FEDERAL COURT OF AUSTRALIA Agius v State of South Australia (No 2) [2013] FCA 417 Citation: Agius v State of South Australia (No 2) [2013] FCA 417 Parties: GARTH AGIUS & OTHERS v STATE OF SOUTH AUSTRALIA File number: SAD 6001 of 2000 Judge: MANSFIELD J Date of judgment: 10 May 2013 Date of hearing: 8 October 2012 Date of last submissions: 8 November 2012 Place: Adelaide Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 21 Counsel for the Applicant: T Campbell Solicitor for the Applicant: Campbell Law Counsel for the State of South Australia: A Jantke Solicitor for the State of South Australia: Crown Solicitor Counsel for Mr Millison and Ms Millison: Mr Millison and Ms Millison appeared in person IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 6001 of 2000 BETWEEN: GARTH AGIUS & OTHERS Applicant AND: STATE OF SOUTH AUSTRALIA Respondent JUDGE: MANSFIELD J DATE OF ORDER: 10 MAY 2013 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. Milan Millison and Linda Millison be removed as parties to this application. 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 6001 of 2000 BETWEEN: GARTH AGIUS & OTHERS Applicant AND: STATE OF SOUTH AUSTRALIA Respondent JUDGE: MANSFIELD J DATE: 10 MAY 2013 PLACE: ADELAIDE REASONS FOR JUDGMENT iNTRODUCTION 1 This application is for the determination of native title rights and interests over extensive areas of the Adelaide Plains and associated areas. It is not necessary to describe the claim area with any precision. The applicant brings the claim on behalf of the Kaurna Peoples. 2 Milan Millison and Linda Millison became parties to this application on 25 March 2011. They claimed that status by virtue of their "interest" in Allotment 51, Town of St Kilda (Lot 51), in the claim area, because it is an area of land adjacent to an allotment owned by them. It is within the claim area. They said that their interests would be affected by any determination of native title in the application itself. The nature of their "interest" in Lot 51 is more fully explained in Agius v State of South Australia [2012] FCA 714 (Agius). 3 By the decision in Agius, I refused an application by the Millisons for an order that s 47B of the Native Title Act 1993 (Cth) (the NT Act) applies to Lot 51. I rejected their contention that Lot 51 was subject to a resumption process as defined in s 47B(1)(b)(iii) and s 47(5)(b), so that any native title rights and interests in Lot 51 have been extinguished. If that proposition had been accepted, the Millisons could have continued to negotiate with the State to obtain a grant of part of the land in Lot 51. 4 As that issue was resolved adversely to the Millisons, I also ordered that they should be removed as parties to the application unless they filed and served notice of their intention to remain as parties on some other basis within 28 days. I made that order because I understood that the circumstance distinguishing the Millisons from other landowners in the claim area was simply their interest in securing title to Lot 51 or part of it, which in turn depended on it being shown that any native title over Lot 51 had been extinguished. 5 The Millisons took up the invitation to establish their status as a party to the application on some other basis within 28 days. Directions were given for the filing of relevant evidence, and for the exchange of submissions. 6 I have now considered that material. For the reasons given, I do not consider that the Millisons have any other interest in the claim area of such a nature as to warrant them remaining as parties to the application. 7 I therefore order that they be removed as parties to the application. The Basis of the PRESENT Claim 8 The present claims of the Millisons are expressed in Mr Millison's affidavit of 31 July 2012 in the following way: 4. That both my wife Linda Millison and I have ongoing concerns revolving around home security and the peaceful amenity of our residence that can potentially deteriorate from the outcome of the Application. 5. That by remaining Parties to the Application I believe we will be in a better position to further negotiate and seek agreements under the Act with both the Applicants and the State of South Australia to ameliorate our concerns. 6. That I believe the response letter we received dated 1 July 2011 from the legal Representative of the Kaurna Yerta Aboriginal Corporation supporting our continued usage of Lot 51 Town of St Kilda for the purpose of native revegetation (see copy attached hereto marked Annexure MM1) evidences our need to remain involved in this Application. 9 The letter referred to was very brief. On behalf of the Kaurna Yerta Aboriginal Corporation, which represents the Kaurna Peoples, it agrees to support the Millisons using Lot 51 for the purpose of native revegetation. It offers to write to the State in support, if required. Consideration 10 Section 84(5) of the NT Act 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. 11 "Interest" is defined in s 253 of the 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. 12 For reasons which appear below, I do not assume that the word "interests" in s 84(5) has the same meaning as "interest" as defined in s 253. 13 Section 84(8) of the NT Act empowers the Court at any time to order that a person, other than the applicant, cease to be a party to the proceedings. 14 Obviously, therefore, having regard to what was decided in Agius referred to in [3] above, the question to be addressed is whether the interests of the Millisons nevertheless may be affected in any relevant way by a determination in the application by reason of the claims set out in [8] above. 15 In Byron Environment Centre Inc v The Arakwal People (1997) 78 FCR 1 at 7 (Byron), Black CJ said: I have already noted that the interests affected must be greater than those of a member of the general public. They must also be genuine and the affectation must be genuine, for the Parliament cannot have contemplated that the rights given to persons as parties would have other than a genuine foundation. 16 Merkel J in the same case at 43 concluded: … that the following principles are applicable in determining standing under the Act: • the interest required to be a party in the NNTT under s 68(2) is not limited to an interest in relation to land or waters as defined by s 253 • the interests of a person that may be affected by a determination for the purposes of s 68(2) are to be genuine, demonstrable, not indirect and not remote or so insubstantial that it will be mere speculation as to whether and, if so, how the interests may be actually affected by the determination • the requisite interest is one which can be defined with reasonable certainty and is in each case readily ascertainable as a matter of fact and law • intellectual, emotional, conscientious, ideological or representative interests are not sufficient or relevant interests for the purposes of s 68(2) • whether a person has the requisite or a sufficient interest involves questions of degree and fact in each case. 17 In this matter, I am not satisfied that the present concerns of the Millisons about Lot 51 are of such a character as to justify them remaining as parties to the application. 18 In so far as their concerns revolve around home security and peaceful amenity, that is an "interest" that will be unaffected by any determination of native title. Native title is declaratory. That is, it recognises the existence of native title from the time of settlement. It does not, by the determination, create native title rights and interests. So, if the application is successful, the rights and interests of the Kaurna Peoples – if they existed at settlement and have not been subsequently extinguished – will simply be recognised. There will be no change in the status of the Millisons' home security. In any event, there is nothing identified which suggests that the Millisons' concern about their home security or the peaceful amenity of their residence is an element which distinguishes them from the ordinary members of the public. Consequently, I do not consider that those concerns are properly elevated into "interests" of the kind contemplated by s 84(5). That view is consistent with the approach of the Full Court in Byron referred to above. 19 There is also no foundation for thinking that the desire of the Millisons to negotiate with the State and to seek agreements with the applicant and the State in relation to the use of Lot 51 constitutes such an interest. The application has been registered under Part 7 of the NT Act, so the Millisons may now conduct such negotiations with the applicant and the State as are appropriate. The status of the Millisons in that regard will not be enhanced by their remaining as parties to the application; indeed, there is a real question whether party status should be granted simply for the purpose of enhancing that capacity. It is not necessary to take that question further. 20 Finally, to the extent that the Millisons base their claimed party status on their particular concern about supporting native revegetation of the area which is, or includes, Lot 51, there is again no evidence which would convert that "interest" – even if it is not one commonly shared with other landowners in the vicinity – to one recognised by s 84(5) as sufficient to accord them continuing party status in the proceeding. It is no more, on the evidence, than their desire as good citizens to restore native vegetation to what is presently apparently unoccupied land. It is not based on any claimed especial right to undertake that project, different from that of other right-minded citizens. Conclusion 21 For the reasons given, I now order that the Millisons be removed as parties to the application. That order does not prevent them from engaging in native revegetation of Lot 51, in conjunction with the State or local government and with the support of the applicant. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 10 May 2013