FEDERAL COURT OF AUSTRALIA Walker v State of South Australia [2012] FCA 1092 Citation: Walker v State of South Australia [2012] FCA 1092 Parties: LANCE GILBERT WALKER v STATE OF SOUTH AUSTRALIA File number: SAD 162 of 2010 Judge: MANSFIELD J Date of judgment: 5 October 2012 Cases cited: Byron Environment Centre Inc v The Arakwal People (1997) 78 FCR 1 – applied Far West Coast Native Title Claim v State of South Australia (2011) 191 FCR 381 - cited Budby on behalf of the Barada Barna People v State of Queensland [2010] FCA 1017 - cited Date of hearing: Heard on the papers Date of last submissions: 15 August 2012 Place: Adelaide Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 16 Counsel for the applicant: The applicant appeared in person Counsel for the State of South Australia: A Jantke Solicitor for the State of South Australia: Crown Solicitor Counsel for the Commonwealth: S Davis Solicitor for the State of South Australia: Australian Government Solicitor Counsel for the Ngarrindjeri People: S Berg Solicitor for the Ngarrindjeri People: Berg Lawyers Counsel for the Kaurna People: T Campbell Solicitor for the Kaurna People: Campbell Law Counsel for the Local Government Interests: L Hubbard Solicitor for the Local Government Interests: Norman Waterhouse Counsel for the Pastoralists: T Mellor Solicitor for the Pastoralists: Norman Waterhouse IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 162 of 2010 BETWEEN: LANCE GILBERT WALKER Applicant AND: STATE OF SOUTH AUSTRALIA Respondent JUDGE: MANSFIELD J DATE OF ORDER: 5 OCTOBER 2012 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The application of Kelly Henderson to be joined as a respondent is refused. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 162 of 2010 BETWEEN: LANCE GILBERT WALKER Applicant AND: STATE OF SOUTH AUSTRALIA Respondent JUDGE: MANSFIELD J DATE: 5 OCTOBER 2012 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 Ms Kelly Henderson has applied to be joined as a respondent party to this proceeding under s 84(5) of the Native Title Act 1993 (Cth) (the NT Act). 2 Section 84(5) provides: The Federal Court may at any time join any person as a party to the proceedings, if the Court is satisfied that the person's interests may be affected by a determination in the proceedings and it is in the interests of justice to do so. 3 It is accepted that Ms Henderson is not entitled as of right to become a party to this proceeding under s 84(3) of the NT Act. 4 "Interest" is defined in s 253 of the NT Act as follows: 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. 5 Ms Henderson is President of the Adelaide Park Lands Preservation Association Inc (APLPA) but makes the application as an individual and not on behalf of the APLPA. 6 The Ramindjeri native title claim was filed on 22 October 2010 over an area roughly comprising of the Adelaide Plains, the Fleurieu Peninsula and Kangaroo Island. 7 On 19 July 2011 Ms Henderson applied to become a party to the application. In her application and subsequent affidavit of 22 July 2012 Ms Henderson describes her "interests" (in quotes simply to distinguish her claimed interest from the defined expression) as being confined to lands and waters of the Adelaide Park Lands and City Squares within the City of Adelaide. That is, of course, only a limited part of the claim area. She develops that claim in the following ways: (1) Ms Henderson, as a resident of the City of Adelaide, is a beneficiary of the Adelaide Park Lands Trust, which was established as the Adelaide Park Lands were purchased in fee simple absolute to be reserved for public purposes for the benefit of Adelaide's inhabitants. (2) Ms Henderson currently enjoys rights and privileges such as free and unobstructed access and enjoyment of the Adelaide Park Lands as well as carrying out conservation and other projects and participating in the decision-making processes for managing the Park Lands and City Squares. (3) Ms Henderson is particularly interested in the Adelaide Park Lands, describing herself as having made a substantial investment of time and resources over several years in study and conservation, including volunteering in the furtherance a World Heritage nomination of William Light's City of Adelaide and its Park Lands, which she considers may be adversely impacted by a native title determination not properly informed of key facts as to the authenticity and integrity of the claim. 8 Interests likely to be affected by a native title determination for the purposes of s 84 are greater than those of the general public: Byron Environment Centre Inc v The Arakwal People (1997) 78 FCR 1 at 6 per Black CJ (Byron Environment Centre). They must have a genuine foundation and be capable of clear definition, and must not be indirect, remote or lacking substance. Interests of an emotional, conscientious, ideological or intellectual kind only are not considered interests for the purposes of s 84 as this would not advance the objects of the Act: Byron Environment Centre at 7-8 per Black CJ and at 37 per Merkel J. Black CJ at 9 said of the then s 68 of the NT Act: If the Parliament had intended to give any person who felt strongly about the matter a right to be a party, with the consequences that entails, it would not have used the language of "interests affected", as it has in s 68(2)(a) and comparable sections. Rather it would have used language such as appears in s 141(3) of the Act which allows "any other person" to become a party, with leave. Of course, an interest sufficient for the purposes of s 68(2)(a) may well be accompanied by an emotional or intellectual concern and none of this is to say that such concerns are in any way disqualifying, but they are not in themselves sufficient. (references omitted) 9 Those observations have been applied to s 84(5) of the NT Act: Far West Coast Native Title Claim v State of South Australia (2011) 191 FCR 381; Budby on behalf of the Barada Barna People v State of Queensland [2010] FCA 1017. 10 I am not satisfied that Ms Henderson has interests in the parts of the claim area to which she refers which may be affected by a determination of native title either generally or in relation to the Adelaide Park Lands and City Squares of the City of Adelaide in the proceedings. 11 In respect of her first contention, namely that she has an equitable interest in that particular land arising from the original purchase of the Adelaide Park Lands, that claim is not made out. The only supporting evidence provided by Ms Henderson is a reference to an article written by herself and published in Parklands News, a publication of the APLPA of which she is currently President. There is no foundation laid to show that Ms Henderson has any interest, legal or equitable, in the Adelaide Park Lands or the City Squares which she could assert as an individual against the applicant or the Ramindjeri People (assuming they have native title rights over that part of the claim area). The Corporation of the City of Adelaide, which is a respondent to the native title claim, may itself have such rights, but it is not necessary on the present joinder application to determine whether that is so, or if such rights exist to determine their extent. On the basis that the Corporation of the City of Adelaide has such rights, there is no reason to conclude that they will not be propounded in due course. The consequence is that, in addition or alternatively, Ms Henderson's asserted rights or entitlements as a person entitled to enjoy the Adelaide Park Lands and City Squares are no greater than that of a member of the general public, and those rights or entitlements can be protected by the Corporation of the City of Adelaide to the extent appropriate. 12 In respect of Ms Henderson's claim of rights and privileges "such as free and unobstructed access, enjoyment, carrying out conservation and other projects and in the decision-making processes for managing Park Lands and City Squares", the same reasoning leads to that conclusion that it has not been established that Ms Henderson exercises rights that were special to her and are not rights and privileges generally available to members of the public: see Adelaide Parklands Act 2005 (SA) s 4. Ms Henderson relied upon the examples set out by Lockhart J in Byron Environment Centre at 18 where non-proprietary interests of members of the public were recognised as the basis of joinder applications, such as the interests of residents who frequently enjoy walking along and access to the beach, in a claim where exclusive native title rights were being sought. 13 Black CJ stated in that case at 8: [e]ach case will of course turn on its own facts and whether or not interests will or may be affected will turn upon an assessment of the interaction between the interests asserted by a person who wants to be a party and the nature and extent of the native title rights and interests claimed. The claim as currently framed has the Ramindjeri People making a general claim for exclusive possession over an area that includes the Adelaide Park Lands and City Squares. However, it is common to assert such rights and then to acknowledge the generic extinguishment of the extent to which exclusivity is claimed. The Corporation of the City of Adelaide, as a respondent, is in a position to advance such material as appropriate on that matter. The State has pointed out its submission that it is unlikely that the claim of exclusive possession over any area of the Adelaide Park Lands and City Squares can succeed. Any native title right to exclusive possession over the Adelaide Park Lands and City Squares has, it submits, been extinguished by the numerous Acts and Ordinances which have vested those areas in the Crown and granted the care, control and management to the Corporation of the City of Adelaide, and it would be inconsistent with the statutory rights of use and enjoyment of the Adelaide Park Lands given to the people of South Australia under the Adelaide Parklands Act 2005 (SA). Ms Henderson's claimed rights of access and enjoyment will not be affected by any determination in the proceedings, because those rights, which she shares with the public in general, will be protected in any event by the Corporation of the City of Adelaide, and so it is not in the interests of justice that she as an individual, but concerned, member of the public should be separately joined as a party. 14 The final interest described by Ms Henderson concerns her interest in the study and conservation of the Adelaide Park Lands for their heritage and environmental values. In my view, reflecting the Full Court decision in Byron Environment Centre, the particular personal interests of Ms Henderson are not within the range of the interests referred to in s 84(5) of the NT Act. In that case, Merkel J at 37 expressed the view that s 84(5) was not intended to extend to interests involving merely "intellectual, conscientious or environmental considerations". I respectfully agree with his Honour. As he later said at 45: It takes little imagination to conceive of the variety of ideological or conscientious interests or groups that may be genuinely and deeply committed to supporting or opposing native title claims in particular areas of Australia. To afford such interests or groups the standing of a party under the Act is a recipe for promoting, rather than resolving, differences. If the public interest can be a relevant factor in determining a party's attitude to a native title claim, that aspect is dealt with under the Act by giving standing, as of right, to the relevant Commonwealth, State or Territory Ministers. 15 Accordingly, I am not persuaded that Ms Henderson has interests which may be affected by a determination of native title in this proceeding, and additionally and alternatively, I think that the interests of justice are not served in the particular circumstances by joining her as a party to the proceeding even if she had an interest encompassed by s 84(5). 16 Her application to be joined as a party is refused. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 5 October 2012