the Act and to the context of the provision in the Act. 26. 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 Act7 as well as the preamble to and the substantive provisions of the Act. Eg see definitions or "interest" in The Australian Concise Oxford Dictionarv, 1988, at and The Macquarie Dictionarv, 2nd edn, 1991, at p.916. See F Hannan Pty limited v The Electricity Commission of 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. -- 6 of 24 -- 7 27. 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: "( 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. " 28. 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 29. 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. 30. 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: 8 9 (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 Tribunai; 9 See Wacando v The Commonwealth (1981) 148 CLR 1, at pp. 1 5-1 6 (Gibbs CJ). p. 2.3 (rv1ason J); see also Bowtell v Goldsbrough, Mort & Co Ltd (1905) 3 CLR 444, at p. 45"i (Griffith CJ), Southern Centre of Theosophy Inc v South Australia !1979) 145 CLR 246, 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. -- 7 of 24 -- 10 11 12 13 8 (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 (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 Ibid. section 4.07. ibid. sections 4.08 - 4.15, 4.17, 8.12 - 8.35. ibid. section 4.16(1), (2). Ibid. section 4.16(3), (4). -- 8 of 24 -- ---------------------- ------- 9 (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 (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 31. 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: 14 15 "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 ancl Ibid. section 4.16(5). Ibid. sections 5.01 - 5.03. usage -- 9 of 24 -- 10 (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. " 32. Where the Commissioner recommends that land should 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 33. 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 34. Justice Mason wrote that, in imposing the duty on the Commissioner to comment on the matters specified in section 50(3), 16 17 18 "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 Aboriginal land Rights \Northern Territory) Act 1976 section 11. \1983) 158 CLR 327, at p. 334. Ibid at p. 339. -- 10 of 24 -- 1 1 35. 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 "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 36. 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 37. 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 19 Ibid at p. 349. 20 Ibid at pp. 360-1. 21 Ibid at p. 362. 22 (1986) 162 CLR 24, at p. 44. 23 Ibid at pp. 56-7. -- 11 of 24 -- 12 38. 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 in the Commissioner's report when the Minister is assessing the significance of any likely detriment to others. 25 39. 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 Act. 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. 40. 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. 41. 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, 24 25 26 Ibid at p. 68. Ibid at p. 69; see also at p. 30 (Gibbs CJ), at p. 44 (Mason J), at p. 57 (Brennan J). 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. -- 12 of 24 -- 13 whether or not that interest coincides with the interests of any party. 27 In the case of the land claim to Melville National Park, there are issues concerning the National Park which may have a bearing on the grant of the land if the Land Tribunal recommends the grant. 42. 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. 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 "interests" or "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 27 28 29 \1986) 162 CLR 24, at p. 63. For example, a tourist enterprise: see Fraser Island Defenders Organisation Ltd v Hervey Bay Town Council [1983] 2 QdR 72. legislative Assembly, Debates, 22 May 1991, p. 7773. -- 13 of 24 -- 14 45. 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 prov1s1ons similar to the definition of "interested person" in the Aboriginal Land Act 1991 30 - has stated that the words "interests" and "interested" are not used in those provisions as if they were "mere terms of common parlance". "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. "31 46. 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". 32 Courts have recognised that, in these circumstances, minds may differ when determining whether a "special interest" has been established. Value judgments have to be 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. 33 30 31 32 33 The Court was considering sections of the ADJR Act concerning "a person interested in a decision ... ": section 1 2; 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); Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No.1) (1980) 3 ALO 7 4, at p. 79 (Davies J); Re McHattan and Collector of Customs (NSW) 1 AlD 67, at {Brennan J). 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. 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). -- 14 of 24 -- - ------------------------------ 15 4 7. 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. 34 Although the Director may appear before any court or in any proceedings by any officer or other person authorized by the Director35 , 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 supercede the provisions of the National Parks and Wildlife Act 1975 and, among other things, abolish the office of the Director. 48. 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. 36 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 expected to commence before the determination of the land claim to Melville National Park. 34 35 36 See National Parks and Wildlife Act 1975, Part II - Administration. 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, 104to 108, and 120. -- 15 of 24 -- 16 49. The Nature Conservation Act 1992 will repeal the National Parks and Wildlife Act 197537 and will make appropriate amendments to the Aboriginal Land Act 1991 . 38 Each existing National Park will be dedicated as, or as part of, a National Park under the new Act. 39 Although the day to day administration of the 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. 40The chief executive may delegate to a conservation officer or an officer of the public service most of the powers under the Act41 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. 42 50. The submission provided by Dr Emerson describes the interests which could be affected by the grant of the land as being or arising from: 37 38 39 40 41 42 43 44 (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" ;43 (b) the involvement of the DEH in the appointment of the board of management and preparation of a management plan for the National Park;44 Nature Conservation Act 1992 section 158, Schedule 1. Ibid. section 159, Schedule 2. Ibid. section 164. Ibid. sections 121, 7; see also sections 1 22, 124. Ibid. section 128. Ibid. section 126. See Aboriginal Land Act 1991 section 5.20(1 )(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. Ibid. section 5.20. -- 16 of 24 -- 17 (c) a possible increase in the presence of DEH staff in the National Park and the possible employment of Aboriginal people there; (d) the need for greater surveillance of the National Park with regard to any breaches of legislation, management plans or Marine Park zoning plans; and (e) 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). 51. 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'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. 45 52. 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 iand claimed. 45 Public Service Management and Employment Act 1988 sections 11, 1 2. -- 17 of 24 -- 18 Could be affected 53. Where an applicant has relevant interests, the remammg 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. 54. 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,46 or could "have consequences" for those interests.47 In other words, those interests could be "acted upon; influenced" by the grant of the land. 48 55. Various courts have observed that, depending on its context, the word "affected" can have a very wide meaning or a narrower meaning. 49 There is also authority for the view that "affected" should not be given an artificial, narrow or technical meaning. 50 56. 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: 46 47 48 49 50 "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 See The Australian Concise Oxford Dictionary, 1988, at p. 1 6. Right Words by Stephen Murray-Smith, 2nd edn, Penguin, 1990, at p. 17. See The Macquarie Dictionary, 2nd edn, 199·1, at p. 27. See, for example, Commissioner for Motor Transport v Kirkpatrick (l 987) ·11 l\JSVVLR 427, at p. 438 {Kirby Pl and p. 446 (Mahoney JA) citing Umina Beach Bowling Club Ltd v Ryan [1984] 2 NSWLR 61, at p. 68; Shanks v Shanks {1942) 65 CLR 334, at p. 337; Re Clarendon Development Ltd (1965) 50 DLR (2d) 521 (NSSC), at p. 529; see also Briggs v Batts [1986] 2 OdR 309, Stevenson v Stephens (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). -- 18 of 24 -- -------------------------------------- 19 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 ".51 57. 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. 52 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: 51 52 "(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 !slanders) 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 usage the region of Little v Piccin (1983) 52 LGRA 258, at p. 272. Compare the definition of "person aggrieved by a decision" in section 3(4) of the ADJR Act, discussed at paragraph 45. -- 19 of 24 -- 20 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". 58. 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". 53 59. 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. 53 (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). -- 20 of 24 -- 21 60. 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. 54 61. 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 submission which he enclosed with the application outlines how 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 Park, a possible increase in the presence of DEH staff in the National Park and the possible employment of Aboriginal people there. DEH may also assist in the training of Aboriginal people in law enforcement. 62. 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: 54 (a) Aboriginal employment on the National Park would bring valuable skills and knowledge to management; (b) 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, management plans or Marine Park zoning places; (c) it is anticipated that Aboriginal ownership of the National Park will enhance the protection of the Aboriginal heritage of the park through direct involvement of Aboriginal people in the management and decision-making regarding these sites; 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). -- 21 of 24 -- -----·------------------------- - ---------------- -~---"-------- 22 (d) it is anticipated that environmental research, monitoring and management programs on the National Park will be enhanced through the input of Aboriginal knowledge and expertise; and (e) 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. 63. The DEH also expects that a successful claim and the subsequent joint management of the National Park with its Aboriginal owners will have regional implications by fostering a greater level of co-operation between the DEH and other Aboriginal groups with regard to the conservation management of natural resources in the region. 64. 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 Melville National Park. Opposition to the application 65. In a letter dated 3 August 1992, the Chairman of the Cape York Land Council wrote to the Chairperson of the Land Tribunal to register "our strongest objections" to what he understood to be the apparent policy of the DEH of seeking representation before the Land Tribunal in the process of the hearing of land claims for National Parks. Whether there is such a policy is not evident to the Tribunal. However, as Dr Emerson has applied to be made a party to the proceeding for the land claim to Melville National Park, it is appropriate to consider the objections of the Cape York Land Council as objections to that application. 66. The reasons given by the Land Council for objecting are as follows: "1. If DEH has concerns about Aboriginal land claims on particular parks, surely these can be addressed before the park is .gazetted as claimable Go -- 22 of 24 -- -- ---------- 23 2. There should be no question of detriment issues for DEH in the hearing process. Preservation of the DEH's interests in the conservation and management of the parks can be addressed in the negotiation of leaseback agreements and management plans. The fact that management plans or conservation plans have to be prepared by the Minister (s.102-107 Nature Conservation Act 1992) and approved by the Goverhor-in Council (s. 108) means that there is more than adequate opportunity for DEH to preserve the Government's interests in these parks. 3. The presence of DEH in the claims process is totally inappropriate and is apt to pre-empt negotiation and finalisation of management and lease issues. It is our view that the Aboriginal Land Tribunal is not an appropriate place to air issues relating to management and the lease. These issues can be negotiated between DEH and the successful claimants after the claim is proved. This is what is contemplated by the Aboriginal Land Act (Division 5) and the Nature Conservation Act (Part 7). 4. The claimant groups do not require the assistance of DEH for the primary purpose of the land claim hearing to prove the claim. We can think of no role which the DEH could play in the claims process which may be of assistance to the claimant groups in proving their claim. Given the above considerations we can see no reason why DEH should insist on being a party to proceedings before the Aboriginal Land Tribunal in respect of land claims on National Parks." 67. The Land Council has urged the Tribunal to the view that the DEH is not an "interested person" within the meaning of section 8.18 of the Act and that Parliament has specifically made provision for the protection of the Crown's interests by provisions in the Act and the Nature Conservation Act 1992. 68. The Emerson's application referred to reasons indicate that at least some of the concerns of the Land Council, insofar as they relate to the land claim to Melville National Park, are misplaced. Dr Emerson has expressly disavowed any assertion that he will suffer detriment, but submits that his interests and those of the DEH will be -- 23 of 24 -- 24 beneficially affected if the claim succeeds. Undoubtedly there will be matters of detail to be resolved by negotiation between the parties in accordance with the scheme set out in section 5.20 of the Aboriginal Land Act 1991 and it may be that they will only be resolved once the Tribunal has heard and reported on the land claim. 69. The issue for the Tribunal to resolve is whether Dr Emerson satisfies the criteria in the definition of "interested person" in section 1.03 of the Act. If he does, then the opinion of the Land Council about the appropriateness or otherwise of his being made a party cannot determine whether he is to be made a party. 55 Order 70. 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 Melville 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 Melville National Park. Graeme Neate Chairperson Land Tribunal. 24 August 1992 55 See Re Control Investment Pty limited and Australian Broadcasting Tribunal (No 1) (1980) 3 ALO 74, at pp.80-1 (Davies J). -- 24 of 24 --