11.72 In order to become a party to proceedings under s 84(3)(a)(iii), a person must have an interest in relation to land or waters, as defined by s 253. This ‘very wide’ definition includes interests which, at common law, would not be ‘interests in relation to land or waters’, such as licences or permits. The definition extends to a public right to fish, and to a ‘privilege’ such as the right of a member of the public to cross a recreational reserve managed by a public charitable trust. Due to the breadth of this definition, the range of persons who may become parties to proceedings under s 84(3)(a)(iii) is, arguably, very wide in terms of identifying persons with appropriate interests that may be affected by native title proceedings.
11.73 In the Discussion Paper, the ALRC asked whether s 84(3)(a)(iii) should be amended to allow only persons with a legal or equitable estate or interest in the land or waters—that is, the first limb of the s 253 definition of ‘interest, in relation to land or waters’—to become parties under s 84(3)(a)(iii). Such an amendment would not affect a person’s ability to become a party under s 84(a)(i)–(ii), nor the person’s ability to make an application for joinder under s 84(5).
11.74 Many stakeholders expressed support for a reduction in the range of s 84(3)(a)(iii). However, others argued that the suggested amendment would result in too great a restriction on the persons who may become parties under s 84(3). The MCA, for example, stated that:
Ambiguity exists under relevant statues and case law which suggest that mining tenements may not be a legal or equitable interest in land in all cases … As a result, [the suggested amendment] may diminish existing rights.
11.75 The MCA observed that s 10 of the Minerals Resources Act 1989 (Qld) provides that the grant of a mining tenement granted under that Act does not create an estate or interest in land. The MCA also noted the decision of the High Court in TEC Desert v Commissioner of State Revenue (WA) (‘TEC Desert’). This case suggests that mining tenements may not be regarded as legal or equitable estates or interests in land. Such examples suggest that a mining company with an interest in a claim area arising from a mining tenement would not be able to become a party under s 84(3)(a)(iii) if that section were limited to persons with a legal or equitable estate or interest in the claim area. Given the importance of persons whose interests may be affected by a determination being able to represent their interests, the ALRC considers that such a restriction would be overly burdensome.
11.76 Telstra noted that it is granted certain access rights under the Telecommunications Act 1997 (Cth). Schedule 3 of that Act authorises a telecommunication carrier to enter land for the purposes of inspecting the land, installing facilities or maintaining facilities. Similar access rights were granted under the predecessor legislation to the Telecommunications Act 1997. Moreover, Telstra’s Universal Service Obligation (USO) has, since 1975, required Telstra ‘to ensure that standard telephone services are reasonably accessible to all people in Australia … wherever they reside or carry on business’. As a result of these access rights and the USO, there was ‘an unprecedented expansion of Telstra’s infrastructure throughout urban and regional Australia … installed on land … without the need to obtain formal land tenure’. It would therefore appear that Telstra may not hold ‘a legal or equitable estate or interest in the land or waters claimed’ if the common law position on ‘legal or equitable estate or interest’ is accepted for the purposes of s 84(3)(a)(iii).
11.77 Other telecommunication carriers are granted the same access rights under the Telecommunications Act 1997, and similar rights of access are granted to utility providers under, for example, the Electricity Supply Act 1995 (NSW), the Gas Supply Act 2003 (Qld), and the Water Act (NT). While the geographical range of Telstra’s infrastructure may be particularly broad due to the USO, many carriers or utility providers with a right of access under statute may own infrastructure installed on land covered by a native title claim without holding ‘a legal or equitable estate or interest in the land or waters claimed’. The ALRC considers that such persons and organisations should have an opportunity to participate in proceedings, notwithstanding that the interest may not amount to a legal or equitable estate or interest in the land.
11.78 The ALRC considers that holders of mining tenements, telecommunications carriers, utility providers, and similar third party respondents should not be required to apply for joinder under s 84(5). This would accord with the efficient administration of justice.
11.79 The ALRC remains concerned, however, that s 84(3)(a)(iii) may be too wide and uncertain in application, particularly as claims are made in closely settled areas where respondent party numbers may increase. For example, the terms ‘power’, ‘privilege’, and ‘restriction’, have a potentially broad and uncertain interpretation. It may be appropriate to amend s 84(3)(a)(iii) to apply to a more specific and clearly-defined category of persons. For example, rather than applying to persons with a power, privilege or restriction in relation to the land or waters in the claim area, s 84(3)(a)(iii) could be amended to include those persons with a statutory right in relation to the land or waters in the claim area. This would make clear that interests such as those held by holders of mining tenements or telecommunications providers were sufficient to participate under s 84(3)(a)(iii), and would also extend to other persons with a statutory right, such as persons who hold a licence or permit for commercial fishing.
11.80 An amendment to s 84(3)(a)(iii) would require further consideration that is outside the scope of this Inquiry. Relevant state and territory legislation granting rights or interests in the claim area would need to be assessed to ensure that appropriate persons would be captured. Further consideration would also be required as to whether such an amendment should be made to s 84(3)(a)(iii) directly, or to the underlying definition of ‘interest, in relation to lands or waters’ in s 253. The s 253 definition is referred to in other provisions of the Native Title Act, and amendment of the definition in s 253 may indirectly alter the interpretation and effect of these other provisions. For example, a consent determination under s 87A requires the agreement of, among others, ‘each person who holds an interest in relation to land or waters in any part of the determination area at the time the agreement is made, and who is a party to the proceeding at the time the agreement is made’. An amendment of the s 253 definition of ‘interest, in relation to land or waters’ would therefore affect the operation of s 87A. However, it may be appropriate to amend s 253 if it were considered that the categories of person whose agreement would be required for a consent determination under s 87A should be varied.
Notification of Aboriginal Land Councils
Recommendation 11–1 Section 66(3)(a) of the Native Title Act 1993 (Cth) should be amended to provide that the Registrar must notify the NSW Aboriginal Land Council and Local Aboriginal Land Councils, established under the Aboriginal Land Rights Act 1983 (NSW), of a native title application.
11.81 The ALRC recommends that the Native Title Act be amended to explicitly include the NSW Aboriginal Land Council and Local Aboriginal Land Councils (ALCs) among the categories of persons whom the Registrar must notify of a native title application under s 66(3)(a). A further amendment to s 84(3)(a)(i) reflecting the inclusion of ALCs in s 66(3)(a) would ensure that ALCs were able to join native title determination proceedings under s 84(3)(a)(i).
11.82 The Aboriginal Land Rights Act 1983 (NSW) provides a process for an ALC to make a claim to land independently of the claims process of the Native Title Act. Although the two claim processes are distinct, they may interact. An ALC cannot claim land under the Aboriginal Land Rights Act that is subject to a native title determination or a registered claim. Where a native title claim is made after a claim under the Aboriginal Land Rights Act, the Aboriginal Land Rights Act transfer is made subject to any native title rights and interests that exist immediately before the transfer. An ALC may not deal with land that is vested in it subject to native title rights and interests unless the land is the subject of an approved determination of native title. Additionally, extinguishment of native title due to the grant of land to an ALC may be disregarded.
11.83 It will often be appropriate for an ALC to be a respondent party to native title determination proceedings, because title to land may be affected by native title rights and interests in significant and complex ways. Where an ALC holds a fee simple over land it will be able to become a party to proceedings under s 84(3)(a)(iv) of the Native Title Act. However, where an ALC has made a claim under the Aboriginal Land Rights Act that has not been determined, it has only a statutory, inchoate interest in the land claimed. Such an interest may not amount to a legal or equitable estate or interest in the land.
11.84 Several stakeholders supported the recommended reform. NTSCORP noted that such amendments
would assist in ensuring that relevant parties are joined to the proceedings earlier on in the process and may assist in a more efficient native title process. Late joinder of respondent parties, particularly Local Aboriginal Land Councils, has caused significant problems at the eleventh hour of several claim resolution process in NSW.
11.85 However, the National Native Title Tribunal submitted that ALCs are already notified of relevant native title proceedings. The Law Council similarly submitted that, in practice, ALCs are able to join native title proceedings ‘by virtue of their interest in undetermined claims’.
11.86 If all relevant ALCs are notified of native title claims affecting their claim area under the Aboriginal Land Rights Act—including those ALCs with an inchoate interest in the claim area—then amendment of s 66(3)(a) of the Native Title Act may be unnecessary. However, given the complex interactions of the Aboriginal Land Rights Act and the Native Title Act, and the importance of affected parties having the opportunity to participate in native title determination proceedings, the ALRC considers that it is still desirable to ensure that ALCs with an inchoate interest are able to participate in proceedings without being required to apply for joinder under s 84(5).
11.87 Recommendation 11–1 achieves this result—ALCs with interests arising under the Aboriginal Land Rights Act would be able to become parties to native title determination proceedings under s 84(3). This would apply once a claim has been determined under the Aboriginal Land Rights Act, and the ALRC considers that it should also apply to the inchoate interest arising under the Aboriginal Land Rights Act when an ALC has made a claim but that claim has not yet been determined.
An option for respondents to limit their participation
Recommendation 11–2 Federal Court of Australia practice notes (or similar mechanisms) should provide for a person who becomes a party to proceedings under s 84(3) or s 84(5) of the Native Title Act 1993 (Cth) to elect to participate only in respect of the matters listed in s 225(c) and s 225(d) of the Act.
11.88 The ALRC recommends that provision be made for parties wishing to formally limit their participation in proceedings to matters relating to ss 225(c) and (d)—that is, the nature and extent of their interests in relation to the determination area and the relationship between those interests and native title rights and interests.
11.89 A person who becomes a party to native title proceedings will be a party to the entire proceedings. However, a number of stakeholders argued that it may be of benefit for persons to participate only as far as is needed to represent their interests—namely, in relation to the matters raised in ss 225(c) and (d). A person who elected to participate in this way would be able to represent their interests to the Court and to stay informed about the proceedings, without a need to actively participate in all aspects of the proceedings. The results of respondents electing to target their participation in this way are likely to include reduced costs for the respondents, as well as increased certainty for applicants while retaining access to justice.
11.90 In the Discussion Paper, the ALRC proposed amending the Native Title Act to allow a person who becomes a party to native title proceedings to elect to join proceedings only when the proceedings concern matters affecting the party’s interests under ss 225(c) and (d). The proposal drew on Telstra’s submission that
legislative reform that permits respondent parties to formally limit their involvement in native title claims while questions of connection are being resolved would be a positive outcome.
11.91 Telstra proposed a ‘secondary joinder portal’, allowing a person to give notice of an intention to join proceedings once the Federal Court has considered and made a determination on connection. This would have two main benefits:
a person would have the option of minimising time and resources spent on matters not directly affecting their interests; and
if there was no determination of connection, or if the claim was withdrawn or dismissed, the person would not have joined proceedings unnecessarily, minimising the costs for all parties.
11.92 The proposal was widely supported by stakeholders, with several noting the potential cost and efficiency benefits of allowing parties to formally limit their participation. Under this proposal, the option to participate only in certain aspects of proceedings would remain with the party. It would not prevent a party that wished to participate in the entirety of proceedings from doing so.
11.93 Some stakeholders suggested that further reforms were warranted. The Yamatji Marlpa Aboriginal Corporation, for example, submitted that they
would prefer … that those who fit within section 84(3)(a)(iii) should only automatically become parties under section 225(c) or (d) … but that leave should be required in relation to section 225(a) or (b).
11.94 This suggestion reflects a recommendation of the 2006 Native Title Claims Resolution Review that
consideration be given to limiting the right of participation of a third party (that is, a non-government respondent party) to issues that are relevant to its interests and the way in which they may be affected by the determination sought.
11.95 The National Native Title Council (NNTC) submitted that the proposal could be extended by either:
(a) giving the Court the discretion to limit the ability of a person to elect to be party to proceedings to participating in them only in respect of s 225(c) and (d); or
(b) not allowing a person to be a party to the proceedings before the Court has made decisions concerning the identity of the native title holders and connection issues.
11.96 Frith and Tehan similarly submitted that the proposal
should be extended to expressly give the Court the ability to limit a party’s involvement in proceedings to participating in them only in respect of s 225(c) and (d).
11.97 The ALRC notes that the Federal Court has existing powers to manage the participation of a party to proceedings, and that it may limit the participation of a party as appropriate in given circumstances. In Watson (No 3), the Court made orders that a respondent’s ‘participation in the proceeding be limited to leading evidence and making submissions in respect of the matters listed in ss 225(c) and (d) of the NTA’.
11.98 The ALRC considers that such measures exercised by the Court in light of the circumstances in each case, is preferable to mandatory statutory provisions around the participation of parties in respect of ss 225(c) and (d). The ALRC therefore considers that direct statutory amendment governing participation of parties is not required. Recommendation 11–2 would provide a simple mechanism for respondents to elect to limit their participation if they wish to do so, which would operate alongside the Court’s existing powers.
11.99 Parties’ participation in native title proceedings is already being managed by the Federal Court in designating an ‘active’ and ‘inactive’ party list in some matters. Parties asserting interests based on statutory permits or joined pursuant to s 84(5) are not notified of directions hearings or required to join in consent orders while the applicants and the state or territory minister are negotiating the issues of traditional law and custom and connection. This enables the Court to focus on the key parties involved until it is clear that a determination will be sought by consent (in which case the other parties will be brought in to the negotiations concerning ss 225(c) and (d)) or will proceed to trial (and directions will be made for the participation of all parties in the hearing).
11.100 Although the Native Title Act could be amended to provide for parties to elect to limit their participation to matters relating to ss 225(c) and (d), in practice there are likely to be many circumstances and contingencies which cannot be adequately dealt with in legislation. The ALRC considers that case management mechanisms allow greater flexibility and the capacity to respond as circumstances change.
11.101 However, as noted by QSNTS, amendment of the schedule to the Native Title (Federal Court) Regulations 1998 (Cth) may be warranted. QSNTS suggested that the Regulations,
be amended to provide for an election provision on the Form 5 where parties wishing to join positively indicate from the outset whether they would be involved in the whole claims process including connection assessment or only for the purposes of ss 225(c)–(d). Such details could assist in the culling of the party list by the Court in its case management of the claim once interests that ought to be in the Other Interests schedule of any determination have been identified and extinguishment issues have been resolved between the parties.
11.102 The ALRC agrees that the inclusion of an election provision in Form 5 of the schedule to the Regulations would be of value. The Federal Court might also be assisted in its case management processes if a person seeking to become a party—under s 84(5)—provides a statement that sets out how that interest may be affected if a determination of native title is made.
Western Australia v Ward (2002) 213 CLR 1, .
Explanatory Memorandum, Native Title Bill 1993 (Cth), Part B 102–103.
Western Australia v Ward (2002) 213 CLR 1, .
Kanak v Minister for Land and Water Conservation (2000) 106 FCR 31, .
Australian Law Reform Commission, Review of the Native Title Act 1993, Discussion Paper No 82 (2014) Q 11–1.
Yamatji Marlpa Aboriginal Corporation, Submission 62; National Native Title Council, Submission 57; Queensland South Native Title Services, Submission 55; A Frith and M Tehan, Submission 52; Central Desert Native Title Service, Submission 48; Native Title Services Victoria, Submission 45; Law Society of Western Australia, Submission 41.
Minerals Council of Australia, Submission 65.
TEC Desert v Commissioner of State Revenue (WA) (2010) 241 CLR 576.
Ibid , . Although this case is primarily concerned with the status of fixtures affixed to land that is the subject of a mining tenement, it raises the possibility that a mining tenement would not be considered a legal or equitable estate or interest in land for the purposes of the Native Title Act.
Telecommunications Act 1997 (Cth) sch 3, cl 5.
Ibid sch 3, cl 6.
Ibid sch 3, cl 7.
Telecommunications Act 1975 (Cth) ss 16–20; Post and Telegraph Act 1901 (Cth) ss 84–90.
Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth) s 9(1)(a). The predecessor to Telstra, the Australian Telecommunications Commission (trading as Telecom), had a similar obligation under Telecommunications Act 1975 (Cth) s 6.
Telstra, Submission 53.
Electricity Supply Act 1995 (NSW) ss 54–63A.
Gas Supply Act 2003 (Qld) ss 138–145.
Water Act (NT) s 20.
In particular, when a third party respondent is joining only for the purposes of representing its own interests in the claim area, rather than to challenge a claim: see, eg, Telstra, Submission 45.
Native Title Act 1993 (Cth) s 253.
One example of such a license can be found in the Fisheries Management Act 2007 (SA). However, permits and licences for a wide range of activities exist under various state and territory laws.
Native Title Act 1993 (Cth) s 87A(1)(c)(v).
Aboriginal Land Rights Act 1983 (NSW) s 36(1)(d), (e).
Ibid s 36(9), (9A). This is subject to the claim under the Aboriginal Land Rights Act being made after 28 November 1994: Native Title Act 1993 (Cth) s 22J(b).
Aboriginal Land Rights Act 1983 (NSW) s 42.
Native Title Act 1993 (Cth) s 47A.
The complex interaction of these two systems was also raised by the NSW Aboriginal Land Council: NSW Aboriginal Land Council, Submission 51.
Narromine Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 79 LGERA 430, 433–434 (Stein J); New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685, 696. See also Jason Behrendt, ‘Some Emerging Issues in Relation to Claims to Land under the Aboriginal Land Rights Act 1983 (NSW)’ (2011) 34 University of New South Wales Law Journal 811.
NTSCORP, Submission 67; Minerals Council of Australia, Submission 65; NSW Aboriginal Land Council, Submission 51.
NTSCORP, Submission 67.
National Native Title Council, Submission 57.
Law Council of Australia, Submission 64.
Section 225(c) refers to ‘the nature and extent of any other interests in relation to the determination area’. Section 225(d) refers to the relationship between the rights and interests in s 225(c) and native title rights and interests in relation to the determination area.
Telstra, Submission 4.
AIATSIS, Submission 70; Minerals Council of Australia, Submission 65; Law Council of Australia, Submission 64; National Native Title Council, Submission 57; Queensland South Native Title Services, Submission 55; Telstra, Submission 53; A Frith and M Tehan, Submission 52; The Chamber of Minerals and Energy of Western Australia, Submission 49; Central Desert Native Title Service, Submission 48; Native Title Services Victoria, Submission 45. The North Queensland Land Council supported the proposal ‘provided the parties who have joined for a limited purpose are able to withdraw automatically once their matters of concern have been addressed’: North Queensland Land Council, Submission 42. The South Australian Government noted that a similar practice was followed in its consent determination practice: South Australian Government, Submission 68.
Yamatji Marlpa Aboriginal Corporation, Submission 62. A similar suggestion was made by the Law Society of WA: Law Society of Western Australia, Submission 41.
Graeme Hiley and Ken Levy, above n 74, rec 20.
National Native Title Council, Submission 57.
A Frith and M Tehan, Submission 52.
Watson v Western Australia (No 3)  FCA 127 (24 February 2014) .
Minerals Council of Australia, Submission 65.
Queensland South Native Title Services, Submission 55.