Members of the Yorta Yorta Aboriginal Community & Ors v The State of Victoria & Ors [1995] FCA 1173

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION No VG 6001 of 1995 MEMBERS OF THE YORTA YORTA ABORIGINAL COMMUNITY AND ORS Applicants THE STATE OF VICTORIA AND ORS

Respondents Coram: Olney J Place: Melbourne

Date: 13 October 1995 Reasons published: 28 November 1995 REASONS FOR JUDGMENT On 13 October 1995 I made orders granting leave to Graeme Ross McPherson (McPherson) and Victorian Field and Game Association Incorporated (the Association) to be joined as parties to this proceeding. At the time, after hearing counsel for the two parties seeking to be joined, and there being no opposing submissions from any of the other parties then appearing I said to counsel: I am convinced that it is appropriate that each of the two applicants you represent ought to be joined as parties. I think because it is an important matter which is going to involve the Court from time to time, and indeed under the proposals recently - or the outline of proposals recently circulated by the Attorney-General's Department, it is likely that if amendments are made to the Act the Federal Court will be dealing in every case with applications to be joined as parties in future. It would be appropriate that I prepare written reasons, and I will do that at the earliest possible time, and publish and circulate them to those interested. I will, today, make the order that Graeme Ross McPherson and the Victorian Field and Game Association Incorporated, be joined as parties to the application. (T pp 33-4). I now publish my reasons.

This proceeding is an application for a determination of native title made pursuant to the Native Title Act 1993 (Commonwealth) (the Act). Initially the application was made to the Native Title Registrar (s 61) and following acceptance of the application (s 63(1)), the President of the National Native Title Tribunal (the Tribunal) directed the holding of a conference of the parties or their representatives to help in resolving the matter (s 72(1)). That conference, which extended over a considerable period of time, was presided over by a Deputy President of the Tribunal (Gray J). At the end of the conference, in the absence of advice that the parties had reached agreement as to the terms of a determination of the Tribunal in relation to the application (s 73), the Native Title Registrar lodged the application in the Federal Court (s 74). The matter is now being dealt with as a proceeding in the Victorian District Registry of the Court. It is appropriate that something should be said about the manner in which a person may become a party to the Federal Court proceeding. First, it is necessary to refer to the provisions relating to parties to the application prior to it being referred to the Federal Court. The provisions of ss 66, 68 and 69 so far as they are relevant to this question are set out below: 66.(1) If an application is accepted under section 63, the Registrar must: (a) give notice of the application to all persons whose interests may be affected by a determination in relation to the application; and (b) ... (2) The Registrar is taken to have given notice to all persons whose interests may be affected by a determination in relation to an application if the Registrar: (a) gives notice containing details of the application to: (i) the area native title claimant (if any) in relation to the area covered by the application; and (ii) the Commonwealth Minister; and (iii) if any of the area covered by the application is within the jurisdictional limits of a State or Territory - the State Minister or Territory Minister for the State or Territory; and (iv) any registered native title body corporate in relation to any of the area covered by the application; and (v) any person who holds a proprietary interest in any of the area covered by the application, being an interest that is registered in a register of interests in relation to land or waters maintained by the Commonwealth, a State or a Territory; and (vi) any representative Aboriginal/Torres Strait Islander body for any of the area covered by the application; and (b) notifies the public in the determined way of the application. (3) A notice under subsection (2) must also state that: (a) if the application is a non-claimant application ... or (b) in any other case - a person who wants to be a party in relation to the application must notify the Registrar, in writing, within the period of 2 months starting on the day the notice is given. (4) ... 68.(1) The applicant is a party in relation to the application. (2) Another person is a party in relation to the application if: (a) the person is covered by any of subparagraphs 66(2)(a)(i) to (vi) or the person's interests may be affected by a determination in relation to the application; and (b) the person notifies the Registrar, in writing, within the period specified in the notice under section 66, that the person wants to be a party in relation to the application. 69.(1) If it is necessary for the purposes of this Division to decide whether the interests of a person may be affected by a determination, that matter is to be decided by the Tribunal and, if the Tribunal decides that the interests of a person may be affected, the decision of the Tribunal is conclusive. (2) For the purposes of making a decision under subsection (1), the Tribunal must be constituted by a presidential member.