FEDERAL COURT OF AUSTRALIA Bennell v State of Western Australia [2008] FCA 1633 NATIVE TITLE – a new body was recognised as the representative body for an area – whether the former representative body for the area retained a sufficient interest to remain a party to the proceeding in respect of that area Native Title Act 1993 (Cth) Pt 11, Div 3, ss 66(3), 84(3), 84(8), 84(9), 203AD(4), 203FC Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 175 ALR 706 ANTHONY BENNELL AND ORS (SINGLE NOONGAR CLAIM NO 1) v STATE OF WESTERN AUSTRALIA AND ORS WAD 6006 of 2003 SIOPIS J 5 november 2008 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD 6006 of 2003 BETWEEN: ANTHONY BENNELL AND ORS (SINGLE NOONGAR CLAIM NO 1) Applicant AND: STATE OF WESTERN AUSTRALIA AND ORS Respondents JUDGE: SIOPIS J DATE OF ORDER: 5 november 2008 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The Noongar Land Council do cease to be a party to Part A and Part B of the native title determination application WAD 6006 of 2003. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD 6006 of 2003 BETWEEN: ANTHONY BENNELL AND ORS (SINGLE NOONGAR CLAIM NO 1) Applicant AND: STATE OF WESTERN AUSTRALIA AND ORS Respondents JUDGE: SIOPIS J DATE: 5 november 2008 PLACE: PERTH REASONS FOR JUDGMENT 1 The applicant on this motion is the South West Aboriginal Land and Sea Council Aboriginal Corporation (SWALSC), the representative body recognised under the Native Title Act 1993 (Cth) (the Act) for the south‑west of Western Australia. It is a party to this proceeding – which is known as the "Single Noongar Claim". The respondent to the motion, the Noongar Land Council, was previously, but is no longer, a recognised representative body under the Act. It is, however, also a party to this proceeding. The applicant brings this motion for an order that the Noongar Land Council cease to be a party to this proceeding on the grounds that it does not have a qualifying interest entitling it to be a party. The applicant in this proceeding supports SWALSC's motion. BACKGROUND 2 In 1996, the Noongar Land Council was appointed as a representative body under the Act. 3 On 23 September 1998, a claim group known as the Swan Valley Nyungah Community filed a native title determination application WAG 142/1998. This application was subsequently combined with five other native title determination applications. The combined application was given the file number WAG 142/1998 and became known as the "Combined Metro application". 4 In 1998, amendments were made to the Act which introduced a new regime for the appointment and regulation of representative bodies under the Act. The 1998 amendments provided that during a period, known as the "transition period", the then current representative bodies could apply for recognition as a representative body under the new regime. The transition period was to expire on 30 June 2000. The Noongar Land Council applied to be a recognised representative body under the new regime. 5 Following a notice issued on 7 July 2000 by the National Native Title Tribunal under s 66(3)(a) of the Act, the Noongar Land Council on 28 August 2000 applied to be registered as a party to the native title determination application WAG 142 of 1998. In support of its application to become a party, the Noongar Land Council provided the following information in its Form 5 as to the interest which it claimed entitled it to be made a party to the proceeding: The Noongar Land Council has applied to be a representative body pursuant to the Native Title Act for the whole of the land covered by native title determination application WG142/98 [sic]. 6 I infer that by that date, the Noongar Land Council's application for recognition under the new regime had not yet been determined. 7 On 12 September 2000, District Registrar Jan ordered that the Noongar Land Council be joined as a party to the application and that any party may apply to the Court for an order that the Noongar Land Council cease to be a party. 8 The application by the Noongar Land Council to be recognised as a representative body under the new regime was ultimately unsuccessful. On 21 December 2001, the Minister recognised SWALSC as the representative body for the south‑west of Western Australia. This area included the area covered by the Combined Metro application and the area in respect of which the Noongar Land Council had previously been the representative body. 9 Notwithstanding that the Noongar Land Council was unsuccessful in its application to be recognised as a representative body under the new regime, no party applied for an order that the Noongar Land Council cease to be a party to WAG 142 of 1998. 10 On 10 September 2003, this native title determination application WAD 6006 of 2003 was filed. The claim was made by 80 named applicants "on behalf of all Noongar people". The claim covered a wide area including the area covered by the Combined Metro application and the claim group was wide enough to include the persons who were claimants in the Combined Metro application. At the time of the filing of the claim, SWALSC was the relevant recognised representative body and it became a party to WAD 6006 of 2003. 11 On 9 October 2003, Wilcox J made an order that had the effect of combining application WAG 142 of 1998 and this native title determination application. As a consequence of that order the Noongar Land Council, having previously been a party to application WAG 142 of 1998, thereby became a party to this native title determination application. DOES THE NOONGAR LAND COUNCIL HAVE A SUFFICIENT INTEREST? 12 In support of its motion, the applicant relies upon ss 84(8), 84(9)(a) and 84(9)(b) of the Act. These sections provide as follows: 84(8) The Federal Court may at any time order that a person, other than the applicant, cease to be a party to the proceedings. 84(9) The Federal Court is to consider making an order under subsection (8) in respect of a person who is a party to the proceedings if the Court is satisfied that: (a) the following apply: (i) the person's interests may be affected by a determination in the proceedings merely because the person has a public right of access over, or use of, any of the area covered by the application; and (ii) the person's interests are properly represented in the proceedings by another party; or (b) the person never had, or no longer has, interests that may be affected by a determination in the proceedings. 13 The applicant contends that the Noongar Land Council does not have, and never had, an interest under s 84(9) of the Act in this native title determination application. 14 I granted Mr Peter David leave to represent the Noongar Land Council to oppose the applicant's motion. 15 The Noongar Land Council submitted that while it was the recognised representative body, it had registered, on behalf of different claim groups, a number of claims in respect of areas which the Single Noongar Claim had overlapped; and that, although these claimants were now included within the scope of claimants in the Single Noongar Claim, there were a number of these persons who were dissatisfied with the representation of SWALSC. It contended that the Noongar Land Council's qualifying interest in this proceeding was to act as the representative for those claimants who were disaffected by the representation of SWALSC. This, contended the Noongar Land Council, was an interest sufficient to entitle it to be a party to this proceeding. 16 In my view, the Noongar Land Council does not have sufficient interest to permit it to remain as a party to this application. 17 The functions of a recognised representative body are set out in Pt 11, Div 3 of the Act. They are essentially directed towards assisting the native title claimants in relation to matters associated with native title related claims. However, notwithstanding that a representative body's interest in a native title proceeding is thus confined, the Act, by s 84(3) and s 66(3)(a), nevertheless, recognises that a representative body under the Act has the standing to become a party to a native title determination application. 18 The statutory scheme of the new regime introduced the concept that there was to be only one representative body for each designated area at the one time (s 203AD(4)). It was also part of that statutory scheme that any former representative body which was unsuccessful in its application to be recognised under the new regime, lost its status as a recognised representative body and was to make way for the replacement representative body. This is evident from s 203FC of the Act as it stood at the time that the 1998 amendments were introduced. It provided: Commonwealth Minister may issue directions (1) The Commonwealth Minister may, by written instrument, issue directions requiring, or relating to, either or both of the following: (a) … (b) the former representative body allowing access to, giving or giving copies of documents and records held by the former representative body to a body (the replacement body) that has become the representative body for all or part of the former representative body's former area, where the documents and records are reasonably necessary for the performance of the functions, or the exercise of the powers, of the replacement body. (Original emphasis.) 19 In the case of Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 175 ALR 706, Merkel J examined the legislation introducing the new regime for the appointment and operation of representative bodies under the Act and observed at 709‑710, at [8]‑[9]: The Native Title Amendment Act 1998 (Cth) (the 1998 amending Act) established a new regime under the NTA for representative bodies. During the transition period (30 October 1998 to 30 June 2000) representative bodies were required to perform their existing functions, as well as certain additional functions… At the conclusion of the transition period, the earlier representative body regime under the NTA was repealed and, as from 1 July 2000, the new representative body regime established under the 1998 amending Act commenced. Under the new regime only one representative body is to perform the functions set out in s 202(4) for each of the newly defined areas throughout Australia: s 203AD(4). Thus, if a representative body was not recognised in respect of the new area it ceased to have any statutory role or functions under the NTA in respect of its area after 1 July 2000. 20 Accordingly, as a consequence of the Noongar Land Council failing to secure recognition as a representative body under the new regime, it has ceased to have any statutory role or functions under the Act. 21 As set out at [11] above, the Noongar Land Council became a party to this proceeding by reason of having been a party to WAG 142/1998. The basis on which the Noongar Land Council applied to become, and was made, a party to WAG 142/1998, was founded on its status as a representative body under the former regime and its candidature for recognition as such under the new regime. Further, the basis on which the Noongar Land Council asserts its continuing entitlement to being a party is founded upon its claim to exercise a representative function, namely, to represent dissident interests within the claim group for the Single Noongar Claim. 22 The Act provides that only a recognised representative body has the standing to be a party to a proceeding. It follows that because the Noongar Land Council was unsuccessful in its application for appointment under the new regime, it lost its status as a representative body. It also, thereby, lost the right to exercise the functions of such a body, and consequently lost its standing to be, or continue to be, a party to a native title determination proceeding. 23 Further, the Act does not provide for any entitlement for a body to become, or remain, a party to a native title determination proceeding on the basis that it represents dissident members of a claim group. 24 It follows that the Noongar Land Council does not, therefore, have a sufficient interest entitling it to be, or continue to be, a party to this proceeding. 25 Accordingly, I will grant the relief sought in SWALSC's notice of motion. I certify that the preceding twenty‑five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate: Dated: 5 November 2008 Counsel for the Applicant: Mr V Hughston SC with Ms T Jowett Solicitor for the Applicant: Mr R Hickson of SWALSC Counsel for South West Aboriginal Land and Sea Council Aboriginal Corporation: Mr S Blackshield Solicitor for South West Aboriginal Land and Sea Council Aboriginal Corporation: Mr R Hickson of SWALSC Noongar Land Council: Mr P David appeared by leave for the Noongar Land Council Counsel for the State of Western Australia: Mr S Wright Solicitor for the State of Western Australia: State Solicitor's Office Counsel for The Commonwealth of Australia: Ms S Oliver Solicitor for The Commonwealth of Australia: Australian Government Solicitor Counsel for Western Australian Fishing Industry Council: Mr M McKenna Solicitor for Western Australian Fishing Industry Council: Hunt & Humphry Counsel for Mining and Other Interests: Mr S Hardcastle Solicitor for Mining and Other Interests: Freehills Counsel for Various Pastoral Interests: Mr J Steenhof Solicitor for Various Pastoral Interests: Cornerstone Legal Counsel for DBNGP (WA) Nominees Pty Ltd: Mr K Welker Solicitor for DBNGP (WA) Nominees Pty Ltd: Blake Dawson Date of Hearing: 14 August 2008 Date of Judgment: 5 November 2008