Aboriginal Law Bulletin --- "Admission of Third Parties to Native Title Claims: Yorta Yorta Aboriginal Community v State of Victoria & Ors" [1996] AboriginalLawB 55; (1996) 3(83) Aboriginal Law Bulletin 15

• Admission Of Third Parties To Native Title Claims: Yorta Yorta Aboriginal Community V State Of Victoria &Amp; Ors

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Admission of Third Parties to Native Title Claims:
Yorta Yorta Aboriginal Community v State of Victoria & Ors

Yorta Yorta Aboriginal Community v State of Victoria & Ors

Federal Court of Australia, Olney J

13 October 1995

VG6001/1995

Graeme Ross McPherson and the Victorian Field and Game Association Incorporated ('the VFGA') applied to the Federal Court to be joined as parties to the Yorta Yorta native title claim. The application was heard on 13 October 1995.

Mr McPherson was a resident of the claimed area. He claimed to have a strong attachment to the area, which involved fishing, hunting and other recreational pursuits on a weekly basis.

The VFGA had 8 branches and 643 members in the claimed area. It professed to represent the recreational hunting and sporting shooters' interests in that area.

When the Yorta Yorta people first commenced their claim in the National Native Title Tribunal ('the NNTT'), the provisions for notifying interested parties, as contained in the Native Title Act 1993 (Cth) ('the NTA') were followed. Mr McPherson and the VFGA applied, under s68(1)(b), to be parties to the s72 conferences. (Section 72 conferences are 'without prejudice' conferences aimed at assisting the various parties to a native title application to reach non-litigated agreements on matters.) The NNTT Deputy President, who presided over the s72 conferences, refused to recognise that the parties had standing. The Deputy President gave reasons that he was not satisfied that their interests may be affected by a native title determination.

The s72 conferences were unsuccessful, and the NNTT Registrar lodged an application with the Federal Court. The two parties sought leave, pursuant to s84(2) of the NTA, to be joined to the proceedings in the Federal Court.

The issue for determination was whether the interests of Mr McPherson and the VFGA would be affected by a native title determination, and thus whether they should participate in the native title proceedings.

'Interest' in relation to land and waters is defined under s252 of the NTA. The parties claimed that they did not have a relevant interest under s252 in relation to land and waters, but claimed to have an interest that may be affected by a determination of the proceedings.

His Honour stated that a party 'does not have to establish an interest in relation to land or waters (as defined) in order to be granted leave to be joined as a party pursuant to s84(2)'.

Olney J arrived at this conclusion for two reasons.

The first was that the term 'interest' in s84(2) is not referable to land and waters. If Parliament had intended it to refer to a person's interests in relation to land and waters, it would have used that phraseology, as it had done in many other sections of the NTA.

The second reason stated by Olney J was that a determination of native title under s225(b)(ii) of the NTA could involve native title holders exercising exclusive use of and enjoyment over the land and waters. This exclusive use could affect people who habitually use or enjoy the land, by virtue of mere acquiescence or licence.

His Honour went on to state that it is always a question of fact whether a person's interests may be affected by a native title determination. He stated that Mr McPherson had established that his interests may be affected by a determination in the native title proceedings in question. He was also satisfied that there was potential for the pursuits of the VFGA members to be curtailed in the event of a native title determination. Accordingly, orders were made granting leave for Mr McPherson and the VFGA to be joined as parties to the Yorta Yorta claim.