Attorney-General for the N.T. of Australia, The v Aboriginal Affairs & Anor, Min for ( Hand,G.L.)

Re: THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA
And: THE HONOURABLE GERARD LESLIE HAND, MINISTER FOR ABORIGINAL AFFAIRS; THE
NORTHERN LAND COUNCIL and IN THE MATTER OF THE FINNISS RIVER LAND CLAIM
No. G273 of 1987
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Foster J.(1)

CATCHWORDS

Administrative Law - denial of natural justice - recommendation made to the Governor-General by the Minister for Aboriginal Affairs pursuant to s. 11 of the Aboriginal Land Rights (Northern Territory) Act, 1976 - two areas of the Finniss River to be granted to an Aboriginal Land Trust - certain representations favourable to the decision to recommend made ex-parte to the Minister and not referred to the Applicant for its consideration and response - As to the first of the areas, breach of natural justice - As to the second of the areas, doubt whether representations amount to material updating and elucidating - In each instance, in exercise of discretion, relief refused.

S. 11 Aboriginal Land Rights (Northern Territory) Act, 1976

Administrative Decisions (Judicial Review) Act, 1977

Minister for Aboriginal Affairs & Anor. v. Peko Wallsend Ltd. & Ors. (1986) 162 CLR 24.

HEARING

SYDNEY

#DATE 28:3:1988

Applicant: D.M.J. Bennett, Esq., QC and J.D. Barrett, Esq

Instructed by: The Northern Territory Department of Law

By their Agents: Messrs. Freehill Hollingdale & Page

First Respondent: D. Graham, Esq., QC and A. Robertson, Esq.

Instructed by: The Australian Government Solicitor, Darwin

ORDER

The application is dismissed.

Each party pay its own costs.

JUDGE1

These proceedings are brought by the applicant on behalf of the Government of the Northern Territory of Australia. The proceedings relate to two areas of land on the Finniss River in the Northern Territory. These areas are unalienated Crown land and are vested in The Government of the Northern Territory.

On the 2nd June, 1987 the first respondent, The Minister for Aboriginal Affairs, (then The Honourable Allan Clyde Holding, now the Honourable Gerard Leslie Hand), pursuant to his powers under s. 11 of the Aboriginal Land Rights (Northern Territory) Act, 1976 (as amended) ("The Act") decided that he should recommend to the Governor General that the areas be granted to an Aboriginal Land Trust established under the Act.
The applicant seeks a review of this decision under the Administrative Decisions (Judicial Review) Act, 1977 and an appropriate order setting aside the decision and remitting the matter to the respondent for reconsideration according to law. The complaint made is basically one of denial of natural justice.
The second respondent, the Northern Land Council, was permitted, by order of the Court, to intervene in the proceedings for the purpose of submitting that the application should be refused. The Council, of course, in so doing, represents the interests of the Aboriginals who would have the benefit of the grant of the land to the relevant Trust. It appears from the evidence that some seventy Aboriginals of the Marranunggu people are the Aboriginals involved.
A number of grounds were set out in the application. At the hearing, however, the sole ground argued was that certain representations favourable to the decision to recommend were made ex parte to the Minister and that these representations were never brought to the notice of the applicant nor was any opportunity afforded to the applicant to respond to them before the decision was made.
Before considering these representations and the submissions made in respect of them, it is necessary to set out the relevant history of the matter.
The areas of land in question are clearly shown on more than one map, being an exhibit or part of an exhibit in this case. There is no need for me to set out in these reasons a precise description of the areas involved. In the original proceedings before the Aboriginal Lands Commissioner, to which I shall make reference below, the areas in question were referred to as "The whole of area one of the Finniss River Land Claim and part of area two". These areas were the subject of recommendation for grant in the report of the learned Commissioner. They have retained the same name during the course of the further considerations of the Minister and the Department. Area one covers about forty two square kilometres and is bounded to the north by the Finniss River and to the south by the Wagait Reserve, which is Schedule One Aboriginal Land under the Act. Area two was about 334 square kilometres in size, lying between area one and the Darling River Dam. A portion only of this area is in question, being the portion recommended for grant by the land Commissioner. It is bounded on the south by the Finniss River.
Both area one and the whole of area two were the subject of claims brought by Aboriginal peoples under the provisions of the Act. The claim was brought by the Northern Land Council. The claim covered three additional areas as well as areas one and two.
Pursuant to his powers and duties under Part V of the Act, the Aboriginal Land Commissioner, Toohey, J., held an inquiry into the claim. After preliminary matters had been attended to, the substantive hearing commenced on the 11th August, 1980. The learned Commissioner presented his report to the then Minister for Aboriginal Affairs, Senator The Honourable Peter Baume, on the 22nd May, 1981. In the report he recommended (inter alia) that the subject areas be granted to a single Aboriginal Land Trust for the benefit of the aboriginals to whom I have already made reference. He also reported on the detriment which could accrue to others from such a grant. It then fell to the Minister to consider, pursuant to the Act, whether he should recommend to the Governor General that the grant be made. The decision so to recommend was not made in respect of the subject areas until the 2nd June, 1987. It appears that no decision has yet been made in respect of the remaining areas, three, four and five.
I see no need to set out the sections of the Act defining the powers and duties of the Commissioner and of the Minister. The construction of the relevant sections has been considered by the High Court of Australia in Regina v. Toohey; Ex parte Meneling Station Pty. Ltd. (1982) 158 CLR 327. In Minister for Aboriginal Affairs v. Peko-Wallsend Ltd. 162 CLR 24 at 56, Brennan, J. says:-

"The statutory scheme was examined in Reg. v. Toohey; Ex parte Meneling Station Pty. Ltd.

(1982) 158 CLR 327. The scheme provides for the Minister to give consideration to the comments in the Commissioner's report relating to the advantage to some people and the detriment to others which might follow from the making of a grant of land to a Land Trust. The essential features of the scheme are: first, the Commissioner must find whether there are traditional Aboriginal owners of the subject land (a finding which involves an inquiry into the boundaries of the land, the identity of the persons having a relationship with the land and the strength of the traditional attachment of those persons to that land). Secondly, if he finds that there are traditional owners of the land, the Commissioner must recommend that the land or part of the land be granted in accordance with ss. 11 and 12. Thirdly, the Commissioner must inquire into and make a report containing his comments on the several matters mentioned in s. 50(3), including advantage and detriment. Fourthly, where the Commissioner recommends the grant of land, the Minister is bound to have regard to the whole of the report, including the Commissioner's comments on the matters mentioned in s. 50(3) as well as the Commissioner's findings and recommendation. Fifthly, the Minister decides whether he is satisfied that an area of land should be granted to a Land Trust for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of that area. And sixthly, if he is so satisfied, he makes the necessary recommendation to the Governor-General in Council and the grant is made. The scope and purpose of the Act make manifest the Parliament's intention that the Minister should have regard to the Commissioner's report which is presented to the Minister in accordance with the statutory scheme. And therefore, as I said in Meneling Station in reference to the Minister's consideration of the Commissioner's report, (1982) 158 CLR at p 362:- 'The Minister, having regard to the Commissioner's recommendation that it would be right for the Crown to grant the land in satisfaction of the traditional owners' needs and entitlement, must decide whether other factors warrant refusing the grant recommended, and in reaching his decision the Minister is bound to have regard also to the Commissioner's comments upon the matters referred to in paras. (a) to (d) of s. 50(3)'."

In relation to the subject areas, the learned Commissioner considered the question of detriment pursuant to 50(3)(b). The only matters of detriment relevant to the applicant's complaint in these proceedings, were set out in paragraphs 375 to 386 of his report. In these paragraphs, he dealt with potential detriment to particular groups of the public of the Northern Territory relating to restriction on recreational use of the land, should it be granted to a Land Trust. The learned Commissioner had previously pointed out that once land became Aboriginal land by virtue of a grant being made, it no longer lay within the power of the Northern Territory legislature to require that any portion of that land be made available to other persons for recreational or any other purpose.
It appears that the Northern Territory Government did not itself present evidence or submissions as to the recreational use of land within the boundaries of areas one and two, but that special interest groups, such as the Northern Territory Association of Four Wheel Drive Clubs and persons interested in fishing in the Finniss River and picnicking along particular parts of its banks gave evidence and made submissions, which were the subject of comments in these paragraphs of the report. Although some criticism was made, in argument before me, of the absence of any submission to the Commissioner in this regard by the Government itself, I am quite satisfied that it is appropriate for the applicant in these proceedings to espouse, as he does, on behalf of the Government the question of detriment relating to deprivation of or interference with recreational use of portions of the banks of the Finniss River in the subject areas.
Put simply, the Government's concerns relate to the use, for recreational purposes, of a particular portion of the south bank of the Finniss River in area one and also of an established picnic area in the vicinity of portion of area two, described as the Finniss River Crossing. The applicant's complaint before me is that, subsequent to the report by the Commissioner additional material relating to this aspect of detriment was provided to the Minister by the Northern Land Council and by certain aboriginals, which material was never referred to the applicant for comment or response.
Before considering the content of this additional material, I think it necessary to set out the comments, which the learned Commissioner was able to make in his report and also the significant events occurring in relation to areas one and two since the report was provided to the Commonwealth, on the 22nd May, 1981.
The learned Commissioner, in dealing with the "Recreational use of claim areas" said (at paragraph 375):-

"Unfortunately, the Northern Territory Government presented no material on this important matter and I have been compelled to draw what conclusions I can from the testimony of individuals with a private interest."

I have already referred to the general nature of this evidence. It seems quite clear from the following paragraphs of the report that it did not identify with any real precision the particular areas of the Finniss River banks, which were then used for public recreational purposes nor the routes that could be taken by persons seeking to use them.

In paragraph 380, the learned Commissioner was able to say, on the basis of the material before him, that:-

"Access to waterways in the area is already a problem ... it could be exacerbated by a grant of this land to a Land Trust. Access to the river is gained by numerous tracks through the bush, most of which are impassable during the wet season. Among these are: A track from Walkers Ford just southwest of area two, which proceeds through most of area one to Sweets Lookout and adjoining sections of the Finniss River; tracks from the Wangi Road back to tracks on the Breakneck Pass section; smaller tracks which branch off these main tracks and follow the river, giving access to some of the more permanent sections of the watercourse in areas one and two."

Other tracks are mentioned and the comment is made that:-

"Many of these tracks are overgrown during the wet season."

The efforts of counsel in the hearing before me, have failed to provide a clear picture of the position or extent of these tracks. In particular, counsel for the applicant made no claim on behalf of the Northern Territory Government that particular access tracks to nominated recreational areas on the river either existed at the time of the report or at the time of hearing.
The learned Commissioner said, at paragraph 384 of the Report:-

"Although no other evidence was called on behalf of the community as to the recreational use of this area, the evidence of the Four-Wheel Drive Clubs is indicative of use of parts of the claim area by the public at large. If land around the Finniss River becomes Aboriginal Land, people using the country for recreation stand to suffer a very real detriment. That detriment may be alleviated by reserving from any grant some land as recreational reserves or as esplanades along parts of the waterways, which are regularly used. Counsel for the Four Wheel Drive Association ... conceded that the use of the area fluctuates and that there is no guarantee that a camping site used one year might be used the following year. However, he suggested that two areas ... namely the Finniss River crossing and Walkers Ford should be considered for reservation. The Finniss River crossing site has an area of twenty hectares adjacent to the Wangi Road; it is used for camping, fishing, swimming, shooting of water fowl and passive recreation. The Walkers Ford site appears to be outside the claim area."

The report continues (paragraph 385):-

"Counsel was unable to identify with any precision other sites which might be excised. He did suggest excision of a corridor of 1 mile on each side of the Finniss River watercourse and, in regard to the road which runs to the south of the Finniss River from Walkers Ford to Sweets Lookout, an excision of that land north of the road to the Finniss River. While such excisions in totality might be an extreme solution, reservations alongside watercourses with adequate access to them is reasonable. I adhere to the opinion expressed in the Borroloola Report para. 158 that the Control of Waters Act, 1939 would continue to apply to watercourses within an area of land granted to a Land Trust, and so recreational use of the Finniss River itself and of watercourses in the claim area would not be restricted by a grant of land to a Land Trust.

The learned Commissioner concluded this part of the report:-

"By again lamenting the absence of a comprehensive submission and some proposals on a matter of such general importance."

I think it reasonable to observe that there has been no suggestion in the hearing before me, that there is, even now, any comprehensive submission and proposals in relation to these matters.
It is, however, clear that once the report was delivered, steps were taken on behalf of the Northern Territory Government to put before the relevant Minister suggestions on the question of detriment, should a grant be made to a Land Trust, in favour of the Aboriginal people found to be the traditional owners of the land in question. On the 13th August, 1981, in response to a request from the Minister to make comments on the question of detriment, the Chief Minister of the Northern Territory Government submitted to the Minister, that:-

"In the administration of the Act, the granting of land should not unfairly disadvantage the population at large or deny its legitimate interests."

Concern was expressed:-

"If grants of land within the claim were made before all possible avenues to avoid detrimental effects on the population at large are fully explored."

It was then said that it would not:- "Be appropriate for the Northern Territory to present you with a further detailed submission. Most of our case is set out in the evidence before the Aboriginal Land Commissioner."

The proposal was then made that there should be an identification of the areas, which were not in dispute and that those should be dealt with, and that attention could then be focused on those other areas where further review was felt necessary to establish some pre-condition of declaration as Aboriginal land. It was suggested that a working party be set up with representation from a number of Departments mentioned to:-

"Identify all areas of detriment claimed and reported on by the Commissioner; quantify the degree of complexity associated with each; and, isolate those which may be resolved with some facility and expediency."

It was also indicated that the Northern Territory Government envisaged that consultation with the Northern Land Council, the claimants, and representatives of the Commonwealth department, would be an integral part of the process.
The suggestion of a working party was accepted by the Minister for Aboriginal Affairs. In a letter advising the Chief Minister of this decision, it was also made known that a legal challenge relating to grazing licences and the question of detriment was to be made by Meneling Station Pty. Limited. The letter went on to say that:-

"The challenge now to be made will affect the major portion of the claimed area and as such it would appear that I will not be in a position to act upon the recommendations of the Commissioner until the challenges have been resolved."

Discussion and correspondence ensued as appears from documents in Exhibit 1A. These discussions would seem to have taken place between representatives of the Northern Territory administration with responsibility to consider the question of detriment involved in the recommendations for grant and officers of the Department of Aboriginal Affairs located in Darwin. I gain the impression that efforts were being made to set an agenda for working party discussions and arrive at, in advance, salient points for discussion. For instance, a departmental minute from the Darwin office of the Department of Aboriginal Affairs (document 9, Exhibit 1A) refers to the Northern Territory officers having accepted that the present legislation did not permit conditional grants. It goes on to say:-

"Obviously, they favour excisions in many cases but accept that some lesser protection may have to be adopted."

On the 26th July, 1982 the Chief Minister of the Northern Territory Government wrote to the new Minister for Aboriginal Affairs in Canberra (document 11, Exhibit 1A). He stated that:-

"I would be most concerned if grants of land within the claim areas were made before all possible avenues to avoid detrimental effects on the Northern Territory Government, and on the population at large, are fully explored."

A paper relating to matters of detriment was forwarded with this letter. A copy of the paper was also forwarded on the same day, to the Chairman of the Northern Land Council. It is a lengthy document. It is headed "Detriment to the Northern Territory - Finniss River Land Claim".
The paper indicates that its purpose is to outline:-

"The extent of the detriment which would fall upon the Territory, Government and the community from the granting of the areas recommended and the Northern Territory position on how the detriment in each case should be resolved."

One heading of detriment is "Community Recreation". That portion of the paper, so far as is relevant to these proceedings, reads as follows:-

"Perspective

Significant parts of the Finniss River claim area form part of a large recreational use area within 100 km radius of Darwin. The latter includes other river systems such as the Daly, Douglas, Reynold, Adelaide, Howard, Mary, McKinlay and Darwin Rivers. In contrast to the more wide-spread harsh conditions in the Top End environment, these lush riverine environments are extensively utilized for various recreational pursuits by the expanding urban population of Darwin and other smaller towns and communities.

Localities within the claim area which have become established as recreational sites include the following:-

(a) Finniss River, Sweet's Look-out This is a popular and well used area for recreation. Access is mainly from Walkers Ford, south of the river and outside the area of the land claim, by a well defined track. Generally recreation use is concentrated along the water course, however, the whole area is remarkably scenic. Main recreation uses include fishing, bush walking, sight seeing and wildlife observation.

(b) The Finniss River Crossing on the Wangi Road, a very popular camping and picnicking spot. . . .

Description of Detriment

Whilst precise details of usage are not known, there is persistent and increasing pressure for recreational usage on these wetland/wilderness areas within easy access from Darwin. Present demand is expected to increase with expanding population and restriction of access to suitable areas places increasing pressures on the limited number of alternative areas for recreation use. This results in detriment to current and future urban residents as opportunities for the community to pursue their sporting and recreational interests become more limited. Intensive usage also leads to degradation of the more popular sites.

Resolution of Detriment

Much of the potential conflict between the land claim and recreational use can be resolved. This can be achieved by excising corridors along the Finniss River as suggested by the Aboriginal Land Commissioner, and by providing public access and recreation areas along the river banks and major camping areas.

Because N.T. legislation may not be effective to do what the Commissioner suggests, the Northern Territory Government seeks the excision of those areas of land indicated on the map at appendix 2 for reservation for the purpose of public recreation."

I have not been able to locate amongst the material placed before me, the map referred to. However, I assume that such a map was forwarded with these submissions on detriment and that it gave a reasonably precise indication of the areas of land which, it was suggested should be excised from the grant. It has, however, been nowhere suggested in argument before me that anything in the nature of precise surveys of the land sought to be excised, has taken place.
Receipt of this material was acknowledged by a letter from the Minister on the 12th of August, 1982 in which it was indicated that departmental officers, both in Darwin and in Canberra, were studying the submissions on detriment. The letter says in part:-

"The Minister's discretion to act cannot be fettered by the results of any discussions between departmental officers and others. Nevertheless, I am willing for the proposed discussions to proceed and for representatives of both Governments and the Northern Land Council to be involved."

The letter went on to say that immediate discussions could not take place because of proceedings currently before the High Court of Australia.
The Acting Chief Minister replied to this letter by letter of the 24th August, 1982 (document 13, Exhibit 1A). The letter reads in part:-

"Even though the High Court action may preclude you from taking a decision on the Finniss River claim, there are very substantial issues at stake associated with the detriment issue. I seek your agreement that where detriment is established on outstanding land claims, you will agree not to grant the land until the principles relating to detriment are resolved and until my Government has had the opportunity to further put its case to you."

The reply to this letter reads in part:-

"In his letter of 24 August, Mr. Perron sought my agreement that where detriment is established on outstanding land claims, I would not grant the land until the principles related to detriment are resolved and until the Northern Territory Government has had the opportunity to further put its case to me. I do not favour that as a general approach to the resolution of contentious land claims. It suggests, in effect, a second and private hearing at which a party who has had a chance to put its case publicly to the Commissioner, and has seen his treatment of that case, can have another opportunity to press its arguments."

Later, the Minister says:-

". . . if submissions received by me after a hearing are sufficient to incline me towards rejection of the Commissioner's recommendations, I will feel obliged to give affected parties an opportunity to express their views before I reach a final decision. It is with these principles in mind that I agreed to discussions at a suitable time concerning the particular features of the Finniss River claim on the terms set out in previous correspondence."

The High Court's judgment in Meneling, having been given in December, 1982 the Chief Minister wrote to the Minister for Aboriginal Affairs on the 26th April, 1983 indicating that he would be happy to proceed, in relation to discussions on detriment:-

"Along the same lines with regard to the Finniss River claim as had been agreed with the previous Government. The next step as I understand it would be for officials of our respective Governments to jointly advise on the means to resolve the questions of detriment, which would be inherent in the decisions you must take in the granting of the claim."

It would appear that, on the same day, the new Minister for Aboriginal Affairs wrote to the Chief Minister supporting the earlier concept of the establishment of a working party and indicating that the functions of the working party would be confined to the detriment issues, commented upon by the Aboriginal Land Commissioner, in his 1981 Report. The Minister envisaged that the working party would commence its work early in April and report to both himself and the Chief Minister. It was further indicated that the Minister expected a report on the identification of areas, for which the Commissioner found no detriment and upon which an immediate decision could be made by the end of April and a final report in respect of areas where problems of detriment arose by the end of July, 1983.
Accordingly, a working party was set up and held a preliminary meeting on the 14th June, 1983. The Minutes of this Meeting are document 19 in Exhibit 1A. The meeting took place in Canberra. It was clearly of a preliminary kind. The representative of the Northern Territory Government stated that the Government saw the Northern Land Council "being involved as soon as possible, possibly the next meeting". The leading representative from the Department of Aboriginal Affairs, indicated that the Minister saw the working party exercise as:-

"Not required by the Lands Rights Act; a concession to the Northern Territory, (as this claim goes to Government rather than private concerns); not being used as a vehicle to canvass other issues, or to extend the time in which a decision is to be made."

There appears to have been general discussion about the concept of detriment and the examples of it. The meeting terminated on the basis that the Northern Territory Government would supply the Commonwealth with a map relating to areas of claimed detriment, and that the Commonwealth would thereafter consider the matter and consult with the Northern Lands Council and identify land about which the Minister could make a decision immediately. The next working party was to meet in Darwin.

The minutes of this meeting were forwarded to the Northern Territory Government and produced a reply dated 24th June, 1983 (document 20 Exhibit 1A). Some correction was sought to matters of detail in the minutes. Reference is made to the "Territory map". It was indicated that it was intended that the map be examined in conjunction with the previous "Territory paper" as it was "Not practical to map all aspects of detriment." An example of this was "Loss of recreation areas in Areas 1 and 2." There was forwarded with this letter a supplementary paper on detriment.
The supplementary paper (Exhibit 1A p 76) refers to "Community Recreation" as follows:-

"Further investigation has enabled the definition of access roads and the main areas of recreational interest which are associated with the Finniss River waterway.

Claim Area One - adequate road access to the Finniss exists via the Finniss River Station road and via a bush track travelling in a generally north westerly direction from the Break-Neck Pass Road which branches off the Wangi Road. These roads lie to the north of and outside the claim area. The whole of the waterway is used for fishing and other recreational pursuits. In practical terms an assurance of public access to a narrow strip of land along the Southern bank of the river would provide for recreational needs. This approach would be consistent with the approach to public reserves adopted in the Martin Report on land tenure in the Northern Territory.

Excision of a strip of land on the Southern bank of the claim area would not deny Aboriginal usage of the excised portion but allow public access without trespass.

Claim Area Two - Walkers Ford remains a popular recreation site. Although the site lies outside the claim area, access is via a well defined track from Breakneck Pass which traverses part of the claim area. There is no satisfactory alternative access. Continued right of access is sought via a reservation along the line of the present track.

The Wangi Road Crossing is the centre of a major recreational and camping area. Excision of a 100 metre wide corridor along the northbank for 2 km upstream and 2 km downstream from the crossing would maintain the availability of the camping areas."

Thereafter a working party meeting was held on the 3rd August, 1983 at the Darwin office of the Department of Aboriginal Affairs. On this occasion, the Northern Land Council was represented as well as the Department in the Northern Territory Government. Discussion in relation to Areas 1 and 2 was recorded (so far as relevant) as follows:-

"Area 1

Two areas of detriment were readily identified, being:-

- recreational use of the southern bank of the Finniss River . . .

Area 2

The NT Government stated that any grant should allow unimpeded access to the Finniss River waterways and to the well-established recreational areas on the northern bank of the river. It was suggested that a 100 metre strip along the northern bank of the river, 2 kilometres on either side of the Wangi Road Crossing, would satisfy recreational requirements. This strip of land should be measured from the northern bank rather than the river bed. The Wangi Road should not be included in any grant. Access to blocks 2146, 2210 and 2211 should be secured, but may be available without affecting the area recommended for grant.

It appeared that the remaining land, as recommended, could be granted without significant detriment."

It was decided that the next meeting be held on the 22nd August, 1983. That meeting was duly held. There appears to have been some "extensive debate" on the contents and adequacy of the draft minutes of the previous meeting. Suggestion for amendments were made, with a final decision that a further set of draft minutes be circulated. The time of the meeting appears to have been largely taken up in general discussion, with topics such as "conditional grants" and the role to be played by the Northern Land Council, assuming significance.
It appears that, subsequent to this meeting, attempts were made to produce an interim working party report for the Minister. Exhibit 1A contains correspondence relating to this, which it is unnecessary to set out.
It appears that a further working party meeting was held on the 6th October, 1983. The minutes of this meeting are document 32 page 104 of Exhibit 1A. There was discussion as to the draft interim report. It appears that little unanimity was reached on a number of aspects of it. It is noted that the Northern Territory Government:-

"Suggested that with a change of Government in Canberra, and the subsequent policy shifts, there has been a 'hardening' of attitudes within both Northern Territory and Australian Government, which questions the effectiveness of the Working Party."

In the upshot, agreement was reached:-

"That for the time being, no further meetings would be called although informal dialogue would continue on questions of fact."

It appears that this dialogue failed to produce agreement even as to the appropriate content of the Minutes of the Meeting of the 6th October. So far as I can see, from the material placed before me, no further meeting of the working party ever eventuated. Discussions between the representatives of the Northern Territory Government and the Department of Aboriginal Affairs, at the meetings, had produced no significant results. The Northern Land Council, although represented, had been unable to contribute to the discussions through lack of formal instructions from the traditional owners of the areas involved.
It would appear, therefore, that at the end of a period approximately two and a half years from the Aboriginal Land Commissioner's Report, no worthwhile progress had been made towards the granting to the identified traditional owners of the recommended land in Areas 1 and 2.
It seems clear, also, that after the termination of the working party meetings, no direct discussion took place between representatives of the Northern Territory Government and the Department of Aboriginal Affairs as to detriment to recreational activities in Areas 1 and 2.
The evidence does not make clear to me what, if anything, the Department itself did in relation to these areas in late 1983 and early 1984. In April, 1984, the Department received a letter addressed to the then Minister Mr. Holding from a Mr. Devereaux of Batchelor, a Northern Territory town close to Area 2, describing himself as "the elected spokesman for the Murranunggu People, Wagait Reserve." It is clear that Mr. Devereaux purported to represent those aboriginals found to be traditional owners and for the benefit of whom the Land Commissioner had recommended the land grant in Areas 1 and 2. Understandably, Mr. Devereaux made some complaint about delay in implementation of the Commissioner's recommendation and sought information as to what progress was being made. He said:-

"We can find nothing out here in Darwin. We are being sent in circles and anything said is very vague."

He said that the long delay was causing detriment to his people as:-

"New fences going up, on our land, blocking our access and also affecting our spiritual affiliation with that land."

Although this letter was not referred to the Northern Territory Government, the applicant makes no complaint about this omission. Apart from the reference to fencing, the letter appears to contain no factual material additional to what was before the Commissioner in his pre-report hearings. The Minister replied to this letter on the 18th May, 1984, approximately three years after receipt of the Commissioner's Report, expressing sorrow for the delay but advising Mr. Devereaux that the claim "involved particularly complex issues of detriment". The letter ends by the Minister indicating that he hoped:-

"To be in a position within the next few months to make a decision on at least some parts of the Finniss River land claim areas."

In January, 1985, a letter was received by the Department from Ms Daiyi writing on behalf of the Mak-Mak Murranunggu of Wagait. The letter asks for information as to progress:-

"On the Finniss River land claim areas 1 and 2. These areas recommended to the Murranunggu People by Justice Toohey."

The letter raises a number of complaints originating in the uncertainty and delay attending the finalisation of the claims. It makes the factual assertion that:-

"Area 1 has been fenced off and access denied."

It speaks also of the increasing hardship occasioned to the group by their inability to have control of the land. The Minister replied to this letter on the 4th February, 1985, regretting the delay but speaking once again of the complex questions of detriment involved.

It appears that in this period the Department was holding some discussions with the Bureau of the Northern Land Council. A memo from Central Office to the Regional Director, Northern of the 6th February, 1985 (document 41 Exhibit 1A), refers to a discussion on the 31st January, 1985 at which one of the principle issues discussed was "Public recreational areas and access to those areas." It would appear that, at that point of time, consideration was being given to joint administration of these areas by the Northern Land Council and the Conservation Commission of the Government of the Northern Territory. A memo of the 11th April, 1985 from the Regional Director, (Northern) to the Director in Canberra of the Territories Heritage Administration Branch, indicates that some discussions had taken place with the Commission but that there was a current statutory impediment to the Commission taking part in joint administration. This document also indicates a reluctance formally to approach the Northern Territory Government Department of Law in relation to any current development plans affecting the Finniss River Areas,

"As the matter could again become embroiled in a further round of meetings and negotiations without achieving positive results."

It is quite clear, in my view, that this attitude of not becoming involved in further discussions with the Northern Territory Government, had considerable influence on the course of events in 1985 and 1986. The Department clearly concentrated such effort as was made on resolving with the Northern Land Council the questions of detriment which had been raised in the Commissioner's Report in May, 1981. It is in relation to matters occurring in this period that the applicant makes complaint as to denial of natural justice.
It is clear that, during this period, the Department came under considerable pressure from the Northern Land Council to finalise the Finniss River land claims. By letter of the 13th June, 1985 to the Minister, the Director of the Bureau of the Northern Land Council indicated that it was seeking information:-

"That would enable the Land Council to consult with traditional owners with a view to considering and, where appropriate, accommodating matters of substantial detriment which are the subject of comment by the Aboriginal Land Commissioner."

This letter goes on to indicate that:-

"Now that over four years have passed since the Commissioner's Report"

the Land Council would have to give serious consideration to applying for a Writ of Mandamus:-

"Unless some decisive action is taken soon in relation to the Commissioner's recommendations."

The Minister replied on the 25th July, 1985 referring again to the matters of detriment being complex and indicating that the Department was to produce:-

"A comprehensive schedule identifying detriment and action required for resolution."

The letter indicated that contact would be made shortly:-

"To begin discussions on resolution of those outstanding matters of detriment identified in the schedule."

The schedule, or portion of it, appears to be part of document 49, of Exhibit 1A, at page 146. It deals with Area 1 as follows:-

"Recreation . . .

Detriment: Access to southern bank of Finniss River for recreation purposes. Status: Access to the area appears to be restricted to 4WD vehicles and then only during the dry season. Access to the northern bank appears to be unrestricted but more difficult. Action: Confirmation required."

It is not possible to determine where this information as to restriction of access originated. It may have come from an interpretation of the Commissioner's 1981 Report or from discussions with officers of the Northern Land Council. It is part of the applicant's complaint that these assertions were not referred to the Northern Territory Government for comment.
The Finniss River Crossing was dealt with as follows (at p 148):-

"Detriment: Finniss River Crossing. Status: Popular camping and recreation area. The area could be jointly managed by the Conservation Commission and the traditional owners. Action: Await amendments to the Conservation Commission Act or make excision. NLC to develop arrangements in conjunction with the Conservation Commission."

It seems strange that the suggestion of joint management be put forward as a realistic proposal having regard to information previously given, which has already been referred to. The making of "an excision" presumably relates to proposals made some three years before by the Northern Territory Government in its detriment papers. Although submissions were made to me on behalf of the applicant that discussions with the Northern Territories Conservation Commission relating to this matter and also to a spread of a noxious weed in the Finniss River waters (a matter to be considered later) would not necessarily have been viewed by the Government as relating to the recreational detriment claim, it is difficult to envisage that the Government would have been totally ignorant of this suggestion for joint management. No evidence has been placed before me that it was, in fact, so ignorant. In any event, it is clear that these proposals were never placed before it directly for comment.
It appears that this document was discussed on the 28th August, 1985 at a meeting between officers of the Department and the Northern Land Council in Darwin. The result of that discussion was the preparation by the Northern Land Council of a document dated the 4th September, 1985, which was headed "Finniss River Land Claim Detriment Issues Status Report No. 1", (document 52 Exhibit 1A).
It repeats the previous schedule and adds:-

"NLC proposal for action; investigate by field trip and consult with claimants. Then advise DIA:

(a) that we submit there is no detriment, or

(b) that the claimants agree to provide appropriate access."

In respect of the Finniss River Crossing, it repeats the material in the previous schedule and adds:-

"NLC proposal for action; identify on map and on the ground and if necessary consult with claimants to ascertain whether they are prepared to waive permit requirements for bona fide campers under s. 11 of the Aboriginal Land Act."

In respect of each item, the relevant claimant group is identified as the Murranunggu.
It seems that this is the first occasion when mention is made either of the absence of detriment to recreational users as a result of practical inability to gain access to the subject areas or the granting of permission for access by the traditional owners.
Although it was, obviously, not being included in the discussions taking place between the Department and the Northern Land Council, the Northern Territory Government saw fit to write to the Minister on the 9th October, 1985 about the Finniss River Land Claims. The letter makes the point that:-

"In many instances the evidence that was presented to the Aboriginal Land Commissioner is now out of date and incomplete, or new evidence is available."

The letter continues as follows:-

"For example, since the Commissioner's Report in the Finniss River Land Claim, the population of Batchelor has considerably increased, further mining interests have had to be granted at the Woodcutters mine for safety reasons, patterns of land usage have changed and the detriment which would flow from any grant will have increased, or in some instances may have decreased. You are already aware of some of the changes as a result of communications from the Territory Government. My Government has had no confirmation from you, that you will take any such changes into account in any decisions you may make. There are of course many other Land Claim Reports which are in a similar position to the Finniss River Land Claim, and I enclose a list of the Claim Reports which are still outstanding.

Accordingly, in cases where you are advised of or become aware of new relevant evidence (including matters of correction or elucidation) after the date of the Report, I seek your written confirmation that you consider yourself legally bound in exercising your powers under section 11 of the Aboriginal Land Rights (Northern Territory) Act, 1976 to receive and consider such new evidence which post-dates the Aboriginal Land Commissioner's Report and which relates to land the subject of the Report, and that you will in fact give proper consideration to such new evidence. I also seek your confirmation that where it is appropriate, you shall refer the matter back to the Aboriginal Land Commissioner under section 50 (1) (d) for further Report.

The Territory takes the view that you are bound to consider all relevant new evidence, and that where in the circumstances it is appropriate to do so, you shall refer the matter back to the Commission for further report.

I would be obliged if you would let me have your reply within 21 days of receipt of this letter."

The Minister replied on the 13th November, 1985 by letter to the Chief Minister of the Northern Territory. He said:-

"I am not willing to give you a commitment in writing that I consider myself legally bound to receive and consider new relevant evidence (including matters of correction and elucidation) after the date of a Commissioner's report. The Full Federal Court, in Peko-Wallsend Ltd. v. Minister for Aboriginal Affairs, took the view that in certain circumstances the Minister is obliged to take into account material additional to the Commissioner's Report. However, as I have been granted special leave to appeal to the High Court against that decision, I would not be willing to commit myself to an approach which the High Court may decide is not the approach contemplated by the Act."

The Minister also indicated that he was not prepared to refer matters back to the Commissioner unless the Court clearly stated that he was obliged or empowered to do so.

On the 21st November, 1985 the Chief Minister once again wrote to the Minister (document 57 Exhibit 1A). The letter (inter alia) refers to a substantial increase in the population of the town of Batchelor since the hearing of the land claim. It refers to a necessary increase in the demand for essential services. It again seeks written confirmation that the Minister consider himself legally bound to receive and consider new evidence post-dating the land claim report, and that proper consideration will be given to such evidence.
The Minister replied on the 27th November, 1985, adhering to his previously stated position.
On the 19th December, 1985 Ms Daiyi of Batchelor wrote to the Minister a letter containing information on the issue of detriment. The applicant complains that the material in this letter was not referred to the Northern Territory Government by the Minister for comment.
The letter reads in part as follows:-

"Dear Sir,

Regarding Mak-Mak Murranunggu claim to areas 1 and that small part of area 2 in the Finniss River Land Claim.

We wish to bring to your attention these factors concerning detriment to the parties that previously objected.

Areas 1 lie inside the bend of the Finniss River at a place which is not accessible by any road anymore. The freehold leases around the areas which were all being taken up around the time of the Finniss River Land Claim have all been fenced and the old roads are washed out and unused as they are barred in a number of areas by fences now. The only access lies in coming in through Wagait Reserve and up to the Southern-Western corner. There is no road here, you have to go cross country through swamp and plain, making your own road, also you have to know the hard ground from the soft.

Detriment to recreation clubs and people if there was any in 1983 has diminished in this particular area to virtually nil by the development of these freehold blocks with fences. Evidence of this is the fact the old access track is fenced in a number of places, creek crossings and washed completely away and the tracks have eroded into small creeks and big washouts. There is also the fact that the part of the river on area 1 side is completely choked up with Mimosa-Pigra, a noxious introduced weed which is spreading at an alarming rate through the Finniss River system and so destroying clear fishing holes and access to them. If this weed is not contained in the near future there will be no area 1 left accessible to anyone. It is a prickly, thick growing and quite impenetrable to man or vehicle."

Later in the letter, Ms Daiyi says:-

"Access to this particular piece of Finniss River and to a few miles either side of areas 1 is currently via the northern (other side) of the river. This is where a well used track comes off Finniss River Stn road and tourists and fishermen do go fishing and boating in the big river holes approx. 5 km downstream from area 1 where the river is easily accessible and is still open to use because it is wide and deep. This situation of access and the desire to use area 1 by recreationists and graziers will deteriorate to non-existent in the coming years as the threat of this weed, mimosapigra is real and every year is doubling in intensity."

In conclusion, Ms Daiyi makes the point that because of these matters, detriment:-

"Has diminished to other people concerned since the original lodgement of the claim."

It would appear that confirmation of this information was sought by Canberra from the Northern Land Council. By telex dated the 21st January, 1986 (document 61 Exhibit 1A) the Northern Land Council reported that Ms Daiyi's information was correct.
On the 6th February, 1986 a letter was sent to Ms Daiyi on behalf of the Minister for Aboriginal Affairs informing her that her observations had been noted and would be taken into account at the appropriate stage of the decision-making process. It was further indicated that the mimosapigra problem was to be drawn to the attention of the Conservation Commission of the Northern Territory.
On the 14th February, 1986 an internal memorandum in the Department, records the fact that the Bureau of the Northern Land Council had advised that the current status of detriment issues within areas 1 and 2 was (inter alia) as follows:-

"1. Access to Southern Bank of Finniss River for Recreation

Freehold areas have been fenced making the southern bank accessible only from the Wagait Reserve. The people will use the existing permit system for anyone wanting to enter the area for recreation. The BNLC has the names of contracts who can give approval for the issue of the permits. The area is inaccessible except by 4WD. No detriment.

2. Finniss River Crossing

The Murranunggu People are prepared to waive permit requirements for a recreation area, and are willing to negotiate joint management of the area, with the Conservation Commission. The actual area cannot be defined at the moment due to Wet Season conditions."

On the 21st February, 1986 a letter was sent to the Bureau of the Northern Land Council to the Regional Director of the Department of Aboriginal Affairs in Darwin (document 66 Exhibit 1A). It sought confirmation that the courses of action suggested in the letter were acceptable to the Department. In relation to access to the southern bank of the Finniss River the letter reads:-

"The only current land entry to Area 1 is via the Schedule 1 Aboriginal land that is commonly known as the Wagait Reserve. This is so because the non-Aboriginal land neighbouring Area 1 has been fenced thereby excluding transit through that land. The fences have not been constructed by the claimants but have presumably been constructed by persons with interest in the neighbouring land and for their own requirements. The only access is by bush track or otherwise by driving across country in a four wheel drive across the Wagait Reserve. As that reserve is already Aboriginal land, a permit is required by most persons wishing to enter onto it or travel across it. It is suggested that due to the inability to drive to Area 1 apart from travelling over land for which a permit is required, no detriment could be suffered by any known person in relation to access to Area 1. Already a permit is required - no further burden will flow from a grant of Area 1."

It is worth noting, at this point, that no attention in this statement appears to be given to the access to this area of the Finniss River by way of tracks leading to the northern bank. As I understand the detriment claim that was previously formulated in the 1981 to 1983 period, it related not so much to difficulties of access to the southern bank of the river via the existing aboriginal reserve, but to the need to have an area of land on the southern bank of the river which was not Aboriginal land and upon which recreational users could go without trespassing. Such users would, no doubt, come to this piece of land by boat from the north bank. This confusion as to the real nature of the issue seems extraordinary, having regard to the apparently enormous amount of time that had been spent in consideration of the matter and the equally enormous amount of paper work that had been generated.
The Finniss River Crossing is dealt with as follows:-

"In the Land Commissioner's report at paragraph 472(42) it was suggested that land close to the Finniss River is used for recreational purposes including fishing and camping. He continues that there was no comprehensive submission identifying land use for recreation and no proposals as to how these might be maintained.

This being the case, the claimants submit that there is no ascertainable detriment. They believe that the normal permit procedures for persons wishing to use the land for recreational purposes would be more than adequate. It is submitted that the numbers of persons wanting to use the area at most times is not substantial and that our Permits Officer could maintain an efficient service for applicants. I seek your confirmation that no further action is required."

It is worth recording that the Northern Territory Government's original detriment claim was based upon the contention that a very substantial recreational area existed along the banks of the river at this point and that a reasonably large area should be excised from the grant so that it could be retained permanently for recreational purposes without any problems arising as to trespass on Aboriginal lands. It does not appear that in the 1981 to 1983 discussions, any suggestion was put forward as to the use of a permit system.
The department replied to this letter on the 2nd April, 1986. It confirmed that no further action was required with respect to detriment arising from access to the southern bank of the Finniss River and that in respect of the Finniss River Crossing:-

"As discussed in Darwin 14.3.86 that either the entry permit requirements will be waived or the area will be declared an open area."

It appears that this latter suggestion was an entirely novel one and related to a possible course under relevant Northern Territory Legislation.

On the 23rd June, 1986 the Principal Legal Advisor of the Bureau of the Northern Land Council wrote to the Secretary of the Department of Aboriginal Affairs in Canberra advising (inter alia) that he was instructed that entry permit requirements were to be waived over the bed and banks for an area within two hundred metres in each direction on both sides of the present bridge over the Finniss River. He was further instructed that that was the present camping area used in that location. A notice to that effect would be inserted in the Northern Territory News.
It appears that the Department decided that the permit proposal was a satisfactory one.
Accordingly, on the 1st May, 1987 the Department made a submission to the Minister that he accept the Commissioner's recommendation that there be a grant of the land contained in area 1 and certain of the land in area 2 to a single Aboriginal Land Trust. The Minister acceded to this submission. The decision which the Minister in fact made was one to grant the subject areas to a single Aboriginal Land Trust. It is conceded that this was a mistake in wording in so far as the Commissioner's function was to recommend the making of a grant to the Governor-General. No point was taken as to this matter and I have been asked to decide the issues between the parties on the basis that that matter will be corrected.

As already indicated more than once, the applicant seeks an order setting aside the Minister's decision and a remitting of the matter to him for reconsideration according to law. In order that the matter may be properly considered, I have felt it necessary, to set out at some length, the matters occurring over such a lengthy period, which have culminated in the decision appealed from. As I have indicated, from time to time, in setting out this material, the applicant's complaints centre about the failure of the Department, after the 1983 cessation of consultation, to refer to the Northern Territory Government for comment, and reply matters of information or submission received by it from the Northern Land Council and from the traditional owners of the areas in question.
In relation to the area described as the southern bank of the Finniss River, the applicant complains that, in effect, there was a ministerial decision as to absence of any detriment to it without its being heard on the matters upon which that decision was based. Those matters related to access to the southern bank and were comprised in the submissions of the Northern Land Council set out above to the effect that access at all times had only been via Aboriginal land with the attendant requirement of a permit and also the material supplied by Ms Daiyi to the effect that the access tracks had, with time, for practical purposes, disappeared or been obstructed by permanent fencing and that the de facto recreation area itself had seriously deteriorated because of the inroads of the noxious plant mimosa-pigra.
I think that a fair reading of the material before me points inevitably to the conclusion that the Minister did make his decision in relation to this question of detriment on the basis that if the grant of area 1 were made, recreational users would suffer no significant detriment because, from the point of view of access, they would be in no worse position than if the grant were not made.
Whilst maintaining, as a matter of law, that it was under no obligation to indicate what submissions it would have made had the opportunity been afforded to it, the Northern Territory Government indicated, through its counsel, that it would have sought to challenge these matters of access. It remains the fact, however, that I have before me no material challenging the correctness of, e.g. Ms Daiyi's information as to the deterioration and at least partial disappearance of areas of access to and on the south bank. Nor do I have anything to indicate the incorrectness of the broad proposition that access by land, in any event, could be obtained only by passing through the existing schedule 1 Aboriginal Wagait Reserve.
As already indicated, the initial contentions put on behalf of the Northern Territory Government, were to the effect that a portion of the southern bank should be excised from the grant to provide a permanent area upon which recreational users could go without being involved in the commission of any trespass on Aboriginal land. I do not read those earlier submissions as being, in any way, involved in questions of land access to the southern bank. If I be right in this, then it would appear that at least likely, the ultimate Ministerial decision was made without reference to the earlier submissions of the Northern Territory Government as to excision. Once can certainly gain this impression from the reading of the material placed before the Court. If this is so, then it might be said that the ultimate decision on detriment proceeded on an irrelevant consideration or at least failed to take into account a relevant consideration. However, the applicant, as I understand his case, does not make this submission and, in those circumstances, I think the proper course for me to follow is to assume that the question of excision was in fact considered in relation to recreational use detriment but was rejected in favour of the issuing of permits to go upon the riverbank which would be comprised in the grant of the land.
In relation to the Finniss River Crossing, there does not appear to be any problem of access to the boundaries of the existing recreation area. As seen from the material, which I have set out above, the Northern Territory Government's main contention had been that an area should be excised from the grant, which would provide a permanent defined recreation area along the banks of the river near the crossing. The ultimate ministerial decision was to the effect that detriment to recreational users could be overcome simply by the granting of permits to go upon this area. There is no reference in any of the material relating to the years 1984, 1985 or 1986 to considerations as to whether or not an excision should be made. I feel, however, that I must assume that this submission of the Northern Territory Government was, in fact, before the Minister although not specifically referred to or rejected. It was, in any event, the subject of some comment in the Land Commissioner's Report. It appears, however, that the ultimate decision was made between the adoption of a permit system or the declaration of the area as an "Open area". The choice, in effect, did not involve the Minister in deciding to implement either system. This would be beyond his power. He has merely decided that the availability of a system of permits to be granted on behalf of the traditional owners is sufficient to dispose of the question of detriment. As I see it, it would not be impossible in the future for an "Open area" solution to be adopted under the relevant Northern Territory Legislation. In the circumstances, although I was taken to the legislation, I do not feel that it is necessary to make further reference to it here. The applicant's complaint, in this regard, is that it was given no opportunity, excision having apparently been rejected as a solution to the detriment issue, to be heard on whether the permit system would obviate detriment. It would have wished to submit that it would not and that the detriment issue could be resolved only by adoption of the second choice, the "Open area" solution.
In support of its submission that it was denied natural justice by the Minister in his failure to afford an opportunity for it to be heard in relation to these matters, the Northern Territory Government relies upon passages in the High Court decision in Minister for Aboriginal Affairs & Anor. v. Peko-Wallsend Ltd. & Ors. (1986) 162 CLR 24.
That case involved a consideration of the Minister's powers and duties under s. 11 of the Aboriginal Land Rights (Northern Territory) Act and is authority for the proposition that he is bound to take into account the Commissioner's comments on detriment under s. 50(3)(b) in exercising his power under s. 11(1)(b) to decide whether or not he is satisfied that a grant should be made. It is further authority for the proposition that he is bound to have regard to any submissions made to him which correct, update or elucidate the Commissioner's comments on detriment.
In that case, of course, a highly significant piece of information which, in fact, corrected in a most important way evidence which had been given before the Commissioner, was forwarded to the Department after the Commissioner's report had been made. The Minister, however, proceeded to his decision in favour of grant without having considered this information, with the result that the decision was declared void. In the present case, the Minister had, it is submitted, received submissions which corrected, updated or elucidated the Commissioner's comments on detriment. They were submissions which post-dated the further submissions on detriment made by the Northern Territory Government. Was he obliged in law to take the further step of referring these later submissions to the Northern Territory Government for its further comment?
The question did not arise directly in Peko-Wallsend. However, the judgments refer to the position that would have obtained if the Minister had taken into account the additional information supplied to the Department, by Peko-Wallsend correcting the position of the uranium deposit in the land, the subject of the claim under the Act.
Gibbs, C.J., at p 31, said:-

"It would seem, on principle, that if the Minister had been minded to give consideration to the facts stated in the correspondence from the respondents, he should first have given the Northern Land Council a fair opportunity to place before him its comments on that correspondence. That question was not fully discussed in argument before us, and is academic because the Minister did not consider the facts stated in the correspondence."

Mason, J. (as he then was) at p 46 said, in relation to the application of the rules of natural justice to the case:-

"No doubt those principles would also require a Minister, who has received additional submissions from one party, before acting on them to afford other interested parties an opportunity to answer them."

Brennan, J. (at p 57) said:-

"It is one thing to say that the Minister is bound to have regard to the Commissioner's report made in accordance with the statutory scheme and containing his comments on detriment; it is another thing to say that the Minister is bound to have regard to information relating to detriment subsequently furnished to him by a party who had appeared before the Commissioner. Where a matter submitted to an open inquiry involves a conflict between the interests of parties and the decision is apt to affect some parties advantageously and to affect others detrimentally, an ex parte communication between one party and the decision-maker offends the requirements of natural justice: it deprives the opposing party of an opportunity to be heard on a matter affecting his interests and the integrity of the administrative process is eroded by partiality on the part of the decision-maker. If the fact of the communication is at first kept secret and later becomes known, there is an inevitable appearance of bias in the decision-maker. The general rule, founded firmly on the requirements of natural justice, is that information furnished by an ex parte communication must not be taken into account without giving the parties whose interests might be affected by the information an opportunity to correct or contradict it."

His Honour further says (at page 60):-

"A decision-maker is entitled to take into consideration relevant information contained in an ex parte communication and any response by the other party; he is not entitled to take such information into consideration without giving the other party an opportunity to respond. Under the Act, the Minister can receive from one party information to correct, elucidate or add to what is in the Commissioner's report - for there is nothing in the Act to prevent his doing so - but he cannot take that information into account unless he gives the parties whose interests might be affected an opportunity for correcting or contradicting it. The Minister can give that opportunity by referring the information to the Commissioner for his advice purusant to s. 50

(1)(d) of the Act. Or he can give a more informal opportunity by seeking the other parties' response by letter."

His Honour goes on to make it plain that not all ex parte communications received by the Minister will produce this result. It is necessary that the information be credible, significant to a matter to which the Minister is bound to have regard, and not of a type which the Minister decides would, even if true, not affect his decision.
There is no dispute in the present case that these principles must be applied.
However, in relation to the south bank of the Finniss River, it is submitted on behalf of the respondents that the principles did not require that the Minister seek any response from the Northern Territory Government to the ex parte communications received from the Northern Land Council or from Ms Daiyi.
So far as the assertion that the recreational access to the south bank of the river was at all times through the established Aboriginal land of the Wagait Reserve, it is submitted that, on the basis of the maps available to the Commissioner, the Minister, and in evidence before me, it was simply self evident at all times that this was so. This is disputed on behalf of the applicant not so much on the basis, as I understand it, that the information was wrong and could be shown to be wrong, but that it was a matter that should have been inquired into further with opportunity given to the Northern Territory Government to consider the correctness of the assertion. It was put that this was especially so in the context that the factual assertion was being used to demonstrate the absence of detriment, it not previously having been asserted anywhere that no detriment would flow to recreational users of the southern bank, should a grant of Area 1 be made.
In relation to Ms Daiyi's information, it was submitted on behalf of the respondent that it was not significant and would not have affected the Minister's decision. There is no evidence before me that, in fact, it did not play any part in his decision. On the contrary, Ms Daiyi was told in the letter I mentioned above, that the information would be taken into account; and other material suggests that it was. Indeed, it is probably the only significant factual imput that occurred over the years that elapsed from the Commissioner's careful reporting on the facts to the Minister's actual decision. It also goes to the existence or otherwise of any detriment, whereas previous material had gone only to the question of how best to deal with detriment acknowledged to exist.
Again, although the complaint is made by the applicant that no opportunity was given to comment upon or counter this information, no indication is given to the Court as to whether Ms Daiyi's factual assertions would have been denied, if such an opportunity had been given.
In this regard, the applicant relies upon the cases of Kanda v. Government of Malaya, (1962) AC 322; Re J. R. L. Ex parte C. J. L., (1986) 66 ALR 239; and Kioa v. West (1985) 159 CLR 550. It is put, in reliance upon passages in these cases, that there is no onus upon a person who has been denied the opportunity to respond to an ex parte communication adverse to him to demonstrate that the decision would have been different if he had had the opportunity to deal with the allegations. The rules of natural justice are broken if the opportunity is denied and the Court can make appropriate orders in relation to the decision-maker's decision without inquiring further as to what the position would have been had the opportunity been accorded.
I think the cases do establish this proposition and I find it unnecessary further to lengthen these reasons by setting out the relevant passages.
It follows that I am of the view that the first respondent permitted a breach of the rules of natural justice in failing to accord procedural fairness, when he, through his Department, failed to refer the content of the ex parte communications from the third respondent and Ms Daiyi to the Northern Territory Government for its consideration and response, if so desired. I should add that I do not consider the referral by the Department to the Conservation Commission of the Northern Territory of Ms Daiyi's information as to the spread of mimosa-pigra as being, relevantly, a referral to the Northern Territory Government of material on the question of detriment.
This, however, is not the end of the matter. The applicant must still satisfy me that I should exercise my discretion in his favour by ordering the quashing of the Ministerial decision. Upon consideration of the whole of the material, I have come to the conclusion that this is a quite inappropriate case for the granting of the discretionary remedies sought. In my view, a number of matters clearly militate against the quashing of the decision.
In the first place, there has been, at all times, from the delivery of the Commissioner's report in May 1981, a clear indication that excision of part of the river bank land from the grant was an available option to accommodate the claims of detriment to recreational users. This option was clearly espoused by the Northern Territory Government from the outset. Its position in this regard was made and remained clear in the Departmental files. There is nothing to indicate that that option was forgotten or ignored in the decision-making process. In any event, the Northern Territory Government, as I understand its case, makes no complaint to this effect.
Secondly, although there was procedural unfairness in the failure to refer the ex parte communications to the Northern Territory Government, it is, in my view, a significant matter in relation to the exercise of discretion, that the applicant has not put before this Court any indication of what response it would have made if the material had been referred to it. It would obviously be an enormous waste of public time and money were the Minister's decision to be set aside with the only result being that the Northern Territory Government was unable to demonstrate any significant factual error in the ex parte communications. In my opinion, although such material is not required as a basis for a finding of denial of natural justice, in many cases it will most certainly be required in order to induce a Court to make discretionary remedial orders. For all the Court knows, in the present case, if the decision were set aside and an opportunity given to the Northern Territory Government to respond, it may well, on investigation of the factual material, find it to be accurate. If that were so, the Court would merely have lent its authority to a futile and wasteful exercise.
Thirdly, the Department had indicated that it would consider additional submissions on detriment, over and above those put to the Commissioner, but, in effect, was adopting the stance that it was doing so as a matter of grace rather than of legal obligation: This being so, the Northern Territory Government was, in my view, clearly put on notice by the Minister's refusal to give firm undertakings that further opportunities would be given for submissions before his final decision, that it should take its own steps to provide information updating or elucidating the material before the Commissioner. Indeed, it did take some such steps by making reference to the growth in the population of Batchelor in the letter mentioned above. There would appear to have been nothing to prevent it, in pursuance of its desire to preserve the southern bank areas for recreational use, to make an up-to-date field survey of the area in question and of access to it, with a view to putting to the Minister any updated submissions of fact that it desired to make. Having regard to the quite extraordinary length of time that had elapsed since the making of the Commissioner's report, it would seem not at all unreasonable that it should have done so, rather than rely upon the Department providing it with material for its comment supplied from other sources; especially so, as the undertaking sought had not been given.
Finally, the Court must have regard to the period of time that has elapsed since the making of the Commissioner's report. Indeed, the time required for the resolution of the "complex issues of detriment" referred to in the correspondence, approximates the time span of the Second World War. The Court cannot ignore the obvious prejudice which this delay has occasioned to the persons found by the learned Commissioner in 1981 to be the traditional owners of the land. Their letters, complaining of delay and referring to the hardship thereby caused, provide ample testimony of this. I am clearly of the view that the Court should not set aside the Ministerial decision on the basis of the established breaches of procedural fairness, and thereby impose upon these unfortunate people what may indeed be a further prolonged period of delay, unless there exists the clearest indication of severe prejudice to the Northern Territory Government. I see no such indications.

I therefore decline the order sought, so far as it relates to the southern bank of the Finniss River.
In relation to the Finniss River Crossing area I entertain some considerable doubt as to whether the ex parte communications from the Northern Land Council complained of by the applicant really amount to material updating or elucidating the Commissioner's findings, and therefore requiring the affording of an opportunity to respond. I see much force in the argument that the procedures by way of permit or declaration of the recreation grounds as an open area, were always available options to be considered alongside the Northern Territory Government's submission that the appropriate approach was one of excision of the area from the land to be granted. There is much force in the contention that there was nothing new or novel about such submissions. There were always possible approaches and could have been addressed by the Northern Territory Government in any event.
I do not need to come to a final decision about these matters. I am quite satisfied that if I were to reach a decision that there had been a breach of procedural fairness, I should be constrained, for the reasons already given, from exercising my discretion in favour of making the orders sought.
I therefore dismiss the application.
As each party has succeeded in part and failed in part in the submissions put to the Court, I consider that the appropriate order for costs is that each party should bear its own costs of these proceedings.

[1988] FCA 163

28 MARCH 1988