Parties to proceedings under s 84(3)

Only legal or equitable estates or interests in land or waters

11.26   Section 84(3) provides that certain persons are a party to native title proceedings if they notify the Federal Court in writing to that effect. These persons include:

• under ss 84(3)(a)(i) and 66(3)(a)(i)–(vi), various categories of defined persons with an interest in the area covered by the application, such as registered native title bodies corporate, any person with a proprietary interest registered in a public register of interests, and local councils;
• under s 84(3)(a)(ii), persons who claim to hold native title in relation to land or waters in the area covered by the application; and
• under s 84(3)(a)(iii), persons whose interests in relation to land or waters may be affected by a determination in the proceedings.

11.27   Question 11–1 is specifically concerned with s 84(3)(a)(iii), and not the participation of persons under s 84(3)(a)(i) and (3)(a)(ii). 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:

interest, in relation to land or waters, means:

(a)    a legal or equitable estate or interest in the land or waters; or

(b)     any other right (including a right under an option and a right of redemption), charge, power or privilege over, or in connection with:

         (i) the land or waters; or

         (ii) an estate or interest in the land or waters; or

(c)     a restriction on the use of the land or waters, whether or not annexed to other land or waters.

11.28   This ‘very wide’^[32] definition explicitly includes interests which, at common law, would not be interests in relation to land or waters, including licences or permits, as well as restrictive covenants.^[33] The definition extends to a public right to fish,^[34] 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.^[35] 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, wider than necessary.

11.29   The ALRC is seeking stakeholder views on a restriction of the right to participate in proceedings under s 84(3)(a)(iii) to those persons with a legal or equitable estate or interest in the land or waters—that is, persons with an interest satisfying paragraph (a) of the definition of ‘interest’ in s 253. Persons whose interests were not legal or equitable estates or interests would not be able to become parties under s 84(3). However, such persons would still be able to join under s 84(5) and (5A), subject to the Federal Court making appropriate orders. This would ensure—consistent with Guiding Principle 2—that their interests were represented in proceedings.

11.30   A possible consequence of restricting s 84(3)(a)(iii) is that some persons who would previously have become parties automatically under s 84(3)(a)(iii) would instead seek to join by applications under s 84(5) and (5A). These applications would require consideration by the Court, and the costs and time involved making such applications may offset any other reductions in costs and time due to smaller party numbers. The ALRC is interested in stakeholder views as to whether this is likely to be a problem in practice.

Notification of Aboriginal Land Councils

11.31   As noted in Chapters 1 and 3, there are often complex interactions between the Native Title Act and the land rights legislation of states and territories. In NSW, for example, the Aboriginal Land Rights Act 1983 (NSW) provides for Local Aboriginal Land Councils (LALCs) to make land claims resulting in freehold title over claim areas. The NSWALC noted that freehold title under the Aboriginal Land Rights Act may be affected by a native title claim.^[36]

11.32   Once a claim has been determined under the Aboriginal Land Rights Act, a LALC has freehold title over the land, and would be able to become a party to native title proceedings under s 84(3) or to join proceedings under s 84(5). However, where a LALC has lodged a land claim but where the claim has not yet been determined, the claimant may hold an inchoate interest.^[37]

11.33   The NSWALC submitted that it unclear whether a LALC would receive notification of a native title claim under s 66(3) if the LALC’s interests were in land under a land rights claim, as opposed to land already owned, and that it may be appropriate to notify LALCs of a native title claim where their area overlaps with a native title claim.^[38]

11.34   The importance of the holder of an inchoate interest having an opportunity to represent their interests in native title proceedings is illustrated by s 36(1d) of the Aboriginal Land Rights Act, which provides that land which is the subject of a registered native title determination application cannot be claimed under the Aboriginal Land Rights Act.

An option for respondents to limit their participation

11.35   A person who becomes a party to proceedings under s 84(3) will be a party to the entire proceedings. However, some persons may wish to participate only as far as is needed to represent their interests—namely, in relation to the matters raised in s 225(c) and (d).^[39]

11.36   Proposal 11–1 would allow a person who becomes a party to native title proceedings under s 84(3) to elect to join proceedings only when the proceedings concern matters affecting the party’s interests under s 225(c) and (d). Telstra noted the desirability of such a provision:

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.^[40]

11.37   In its submission, 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.

11.38   Proposal 11–1 would allow a person to avail themselves of the right to become a party to proceedings under s 84(3), while making it possible for that person to elect to limit their involvement to matters concerning their own interests. A person who participated in this way would be able to represent their interests to the Court and to stay informed about the proceedings, without a need to be actively involved in all aspects of the proceedings. 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.