FEDERAL COURT OF AUSTRALIA Brierley on behalf of the Walbunja People v Minister for Land & Water Conservation (NSW) [2002] FCA 1209 BRIERLEY ON BEHALF OF THE WALBUNGA PEOPLE v THE MINISTER FOR LAND AND WATER CONSERVATION & ORS NG 6046 of 1998 VIVIENNE ANNE MASON AND RONALD MASON ON BEHALF OF THE DJIRNGANJ PEOPLE v THE MINISTER FOR LAND AND WATER CONSERVATION & ORS NG 6080 of 1998 EMMETT J 13 SEPTEMBER 2002 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 6046 OF 1998 BETWEEN: JOHN BRIERLEY ON BEHALF OF THE WALBUNJA PEOPLE APPLICANT AND: THE MINISTER FOR LAND AND WATER CONSERVATION for the State of New South Wales & Others FIRST RESPONDENT AND OTHERS JUDGE: EMMETT J DATE OF ORDER: 13 SEPTEMBER 2002 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. pursuant to s 84(5) of the Native Title Act 1993 (Cth)("the Act"), New South Wales Native Title Services Limited, the body enable to perform functions of a native title representative body for the State of New South Wales, in accordance with the provisions of the Act, be joined as a party to proceeding; 2. in accordance with the provision of s 84(7) of the Act, the New South Wales Aboriginal Land Council, formerly the native title representative body for the State of New South Wales, be given leave to withdraw as a party to the proceeding; 3. the National Native Title Tribunal report no later than 31 January 2003 as to the progress of the mediations presently before us in relation to these two claims; and 4. the notice of motion of Mr John Broomhead filed 26 March 2002 be stood over until 7 February 2003 for hearing and argument. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 6080 OF 1998 BETWEEN: VIVIENNE ANNE MASON AND RONALD MASON ON BEHALF OF THE DJIRINGANJ PEOPLE APPLICANT AND: THE MINISTER FOR LAND AND WATER CONSERVATION for the State of New South Wales & Others FIRST RESPONDENT AND OTHERS JUDGE: EMMETT J DATE OF ORDER: 13 SEPTEMBER 2002 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. pursuant to s 84(5) of the Native Title Act 1993 (Cth)("the Act"), New South Wales Native Title Services Limited, the body enable to perform functions of a native title representative body for the State of New South Wales, in accordance with the provisions of the Act, be joined as a party to proceeding; 2. in accordance with the provision of s 84(7) of the Act, the New South Wales Aboriginal Land Council, formerly the native title representative body for the State of New South Wales, be given leave to withdraw as a party to the proceeding; 3. the National Native Title Tribunal report no later than 31 January 2003 as to the progress of the mediations presently before us in relation to these two claims; and 4. the notice of motion of Mr John Broomhead filed 26 March 2002 be stood over until 7 February 2003 for hearing and argument. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 6046 OF 1998 BETWEEN: JOHN BRIERLEY ON BEHALF OF THE WALBUNJA PEOPLE APPLICANT AND: THE MINISTER FOR LAND AND WATER CONSERVATION for the State of New South Wales & Others FIRST RESPONDENT AND OTHERS NG 6080 OF 1998 BETWEEN: VIVIENNE ANNE MASON AND RONALD MASON ON BEHALF OF THE DJIRINGANJ PEOPLE APPLICANT AND: THE MINISTER FOR LAND AND WATER CONSERVATION for the State of New South Wales & Others FIRST RESPONDENT AND OTHERS JUDGE: EMMETT J DATE: 13 SEPTEMBER 2002 PLACE: SYDNEY REASONS FOR JUDGMENT 1 In effect I have before me an application by two parties: first, by New South Wales Aboriginal Land Council that it be given leave to withdraw as a party and secondly, by New South Wales Native Title Services Limited that it be joined as a party to each of the two proceedings NG6046 of 1998 and NG6080 of 1998. I directed some months ago that written submissions be made concerning the Court's power to make the order joining New South Wales Native Services Limited. None of the parties opposes the proposed orders except for Mr Broomhead. 2 In Munn v The State of Queensland [2002] FCA 78, I expressed some reservations concerning the Court's power to join a body in circumstances similar to those presently under consideration. I have considered the decisions of French J in Walker on behalf of the Ngalia Kutjungkatja People v State of Western Australia [2002] FCA 869, of Hill J in Jack Woodridge on behalf of the Gomilaroi People v Minister for Land and Water Conservation for the State of New South Wales and Ors [2002] FCA 1109, of Lindgren J in Simms v Minister for Land and Water Conservation [2002] FCA 15 and of Madgwick J in Gale v NSW Minister for Land and Water Conservation [2002] FCA 972 concerning joinder. The Court in each of those cases expressed some concern as to the ambiguity of the legislation. 3 It is tolerably clear that the Parliament intended that a representative body would be a party to proceedings. That is clear from ss 84(3)(a)(i) and 66(3)(a)(ii), which provide that a registered native title body is deemed to be a party when an application is made. However, there may be a hiatus in the legislative scheme insofar as the Act does not expressly provide for joinder of a new representative party. 4 I am not entirely convinced that the interests of New South Wales Native Services Limited, in discharging its responsibilities under ss 203BJ(b), (d) and (e) to identify persons who may hold native title in the area of an application and to inform them and consult with indigenous communities that might be affected by the matters with which the body is dealing, constitute an interest in the proceeding within the meaning of s 84(5A). However, I am not satisfied that a conclusion to that effect is clearly erroneous. Accordingly, I would be disposed to follow the decisions to which I have referred and conclude that the Court does have power to join that body as a party. 5 Mr Broomhead does not challenge the Court's power, but says that as a matter of discretion, the Court should not join the body at this stage. He accepts that it is the function and responsibility of the body in question to look after the interests of all indigenous peoples who claim an interest in the land that is the subject of the application. Mr Broomhead asserts that to date, however, New South Wales Native Services Limited has not consulted adequately with him and those with the same interest as his. 6 He is concerned that such funds as are available are not being employed equitably in the interests of all possible claimants in relation to the land in question. If it be the fact that New South Wales Native Services Limited is not properly discharging its responsibilities, that is a matter that should be addressed. However, until such time as that body becomes a party to the proceeding, it would not be subject to regulation by the Court in relation to this proceeding. 7 It is open to the Court to remove a respondent. If it became apparent that New South Wales Native Services Limited is not discharging its responsibilities in an adequate fashion, that may be a ground for concluding that it no longer had an interest in the proceeding. However, if it is justiciable, that is a matter that should be considered only after proper evidence has been adduced concerning the activities of the body. 8 In the circumstances I propose to make the orders sought. The matter will be listed for directions on 7 February 2003 and, in the intervening period, as I understand it, mediation will proceed. I can do no more than express the earnest hope that the interests of Mr Broomhead will be consulted in an appropriate fashion by New South Wales Native Services Limited in connection with continuing mediation. 9 If there is evidence before me on the next occasion that there has not been appropriate consultation, that is a matter that will be taken into consideration in any application for removal, if such an application happened to be made. I will however order that the National Native Title Tribunal report no later than 31 January 2003 as to the progress of the mediations presently before it in relation to these two claims. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 27 September 2002 Counsel for the New South Wales Aboriginal Land Council and New South Wales Native Title Services Limited: Ms S. Phillips Counsel for Mr Broomhead: Mr J. Broomhead appeared by telephone. Date of Hearing: 13 September 2002 Date of Judgment: 13 September 2002