Carpentaria Land Council Aboriginal Corporation v Queensland

[1998] FCA 632

FEDERAL COURT OF AUSTRALIA

CARPENTARIA LAND COUNCIL ABORIGINAL CORPORATION & ORS

V

STATE OF QUEENSLAND & ORS

NG 6002 OF 1998

SUMMARY

In accordance with the practice of the Federal Court in some other cases of public interest, Beaumont J has prepared this brief summary to accompany the reasons for judgment, delivered today.  It must, of course, be emphasised that the only authoritative pronouncement of the Court’s reasons is that contained in the published reasons for judgment.  This summary is intended to assist in understanding the principal conclusions reached by the Court, but is necessarily incomplete.

IN THE FEDERAL COURT OF AUSTRALIA NG 6002 of 1998

BETWEEN:	CARPENTARIA LAND COUNCIL ABORIGINAL CORPORATION & ORS APPLICANTS
AND:	STATE OF QUEENSLAND & ORS RESPONDENTS

JUDGE:	BEAUMONT J.
DATE:	3 JUNE 1998
PLACE:	HEARD IN BRISBANE

SUMMARY OF REASONS FOR JUDGMENT GIVEN ON 3 JUNE 1998

In these proceedings the applicants (who include an Aboriginal representative body) challenged a resumption of native title interests for road and bridge works on several grounds.  Some of the grounds of the challenge have been upheld;  others have been rejected.  The applicants claim for declaratory orders that the resumption process was technically invalid has been refused;  but the Court has granted an injunction to prevent the road and bridge works, unless the Council is prepared to give an undertaking to the Court that it will negotiate with the Aboriginal representative body in this regard.

FEDERAL COURT OF AUSTRALIA

Native Title - resumption of native title rights and interests for road and bridge works - whether applicants have a sufficient interest to claim the relief sought - whether notice of acquisition and subsequent Proclamation are invalid - whether notice failed to provide information regarding the Council’s willingness to negotiate - whether notice misleading with respect to extinguishment of native title - whether notice failed to identify substantially the land taken - whether the identification of the interests taken was ambiguous and insufficient - whether notice was given for an impermissible private purpose - whether unlawful - whether injunction should lie unless acquiring authority undertakes to negotiate.

Native Title Act 1993 - ss 23, 26, 79
Acquisition of Land Act 1967 (Qld) - ss 7, 238
Native Title (Queensland) Act 1993 (Qld) - ss 148, 151

Onus v Alcoa of Australia Ltd (1982) 149 CLR 27 - appl.
Prentice v Brisbane City Council (1966) Qd.R 394 - cons.
Bartrum v Manurewa Borough (1962) N.Z.L.R. 21 - cons.
Westminster Corporation v London and North Western Railway [1905] AC 426 - cons.
Werribee Council v Kerr (1928) 42 CLR 1 - cons.
Scurr v Brisbane City Council (1973) 133 CLR 242 - cons.
Project Blue Sky v Australian Broadcasting Authority (1998) HCA 28 - appl.

CARPENTARIA LAND COUNCIL ABORIGINAL CORPORATION, VICTOR JACOB, HENRY APLIN AND EDWIN JACOB V STATE OF QUEENSLAND, COUNCIL OF THE SHIRE OF BURKE AND PASMINCO CENTURY MINE LTD

NG 6002 of 1998

JUDGE:         BEAUMONT J.
PLACE:         HEARD IN BRISBANE
DATE:           3 JUNE 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 6002  of   1998

BETWEEN:

CARPENTARIA LAND COUNCIL ABORIGINAL CORPORATION
FIRST APPLICANT

VICTOR JACOB
SECOND APPLICANT

HENRY APLIN
THIRD APPLICANT

EDWIN JACOB
FOURTH APPLICANT

AND:

STATE OF QUEENSLAND
FIRST RESPONDENT

COUNCIL OF THE SHIRE OF BURKE
SECOND RESPONDENT

PASMINCO CENTURY MINE LTD
THIRD RESPONDENT

JUDGE:

BEAUMONT J.

DATE OF ORDER:

3 JUNE 1998

WHERE MADE:

BRISBANE

ORDERS:

1. Unless, on or before 24 June 1998, the second respondent shall, if so advised, file in the Queensland District Registry and serve a written undertaking to the Court that it will negotiate in good faith with the first applicant with respect to - (a) the taking of the native title rights and interests the subject of the Proclamation dated 22 January 1998; (b) all consequential matters, including compensation;  and (c) any request for non-monetary compensation - order that the second and third respondents, by themselves, their servants and agents, be restrained from giving effect to the purposes of the said taking, and in particular from carrying out the road and bridge works described in the Notice of intended resumption given by the second respondent to the first applicant dated 8 September 1997.

1. Application otherwise dismissed.

1. Reserve liberty to any party, if so advised, to apply for any costs upon filing and serving within 21 days a written submission applying for such costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 6002 of 1998

BETWEEN:

CARPENTARIA LAND COUNCIL ABORIGINAL CORPORATION
FIRST APPLICANT

VICTOR JACOB
SECOND APPLICANT

HENRY APLIN
THIRD APPLICANT

EDWIN JACOB
FOURTH APPLICANT

AND:

STATE OF QUEENSLAND
FIRST RESPONDENT

COUNCIL OF THE SHIRE OF BURKE
SECOND RESPONDENT

PASMINCO CENTURY MINE LTD
THIRD RESPONDENT

JUDGE:	BEAUMONT J.
DATE:	3 JUNE 1998
PLACE:	HEARD IN BRISBANE

REASONS FOR JUDGMENT

BEAUMONT J:

INTRODUCTION
This is the final hearing of an application by an Aboriginal representative body and by the persons who claim to hold native title rights and interests:  (1) for declaratory and other relief under the Native Title Act 1993 (“the NTA”); (2) to review the validity of notices published by the Council of the Shire of Burke (“the Council”) (the second respondent) under the NTA and under the Acquisition of Land Act 1967 (Qld) (“the ALA”) of the Council’s intention to acquire native title rights and interests in certain lands near the Gregory River in the Shire of Burke (“the Lands”); (3) to review the validity of a proclamation in this connection dated 22 January 1998 made by the Governor of Queensland, published in the Queensland Government Gazette on 23 January 1998 (“the Proclamation”); and (4) to restrain the Council and Pasminco Century Mine Ltd (“Pasminco”) (the third respondent) from constructing any road or bridge upon the Lands until such time as the Lands have been validly acquired by the Council in accordance with the requirements of both the NTA and the ALA, or until the native title holders have consented to this.

The Carpentaria Land Council Aboriginal Corporation (“CLCAC”) (first applicant) is a corporation established under the Aboriginal Councils and Associations Act 1976 and is the Aboriginal/Torres Strait Islander representative body under s 202 of the NTA for the southern Gulf of Carpentaria region. The Lands are situate in this region. Victor Jacob, Henry Aplin and Edwin Jacob (the second, third and fourth applicants) are Aboriginal people who claim to hold native title rights and interests in respect of the Lands. They are registered native title claimants in the Gregory River Native Title Claim, lodged with the National Native Title Tribunal on 9 April 1998, that is, at the time of the commencement of these proceedings.

The jurisdiction of the Court, under either s 39B(1A) of the Judiciary Act 1903, or s 213(2) of the NTA, or the accrued jurisdiction of the Court, or s 4(2) of the Jurisdiction of Courts (Cross Vesting) Act  1987 or s 4(1) of the Jurisdiction of Courts (Cross Vesting) Act  1987 (Qld), to entertain the proceedings, is not disputed.  I am satisfied that the Court does have jurisdiction from one or more of these sources (cf. The Wik Peoples v Queensland (1994) 49 FCR 1 at 9-11; Fejo v Northern Territory (1998) 152 ALR 477 at 482).

THE COUNCIL’S NOTICE OF INTENTION TO COMPULSORY ACQUIRE ALL NATIVE TITLE RIGHTS AND INTERESTS IN THE LANDS
By letter to the CLCAC dated 8 September 1997, Resource & Land Management Services Pty Ltd, acting on behalf of the Council with regard to “cultural clearance” and the acquisition of lands for the upgrade of Gregory-Lawn Hill Road and for bridge work at Gregory River, informed the CLCAC that the Council intended to compulsorily acquire “any native title rights and interests in the affected lands”.  The letter indicated the six areas of land concerned (being the sites of the bridge and road works) and referred to the plans which were attached.  The letter went on to state that the acquisition process should commence on 10 October 1997 and that following the acquisition, “all areas will be used as roads or a bridge until such time as they may be surrendered”;  and that disturbance to the affected land “will be tree clearing, excavation and road and bridge construction”. 

The letter enclosed a copy of a “public notice” of acquisition (“the Notice”).

The Notice, purportedly given pursuant to s 23 of the NTA, stated that the Council intended “to acquire native title rights and interests in the Land and Waters (‘land’) described in the Schedule for road construction and re-alignment and bridge construction”. The Notice was given by the Council “in its capacity as constructing authority under the provisions of the [ALA]”. The “Nature of Act” was stated to be: “The compulsory acquisition of native title rights and interests (if any) for the purpose of road works and bridge works”. It was stated that: “Only those native title rights and interests (if any) which are affected by the proposed road works and bridgeworks will be acquired. Native title will not be extinguished by the proposed acquisition” (emphasis added). With respect to the “commencement of act” the Notice stated: “The taking of land is subject to the procedural requirements of the [ALA] and s 23(5) of the [NTA]. The taking of the land will proceed if and when the Governor in Council proclaims that the land is taken in accordance with the [ALA]”.

The Notice then dealt with objections as follows: 

“Persons who are native title holders of any land may object to the proposed taking of land and may be heard in support of their objection.

To object you must send a written ‘Notice of Objection’ to -

Chief Executive Officer
Council of the Shire of Burke
PO Box 90
Burketown  4830

Your ‘Notice of Objection’ must state:

i.         the grounds of objection

ii.the facts and circumstances relied upon by you to support those grounds;  and

iii.whether you wish to be heard in support of the grounds of your objection.

You must serve your ‘Notice of Objection’ to the Chief Executive Officer of the Council on or before the 10th October 1997.

To be heard in support of the grounds of your objection you may appear to be heard by Burke Shire Council or its delegate at Burketown at a time to be negotiated on the 14th October 1997.”

With respect to the “time during which the act will continue to be done” the Notice stated:  “Following the taking of land, it will be used as a road or bridge until such time as they may be surrendered”.  In regard to the “kind of disturbance” the Notice stated:  “Disturbance to the land may be caused by the clearing, excavation and construction of roads and a bridge upon the land”.

A schedule to the Notice described the Lands, which were the sites of the road re-alignments and bridge construction, by reference to plans attached to the Notice.  A general location map was also provided in the Notice.

On 10 September 1997, the Notice was published in the Courier Mail newspaper.

THE RELEVANT SCHEME OF THE NTA
In order to understand the issues that arise in the proceedings, it will be necessary to describe the relevant legislative scheme of the NTA as follows:

For present purposes, each of the activities proposed by the respondents should be treated as a “future act” under the NTA in the sense that it will occur after 1 January 1994 (the date the NTA commenced). “Future acts” and the regime of native title are dealt with by Division 3 of Part 2 of the NTA (see, generally, Western Australia v The Commonwealth (1995) 183 CLR 373 at 437-8). Subdivision A (ss 21-25) of Division 3 deals with “General” (matters); Subdivision B (ss 26-44) deals with “Right to negotiate”.

Section 21 (in Subdivision A) deals with agreements to surrender etc. native title. Native title holders may, under an agreement with the Commonwealth, a State or a Territory: (a) by surrendering their native title rights and interests in relation to land or waters of the Commonwealth, the State or Territory, extinguish those rights or interests; or (b) authorise any “future act” that will affect their native title (s 21(1)).

An act is a “future act” in relation to land or waters if: (a) either: (i) it consists of the making, amendment or repeal of legislation and takes place on or after 1 July 1993; or (ii) it is any other act that takes place on or after 1 January 1994; (b) it is not a “past act”; and (c) apart from the NTA, either: (i) it validly affects native title in relation to the land or waters to any extent; or (ii) the following apply: (A) it is to any extent invalid; (B) it would be valid to that extent if any native title in relation to the land or waters did not exist; and (C) if it were valid to that extent, it would affect the native title (s233(1)).

By s 22 of the NTA (also in Subdivision A) it is provided that, subject to some presently immaterial exceptions, if an act is an “impermissible future act”, it is “invalid to the extent that it affects native title”. An act “affects” native title if it extinguishes the native title rights and interests, or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise (s 227). An “impermissible future act” is any future act that is not a “permissible future act” (s 236). A future “non-legislative” act in relation to an onshore place is “permissible” if the act could be done in relation to the land concerned if the native title holders concerned instead held ordinary title to it (s 235(5)). An example is the grant of a mining lease over land in relation to which there is native title, when a mining lease would also be able to be granted over the land if the native title holders instead held ordinary title to it (s 235(6)). An agreement covered by s 21 or a future act so authorised, is also a permissible future act (s 235(8)).

With some presently immaterial exceptions, s 23 of the NTA applies in certain circumstances if an act is a permissible future act. Subject to Subdivision B (which deals with the right to negotiate in some circumstances to be mentioned below), the act is valid (s 23(2)).

If (as here) the act is the acquisition of native title rights or interests under a “Compulsory Acquisition Act”, provision is made with respect to the extinguishment of native title (s 23(3)).  A “Compulsory Acquisition Act” is, inter alia, a State law which: (i) provides for compensation for the acquisition of any native title rights and interests; and (ii) contains provisions to the same effect as s 79 with respect to requests for non-monetary compensation in relation to the determination of the compensation (s 253). If, during negotiations in relation to an application under Part 3 (which deals with native title and compensation applications (Division 1) and “right to negotiate” applications (Division 2), a person who may be entitled to compensation, requests that the whole or part of the compensation should be in a form other than money, the others involved in the negotiations must: (a) consider the request; and (b) negotiate in good faith in relation to the request (s 79(1)). Examples of such a form of compensation are the transfer of property or the provision of goods or services (s 79(2)).

Compulsory acquisition of native title rights and interests is dealt with by the Native Title (Queensland) Act 1993 (Qld) (“NT(Q)A”). Amongst other things, as will be considered below, it is there provided that every State Compulsory Acquisition Act is taken to contain provisions to the same effect as s 79 of the NTA (s 151 NT(Q)A).

Section 23(3) of the NTA is important for present purposes. It provides first, that the “non-extinguishment principle” applies to the acquisition (s 23(3)(a)). A reference to that principle in relation to an act is described by s 238 relevantly as follows. If the act affects any native title, that title “is nevertheless not extinguished, either wholly or partly” (s 238(2)). In such a case, if the act is wholly inconsistent with the continued existence, enjoyment or exercise of the native title rights or interests, that title “continues to exist in its entirety but the rights and interests have no effect in relation to the Act” (s 238(3)). If there is partial inconsistency, the rights and interests have no such effect to the extent of the inconsistency (s 238(4)). If the act or its effects are later wholly or partially removed, the native title rights and interests again have full or limited effect as the case may be (s 238(6) and (7)). Secondly, s 23(3) provides that nothing in the NTA prevents any act that is done in giving effect to the purpose of the acquisition from extinguishing the native title rights and interests (s 23(3)(b)). Finally, provision is made by s 23(3) to ensure that native title holders are entitled to “just terms” compensation (s 23(3)(c)).

Procedural rights are dealt with by s 23(6). In the case of an act to which s 23 applies (other than a “low impact future act” or one to which Subdivision B applies), the native title holders have the same procedural rights as they would have in relation to the act on the assumption that they instead held ordinary title (s 23(6)(a)).

Satisfying the right to be notified is dealt with by s 23(7), another important provision for our purposes, as follows:

“(7)If:

(a)because of subsection (6) or any law of the Commonwealth, a State or a Territory, the native title holders have a procedural right that requires another person to notify them of the act;  and

(b)there has been no approved determination of the native title;

then one way in which the person may give the required notification is by doing all of the following:

(c)notifying, in the way determined in writing by the Commonwealth Minister for the purposes of this paragraph, any representative Aboriginal/Torres Strait Islander bodies for the area concerned that the act is to take place;

(d)notifying in the way determined in writing by the Commonwealth Minister for the purposes of this paragraph, any occupier of any land concerned that the act is to take place;

(e)placing notices, in the way determined in writing by the Commonwealth Minister for the purposes of this paragraph, on any land concerned, advising that the act is to take place;

(f)notifying the public in the determined way (see section 252) that the act is to take place.”  (Emphasis added).

The Commonwealth Minister has determined, pursuant to s 202(1) of the NTA, that the CLCAC is the representative body for an area which includes the Lands. Thus, for the purposes of s 23(7)(c), the CLCAC is the relevant representative body. The Minister has also made a determination for the purposes of s 23(7)(c). By the Native Title (Notices) Determination No. 1 of 1996, the Minister has determined ways of notifying a representative body of a permissible future act for the purposes of s 23(7)(c) in these terms:

“3.(1)       For the purposes of paragraph 23(7)(c) of the Act, a person may give the required notification of a permissible future act to a representative Aboriginal/Torres Strait Islander body by sending to the body, by certified mail, a letter setting out:

(a)a clear description of the land, or waters, affected by the act;  and

(b)a description of the general nature of the act;  and

(c)the time at which it is intended that the act begin;  and

(d)the time during which it is intended that the act will continue;  and

(e)an indication of the kind of disturbance that the doing of the act will cause to the land or waters.”

As has been noted, Subdivision B deals with “Right to negotiate” (see, generally, North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 at 616-7). The Subdivision applies, relevantly, if the Commonwealth, a State or a Territory (“the Government Party”) proposes to do (s 26(1)) the following (inter alia) permissible future act (s 26(2)):

“(d)the compulsory acquisition of native title rights and interests under a Compulsory Acquisition Act, where the purpose of the acquisition is to confer rights or interests in relation to the land or waters concerned on persons other than the Government party;”  (Emphasis added).

Section 28 provides that an act is invalid if done before negotiation or objection/appeal etc.  Specifically, s 28(1)(a) provides that the act is only valid if, by the end of the period starting when the notice is given under s 29, there is no native title party in relation to any of the land or waters that may be affected by the act.

Notification of parties affected is dealt with by s 29 relevantly as follows:

“29.     (1)       The Government party must give notice, in accordance with this section, of its intention to do the act.

...

(2)The Government party must give notice to:

(a)any registered native title body corporate (a ‘native title party’) in relation to any of the land or waters that will be affected by the act;  and

(b)any registered native title claimant (also a ‘native title party’) in relation to any of the land or waters that will be affected by the act;  and

(c)any representative Aboriginal/Torres Strait Islander body in relation to any of the land or waters that will be affected by the act...

...

(3)The Government party must also notify the public in the determined way of its intention to do the act.”

Section 30 provides for additional native title parties.  Specifically, s 30(a) provides that this status will be accorded to any person who, within the period of two months starting when the notice is given, becomes a registered native title claimant in relation to any of the land or waters that will be affected by the act.

Section 31 deals with the normal negotiation procedure.  By s 31(1) the Government party must:

“(a)give all native title parties an opportunity to make submissions to it, in writing or orally, regarding the act;  and

(b)negotiation in good faith with the native title parties... with a view to obtaining the agreement of the native title parties to:

(i)the doing of the act;  or

(ii)the doing of the act subject to conditions to be complied with by any of the parties.”

THE RELEVANT PROVISIONS OF THE NT(Q)A
Section 43 of the NTA provides for the modification of Subdivision B (“Right to negotiation”) where there is a satisfactory State or Territory alternative.

Division 2 of Part 12 of the NT(Q)A deals with compulsory acquisition.

Section 148 of the NT(Q)A provides for the compulsory acquisition of native title rights and interests as follows (cf. NTA ss 22(3), (5) and (6)):

“148    (1)       The whole or a part of native title rights and interests may be acquired under a State Compulsory Acquisition Act in the same way that other interests in land may be acquired.

(2)       However, the State Compulsory Acquisition Act applies to native title with changes that may be prescribed by regulation and subject to the following provisions-

·section 149 (Effect of acquisition on native title)

·section 150 (Acquisition to be on just terms)

·section 151 (Requests for non-monetary compensation).

(3)       Without limiting subsection (2), the State Compulsory Acquisition Act applies to native title with any changes prescribed by regulation that, in the Governor in Council’s opinion, are necessary or convenient to ensure that -

(a)if an acquisition is made at someone’s request, the person is liable to pay the compensation;  and

(b)native title holders (or their agents or representatives under the Commonwealth Native Title Act) have the same procedural rights as the holders of ordinary title;  and

(c)acts under the State Compulsory Acquisition Act may be excluded from the coverage of section 26(2) (which deals with acts subject to the right to negotiate) of the Commonwealth Native Title Act in appropriate cases; and

(d)the expedited procedure in section 32 of the Commonwealth Native Title Act may apply in appropriate cases; and

(e)the State Compulsory Acquisition Act may comply with section 43(2) (which deals with alternative right to negotiate provisions) of the Commonwealth Native Title Act; and

(f)the State Compulsory Acquisition Act is otherwise consistent with and gives effect to the objects and provisions of the Commonwealth Native Title Act.”  (Emphasis added).

The effect of such an acquisition is dealt with by s 149 of the NT(Q)A thus:

“149    For an acquisition of the whole or a part of any native title rights and interests under a State Compulsory Acquisition Act -

(a)the non-extinguishment principle applies to the acquisition;  and

(b)nothing in this Act prevents any act that is done in giving effect to the purpose of the acquisition from extinguishing the native title rights and interests.”  (Emphasis added).

Section 150 provides for just terms.

Section 151 of the NT(Q)A picks up s 79 of the NTA in terms.

THE PROVISIONS OF THE ALA
The “taking” of “land” is dealt with in Part 2 (ss 5-15) of this Act. “Land” is relevantly defined to mean “land, or any estate or interest in land, that is held in fee simple...” (s 2).

The purposes for which land may be taken are dealt with by s 5.  Relevantly, land may be taken, where the “constructing authority” is the Crown, for any purpose set out in Schedule 2 (s 5(1)(a)).  These purposes include “bridges” and “roads”.  Where the constructing authority is, as the Council is here, a “local authority”, land may be taken for any lawful Schedule 2 purpose (s 5(1)(b)).  “Constructing authority” is relevantly defined to mean:  (a) the Sate;  or (b) a local authority.

Notice of intention to take land is relevantly provided for by s 7 as follows:

“7.      (1)       A constructing authority which proposes to take any land shall serve as prescribed by this section the notice (a ‘notice of intention to resume’) prescribed by this section.

(2)       A notice of intention to resume shall be served upon any and every person who to the knowledge of the constructing authority -

(a)will be entitled to claim compensation under this Act in respect of the taking of the land concerned...

...

(3)       A notice of intention to resume shall be in writing and shall -

(a)specify the particular purpose for which the land to be taken is required;

(b)state the description of the land to be taken which description -

(i)if the land is described as a separate lot or parcel in a plan of survey registered in the land registry or deposited in the office of the chief executive (surveys) - shall be that description;  or

(ii)if the land is not described as mentioned in subparagraph (i) - may be made in any manner sufficient to substantially identify the land;

(c)...

(d)state that the person to whom the notice is directed may, on or before the date specified in the notice (being a date not less than 30 days after the date of the notice), serve upon the constructing authority at the address set out in the notice an objection in writing to the taking of the land.

(e)in relation to the objection mentioned in paragraph (d) - set out -

(i)that the objection must state the grounds of the objection and the facts and circumstances relied on by the objector in support of those grounds;

(ii)that any matter pertaining to the amount or payment of compensation is not a ground of objection;

(iii)that an objector who states in the objection that the objector desires to be heard in support of the grounds of the objection may appear and be heard by the constructing authority or its delegate at the time and place specified in the notice;

(f)state that the constructing authority is willing to negotiate to acquire by agreement or, failing agreement, to treat as to the compensation to be paid and all consequential matters.(Emphasis added).

(4)       ...

(4A)     ...

(4B)     ...

(5)The failure by the constructing authority to serve upon the owner a notice of intention to resume, where such failure is due to circumstances beyond the control of the constructing authority, or the failure of the constructing authority to serve upon any person other than the owner a notice of intention to resume... shall not prejudice any proclamation... with respect to any land, and any land included in any such proclamation... shall be taken in terms of the proclamation... concerned notwithstanding any such failure, and the failure by the constructing authority to serve upon any person entitled thereto any notice as prescribed by this Act shall not invalidate the continuance or discontinuance of any resumption.

(6)       In subsection (5) -

‘owner’ means, in the case of land under the Real Property Act 1861, the person registered as the proprietor in fee simple at the date of the notice of intention to resume.”

Section 8(1) deals with objections. The constructing authority must consider the grounds of any objection and the matters put forward by the objector, or the report of a delegate who has heard the objection (s 8(2)).

Section 8(2A) provides:

“(2A)  If upon such consideration, the constructing authority is of opinion that the resumption should be discontinued or that the notice of intention to resume should be amended, the constructing authority may discontinue the resumption or amend the notice of intention to resume.”

The means by which land may be taken is dealt with by s 9.  By s 9(3) it is provided:

“(3)If within the time stated in the notice of intention to resume no objection is made or if, after due consideration of all objections, the constructing authority is of opinion that the land in question is required for the purpose for which it is proposed to be taken, the constructing authority may apply to the Minister that the land be taken as prescribed by this section.”

For present purposes, “the Minister” is the Minister administering the ALA (s 9(2)(d)), that is to say, the Minister for Natural Resources.

Section 9(6) provides:

“(6)     The Governor in Council shall consider every application made to the Minister under this section, including all statements and documents or copies of documents accompanying the application and, if satisfied -

(a)that the land in question or any part thereof may be lawfully taken for the purpose for which it is proposed to be taken and should be so taken;  and

(b)that the constructing authority has done and taken reasonable things and steps for the purpose of complying with the requirements of sections 7 and 8 and, where the notice of intention to resume has not been served upon the owner as defined in section 7(6), that such failure was due to circumstances beyond the control of the constructing authority;

the Governor in Council may, by proclamation published in the Gazette, declare that the land in question or, as the case may be, such part, particulars whereof shall be contained in or annexed to the proclamation, is taken for the purpose therein mentioned as from the date of the publication in the Gazette of the .proclamation.”

The effect of a proclamation is dealt with by s 12.  Relevantly, by s 12(1)(a) it is provided that land taken by proclamation shall vest, according as the proclamation prescribes, in the Crown or in the constructing authority which requires the land on and from the date of the publication of the proclamation in the Gazette.  Where land taken vests in a constructing authority (including the Crown where the land consists of an estate or interest less than the whole estate in fee simple), it shall so vest and be held by the constructing authority for the estate or interest therein of which the land taken consists (s 12(2A)).

THE HISTORY OF THE COUNCIL’S DEALINGS WITH THE CLCAC AND WITH PASMINCO
By letter dated 3 October 1997, the CLCAC informed the Council that it was seeking instructions on whether native title holders “wish[ed] to object to the proposed works”.  The CLCAC also sought further information about the proposal.  The letter went on to say:

“In the meantime, the CLCAC believes that the notice provided is misleading and fails to comply with Shire Council’s statutory obligations.  In particular, we are of the opinion that the construction of the proposed works is likely to extinguish native title.  Could you please indicate why you say in the notice that native title will not be extinguished.  Could you also indicate in whom the acquired land will vest and whether the Shire Council is prepared to negotiate about the terms of the acquisition.

We ask that you respond immediately to the matters raised in this letter and confirm by 8 October 1997 that you will reissue the notices in proper form and in compliance with the Native Title Act 1993 and the Acquisition of Land Act 1967.”  (Emphasis added).

The Council’s Chief Executive Officer, Mr J P Garside, replied by facsimile letter dated 11 October 1997 as follows:

“Your letter of 3 October 1997 was received by Council on 10 October 1997.

You are advised:

1.As per notices and advertisements, details of the acquisition have been available for inspection.

2.Your letter of 3 October 1997 is deemed to be an objection with the right to be heard (as per the notice) on Tuesday 14 October 1997.

3.I will hear the objection and/or any supporting documentation at 3.30 pm on the said date in the Shire Hall Musgrave Street Burketown.”

The CLCAC replied by letter dated 13 October 1997 stating, inter alia:

“Unfortunately, we have not as yet received any proper response to the other matters raised in our letter, nor confirmation by you that you will reissue the notices in proper form and in compliance with relevant State and Federal legislation.  Thus, we request for a second time, that you indicate why you say in the notice that native title will not be extinguished, and ask that you indicate in whom the acquired land will vest and whether the Shire Council is prepared to negotiate about the terms of the acquisition.  Could you please also confirm that you will reissue the notices in proper form.”  (Emphasis added).

A public hearing was held in the Shire Hall on 14 October 1997.  Mr Garside, who presided, stated that the purpose of the “meeting” was “to hear submissions [on] the notice of intentions to acquire [the] native title rights and interests”.  The CLCAC was represented at the hearing by its legal officer, Ms Marnie Jane Parkinson.

Mr Garside opened the meeting as follows:

“Jack Garside:  The meeting is not an adversarial nature, it is only to take information which will be passed on to the Minister to determine what happens from this day.  It is an opportunity for any person who is an objector to lodge information, explain, expand any information that is so requested.  There has only been one notice of objection which has been from Carpentaria Land Council.  At this stage I would request Marnie to present any information that she wishes with respect to this, copies of the proceedings would be provided from the tapes.”  (Emphasis added).

Amongst other things, Ms Parkinson said:

“In particular we are concerned that the notice only reads native title will not be extinguished by the proposed acquisition.  While we agree that the non-extinguishment principle as it is generally set out in the Native Title Act of 1993 applies to the acquisition, we do not agree that native title will not be extinguished by this subsequent act.  In this case the proposed Bridge and Roadworks.  Indeed we contend that it is clear from a reading of common law that this would in fact would be the case.  Burke Shire Council has issued notice pursuant to section 23 of the Commonwealth Native Title Act which clearly states that subsection 23.3(b) is the Act of acquisition under Compulsory Acquisition Act of the whole or part of any native title rights and interests.  Nothing in this Act prevents any act from extinguishing the Native Title Rights & Interests.  Thus the reading of the Common Law in conjunction with Section 23 of the Act brings us to the conclusion that Native Title will in fact be extinguished as a result of the doing of the Act subsequent to the acquisition and that the notice in its current form is consequently misleading.

The second point that we wish to raise in relation to the form of the notice concerns Section 7 of the Acquisition of Land Act of 1967. Section 7 of this Act states that a constructing authority which proposes to take any land shall serves as prescribed by the section of the notice on notice of intention to resume prescribed by this section.

Subsection 3(f) then reads a notice of intention to resume shall be in writing and shall state amongst other things that the constructing authorit[y] is willing to negotiate to acquire by agreement or failing agreement to treat this to the compensation to be paid on all consequential notice. Thus we contend that this section of the Acquisition of Land Act is possibly not being complied with despite the fact that it appears to be mandatory requirement.

Thus in summary we contend that the notice is misleading as it fails to state that native title rights will be extinguished following the doing of the acts subsequent to the acquisition and that possibly that Burke Shire Council has failed to comply with its statutory obligations under the Acquisition of Land Act. We therefore believe the notice to be invalid...”  (Emphasis added).

Mr Garside then said:

“The information that you presented will obviously be passed through to the relevant Minister with the report.

The information I have received at this time indicates that the notice is valid, but that will not be Council’s determination to assess that.

The matter with respect the Acquisition of Land Act treat on negotiations, I also understand that this is not an absolute requirement and again that matter will be determined by the relevant Minister.”  (Emphasis added).

Ms Parkinson then requested a two week adjournment “without prejudice to [CLCAC’s] assertion... that the notice is invalid”.

Mr Garside said:

“On the basis that you require or request time to consult with the possible native title owners, I agree to your request and grant a two week time for you to consider the matter.  That being the case we would reconvene here at the same time on Tuesday 28 October 1997 at which time I would expect any information to be fully presented for submission.

I would stress that Council is an administrative process in this matter, it is not a decision making process.  It is the Minister [who is] responsible and we will just take on board any of the concerns expressed by Carpentaria Land Council.”

Between the date of this hearing and the date of the adjourned hearing, the CLCAC requested, and was given, some further information with respect to the proposal, including an archaeological survey and a management plan.

The adjourned public hearing held on 24 October 1997 was presided over by Mr Craig Turnour, the Council’s Acting Chief Executive Officer.  Mr Turnour repeated, in substance, the opening statement previously made by Mr Garside.  Ms Parkinson handed Mr Turnour a written submission by the CLCAC dated 24 October 1997 and said:

“We have nothing more to say apart from that which was said on the 14^th October primarily because our requests of the 14^th October haven’t been answered yet and we are of the opinion that they need to be answered first before we can properly inform and receive further instructions from the native title holders.  The written submission that we would like you to accept expands a little bit more detail on the oral submission that was made on the 14^th October.  If you’ve got no other questions we’d only like you to accept this written submission unless of course you want me to read it now.”

Mr Turnour said:

“No, I’ll accept the written one as being tabled.  My understanding is the process now is that we will prepare a report to the Minister, we’ll take on board the written submission and your comments from the 14^th October.  Our report will be given to you in draft form and then you are welcome to make any comments on that report and that will be included in our submission to the Minister.”

CLCAC’s written submission elaborated at some length upon the legal arguments advanced by Ms Parkinson on 14 October 1997, and continued as follows:

“Further action

The CLCAC requests that the following immediate action be taken with respect to the proposed acquisition:

1.That the constructing authority not apply to the Minister for the acquisition to occur.

2.That the notices be reissued in proper form and in compliance with the relevant provisions of the Native Title Act 1993 (Cth) and Acquisition of Lands Act 1967.

3.The process and time-frames for notification and objection to the acquisition recommence.

4.The constructing authority provide the CLCAC with the information it requested in its letters of 3 October 1997 and 13 October 1997, namely:

i)Copies of environmental, heritage and other reports in relation to the proposal (other than that already provided by the Department of Economic Development and Trade);

ii)Advice as to the basis by which the constructing authority believes that native title  is not extinguished.

iii)Advice as to in whom the acquired land will vest upon acquisition;  and,

iv)Advice as to whether the constructing authority is prepared to negotiate the terms of the acquisition.”  (Emphasis added).

By letter to the CLCAC dated 3 November 1997, Mr Turnour forwarded his written report rejecting each of its objections.  Mr Turnour referred, inter alia, to enclosed advice from the Director, Legal Branch, Queensland Department of the Premier and Cabinet dated 28 October 1997.  In that advice, the opinion was expressed that the omission to state in the notice that the Council was willing to negotiate (as required by s 7(3)(f) of the ALA), did “not invalidate the notice and is not a reason to discontinue the acquisition”.  (Emphasis added

By letter to the Council dated 14 November 1997, the CLCAC sought to maintain its objections.  It said, inter alia:

“Despite repeated requests, Burke Shire Council failed to advise the CLCAC as to whether they were willing to negotiate over the acquisition.  This was a mandatory requirement of the notice.  It was information which all other title holders were entitled to receive.  The failure to provide such information has meant that the native title holders have been unaware as to the extent to which representations could be made, and negotiations take place, in relation to the exact location of the proposed acquisition.

Not only does CLCAC believe that the notices are invalid, but they have been denied information which should have been in the notice, and in any event were entitled to, despite repeated requests to the constructing authority for that information.”

By letter to the Queensland Department of Natural Resources dated 1 December 1997, the Council provided the Minister of that Department (the Minister administering the ALA) with a report by Mr Turnour of even date, dealing again with the CLCAC’s objections in terms similar to the Council’s previous report dated 3 November 1997. The report concluded:

“3.      CONCLUSION

Having considered the objections and advice received, I believe that the site survey undertaken has adequately highlighted sites of cultural heritage significant.  Accordingly, the recommendations included in this site survey should be implemented so as to ensure the integrity of sites both inside and outside the corridor affected by works associated with the corridor.

Given this, there is no reason why the proposed acquisition should not proceed.”

The letter to the Department stated:

“I enclose my report for the Minister for Natural Resources’ consideration for the proposed acquisition of native title rights and interests under the Acquisition of Land Act 1967.

The purpose of acquisition is for the construction of approach roads to and a bridge across the Gregory River at Gregory, realignment of sections of the Gregory-Lawn Hill Road and the construction of Zinc Hills Diversion and Lawn Hill by-pass Roads.

Please advise once a decision has been made on the proposed acquisition by the Minister.”

On 19 November 1997, the Council and Pasminco entered into a “Roads Agreement”.  Its recitals are as follows:

“RECITALS

A.[Pasminco] is the proponent of the construction and development of a new mine located in North West Queensland and of all associated infrastructure (the Pasminco Century Project).

B.[Pasminco] requires a reliable and safe transport route form the Gregory village to the Century mine site for the construction and operation of the mine.  This will involve the construction of a new bridge across the Gregory River and the upgrading of a 44.116 km section of the Gregory-Lawn Hill road from the Gregory village to the mine site turn-off and a 20 km deviation road on the western side of the Zinc Hills entering the Lawn Hill road at Adell’s Grove (“the Works”).

C.[The Council] is the local authority responsible for the area where the Works are located.

D.[The Council] will be responsible for the timely acquisition of all the land required for [Pasminco] to carry out the Works.

E.[Pasminco] is prepared to design, construct and handover to [the Council] the Works at no cost to [the Council].

F.[Pasminco] & [the Council] acknowledge the acquisition of the land is for public purposes.  The upgraded transport route will be available for public use and will not be for the sole use of [Pasminco].”  (Emphasis added).

The acquisition of land is dealt with in the Roads Agreement as follows:

“2.      ACQUISITION OF LAND

2.1[The Council] will without delay take all necessary action under the provisions of the Acquisition of Land Act 1967 to acquire the Necessary Lands to enable [Pasminco] to carry out the Works.

2.2[The Council] will pay all costs and expenses, including legal costs, incurred by [the Council] in acquiring the Necessary Lands and such costs and expenses shall be refunded by [Pasminco] to [the Council] in accordance with clause. 8.

2.3[The Council] will at all times keep [Pasminco] informed as to the process of the acquisition of the Necessary Lands.

2.4[Pasminco] will provide [the Council] certified survey drawings of all areas of the Necessary Lands and any engineering assistance which [the Council] may require during the acquisition process.

2.5[The Council] is responsible for the obtaining of all necessary clearance of any description whatsoever required for the acquisition of the Necessary Lands and the obtaining of all necessary clearances to enable [Pasminco] access to and use of the Gravel Pit and Borrow Pit Areas and for resolving any native title issues in respect of the Necessary Lands or the Gravel Pit and Borrow Pit Areas.

2.6[Pasminco] indemnifies [the Council] in respect of any payment of compensation under the Acquisition of Land Act to any party arising out of the acquisition of the Necessary Lands by [the Council] , or payment of any compensation to any party arising out of the obtaining of access to and use of the Gravel Pit and Borrow Pit Areas but not for any costs incurred by [the Council] in assessing the compensation or any proceedings associated with any claims arising as a consequence of any action taken by BSC pursuant to clauses 2.1 or 2.5 that [the Council] may independently pursue.”

Clause 4.9 of the Roads Agreement provides:

“Upon [Pasminco] advising [the Council] , after clause 2.5 has been complied with, that it requires possession of the Necessary Lands to carry out the Works, [the Council] will provide such possession to [Pasminco].”

THE PROCLAMATION
The Proclamation was in these terms:

“Acquisition of Land Act 1967
Native Title Act 1993 (Commonwealth)
PROCLAMATION

I, MAJOR GENERAL PETER ARNISON, Governor, declare that the land described in the Schedule -

(a)the native title rights and interests in the land described in the Schedule (‘land’) are taken by the Council of the Shire of Burke for road purposes as from 23 January 1998;  and

(b)vest in the Council of the Shire of Burke.

[L.S.]

PETER ARNISON

Governor

Signed and sealed on 22 January 1998.

By Command  H W T Hobbs

God Save the Queen

SCHEDULE

West Region, Cloncurry District, Cloncurry Office

Land Taken.”

There follows a description of several areas of the subject lands.

THE APPLICANTS’ STANDING
As a preliminary point, the respondents object to the applicants’ standing to bring these proceedings.  The respondents argue that only a person who has established title as a holder of a native title right or interest would have the requisite standing to bring these proceedings, and that none of the applicants has sought to demonstrate any such title here.

In my opinion, whilst actual entitlement to specific compensation (an issue that does not arise here) would involve vindication of a private right and thus require proof of title, the present question of standing calls for a much broader inquiry.  The question here is whether any of the applicants has a sufficient interest to claim the relief now sought, upon the footing that an act has, or will, occur that is said by the applicants to be unlawful, that is, in contravention of the Federal and State laws, so that declaratory and injunctive relief should now be granted.  There is no present claim for compensation before the Court.

In Onus v Alcoa of Australia Ltd (1982) 149 CLR 27, it was held that persons claiming to be the aboriginal custodians of relics had sufficient standing to commence an action to restrain a contravention of legislation for protection of aboriginal relics. Gibbs CJ said (at 36):

“It seems to me that the appellants have an interest in the subject matter of the present action which is greater than that of other members of the public and indeed greater than that of other persons of aboriginal descent who are not members of the Gournditch-jmara people.  The appellants, and other members of the Gournditch-jmara people, would be more particularly affected than other members of the Australian community by the destruction of the relics.  The appellants claim that, in common with other members of the Gournditch-jmara people, they are the custodians of the relics according to the laws and customs of those people.  They claim that the relics are of cultural and spiritual importance to them, and that they have used the relics to teach their children the culture of their people.”

His Honour went on to say (at 37):

“The present is not a case in which a plaintiff sues in an attempt to give effect to his beliefs or opinions on a matter which does not affect him personally except in so far as he holds beliefs or opinions about it.  The appellants claim not only that their relics have a cultural and spiritual significance, but that they are custodians of them according to the laws and customs of their people, and that they actually use them.  The position of a small community of aboriginal people of a particular group living in a particular area which that group has traditionally occupied, and which claims an interest in relics of their ancestors found in that area, is very different indeed from that of a diverse group of white Australians associated by some common opinion on a matter of social policy which might equally concern any other Australian.  Counsel for Alcoa sought to meet the claim that the appellants and the other members of the Gournditch-jmara community put the relics to actual use by submitting that no relief could be given to them which would enable them to continue to sue the relics.  Alcoa, he said, has the right to occupy, and indeed owns, the land;  the appellants have no right to resort to the land and therefore could gain no advantage from success in the present action.  There is therefore, he submitted, no sufficient relationship between the facts relied on as giving standing and the relief sought in the action.  With all respect this argument, although plausible, is unconvincing.  If the relics are preserved, the appellants will at least have a possible opportunity to have access to them.”

In my opinion, this reasoning is analogous here, at least so far as concerns the CLCAC, upon which the Notice was served pursuant to s 23(7), as the representative body. In this connection, it is material to note the following functions of such a body conferred by s 202(4) of the NTA:

“(4)     A representative Aboriginal/Torres Strait Islander body may:

(a)facilitate the researching, preparation or making of claims, by individuals or groups from among Aboriginal peoples or Torres Strait Islanders, for determinations of native title or for compensation for acts affecting native title;  or

(b)assist in the resolution of disagreements among such individuals or groups about the making of such claims;  or

(c)assist such individuals or groups by representing them, if requested to do so, in negotiations and proceedings relating to the doing of acts affecting native title, the provision of compensation in relation to such acts or any other matter relevant to the operation of this Act.”

These statutory functions, read in conjunction with Council’s use here of s 23(7), reinforce the conclusion that the CLCAC at least had standing to commence these proceedings. I need not then consider the position of the individual applicants.

THE APPLICANTS’ CHALLENGE TO THE COUNCIL’S NOTICE OF INTENTION TO RESUME
Against the foregoing factual background and statutory contexts, it will be convenient to consider next the challenge to the notice of intention to resume the native title rights and interests.

By their amended statement of claim, the applicants claim that the Notice was invalid for several reasons. They say firstly, that the Notice did not contain the information concerning the Council’s willingness to negotiate which, they argue, is required by virtue of the provisions of s 7(3)(f) of the ALA and by the several provisions of the Federal and State native title legislation previously mentioned; secondly, the applicants claim that the Notice was misleading, and omitted necessary information, concerning the position with respect to extinguishment (in particular with respect to the dictates of s 23 of the NTA), and otherwise, in particular in failing to identify substantially the land taken; and thirdly, the applicants claim that the Notice is bad because its attempt at identification of the interests taken is ambiguous and insufficient.

CONCLUSIONS ON THE VALIDITY OF THE NOTICE OF INTENTION TO ACQUIRE
Did the notice comply with s 7 of the ALA?
It will be convenient to consider first whether the Council complied with the relevant requirements of s 7 of the ALA, before turning to the provisions of the NTA and the NT(Q)A.

(a) Were the requirements of s 7 of the ALA complied with?

The initial matter to be considered is the true construction of the Notice. It purports to be given under both s 23 of the NTA and the ALA, so that the Notice ought to be construed in both those statutory contexts. I will come to the requirements of the NTA later, but there is no reason in principle why a single notice cannot comply with both statutes. Indeed, as has been seen, the object of both the Federal and the State legislation is to achieve, at least in the area of compulsory acquisition, a joint or co-operative national scheme. Moreover, s 148(1) of the NT(Q)A specifically contemplates resumption of native title interests.

(i) Identification of the “land” - s 7(3)(b)

So far as concerns the ALA, the operative statement of intention is that the Council, as the constructing authority, intends to acquire native title rights and interests in the lands described in the schedule to the Notice “for” road construction and realignment and bridge construction. The schedule gives several plan references. When reference is made to the diagrams shown on those plans, it is possible to identify those areas of land intended to be excised “for” road and bridge works. In other words, the Notice can reasonably, and should, be read as indicating an intention to acquire all native title interests, if any, in those areas of land.

It may be that another possible interpretation of the Notice could be that all that was intended to be resumed were these native title interests in the Lands, but only to the extent required for the indicated purpose.  If that were intended, it may have been difficult to express that intention with sufficient certainty so that the interests being acquired, in whole or in part, were adequately identified.  Specifically, if that were intended, it would then have been necessary to identify precisely the extent of the impact of the road and bridge works upon the native title interests affected.  This may not have been practicable.  However, when the Notice is read as a whole, it appears that, although the road and bridge works purpose is indicated, the intention to take all native title interests (if any) in respect of the areas of land then described, emerges, as a separate aspect, with sufficient clarity. 

In my opinion, the provisions of s 7(3)(b)(ii) are satisfied. Nor, in my view, is there anything misleading in that description of the “land”, i.e. the native title interests, in those areas. In other words, I would not read the reference to the purpose of the taking as bearing upon the identification of the interests proposed to be resumed.

(ii) The statement of Council’s willingness to negotiate - s 7(3)(f)

As has been seen, s 7(3)(f) provides that the Notice “shall... state that the constructing authority is willing to negotiate to acquire by agreement or, failing agreement, to treat as to the compensation to be paid and all consequential matters”. No statement in these terms, or to this effect, was made in the Notice. It must follow, in my opinion, that s 7(3)(f) was not complied with.

I will consider later the consequences, if any, of this non-compliance, but I should say at this stage that, in my view, the provisions of s 7(5) of the ALA have no application here. As has been noted, it is provided by s 7(5) that a resumption is not invalidated where the failure to serve a s 7(3) notice upon the “owner” is due to circumstances beyond the control of the constructing authority. It appears that the Council may not, at the time, have known the identity of those who now claim to be native title holders. Yet, pursuant to s 23(7)(c) of the NTA, the Council elected, as it was entitled, to satisfy the right of such holders to be notified by notifying the CLCAC, as the representative body concerned. In my view, this was proper service of the Notice for the purposes of s 7(1) of the ALA, so that there was no failure to serve within the meaning of s 7(5). In any event, the present question goes to the content of the Notice, not its service. There is no complaint about service, as such. The complaint is about the lack of any indication by the Council to anybody of its willingness to negotiate at all.

(b)Was it misleading to state in the Notice that “native title will not be extinguished by the proposed acquisition”?

The provisions of s 23(3)(a) of the NTA, read in conjunction with s 238(2) of that Act, indicate that the statement in the Notice was literally true. A statement which is literally true may, nonetheless, be capable of misleading as, for instance, a process of selective quotation can create a false impression. That is, a statement may be false, not only because of what it stated, but also because of what it concealed, or omitted (see, e.g. The King v Kylsant [Lord] [1932] 1 KB 442). But I do not think that the “half-truth” principle is applicable here. The NTA draws a bright line between any act of compulsory acquisition on the one hand (s 23(3)(a)) (non-extinguishment) and an act “done in giving effect to the purpose of the acquisition” on the other (s 23(3)(b)) (not prevented from extinguishing). In my opinion, the Notice was doing no more than accurately restating the effect of s 23(3)(a). To that extent it was not misleading. To attempt to go further in the Notice and predict accurately any possible extinguishment as a result of the carrying out of the road and bridge works (see e.g. Fourmile v Selpam Pty Ltd (1998) 152 ALR 294), would have been a complex, perhaps impracticable, undertaking which could, itself, have created a misleading impression. There was no specific obligation to do so imposed upon the Council by any statute. Omission to do so was not, in my view, likely to mislead.

(c)       Was the Notice given for an impermissible private purpose?

On behalf of the applicants, it is submitted that the acquisitions were undertaken in order to satisfy the obligations of the Council to Pasminco under the Roads Agreement.  It is said that, absent this Agreement, the acquisition would never have taken place.  Reference is made by the applicants to the circumstances that both the identity of the specific land, and the timing of the acquisitions, were nominated with particularity in the Agreement.  The applicants acknowledge that there is (uncontested) evidence that there will be “flow-on benefits” from the works proposed for residents of the Shire (and other members of the public, including tourists, especially in the wet season).  However, their argument runs, it should be inferred that these lands, and interests, are being obtained for the purpose of a private venture which might never go ahead.  It is submitted that the Council acted outside its powers for an essentially private purpose for the reasons applied in similar circumstances by Mansfield CJ in Prentice v Brisbane City Council (1966) Qd.R 394).

In Prentice, a council resolved to resume land in order to provide a road leading to a bridge proposed to be constructed across a river by a developer;  the bridge was to provide access to an area of land on the other (southern) side of the river, which was proposed to be developed.  The council had entered into an agreement with the developer containing, inter alia, a commitment (in cl 12) that the council would construct the approach road in consideration of the developer’s paying the council £150,000.  Of this provision, Mansfield CJ said (at 408):

“The Council, by this clause, bound itself to carry out the resumption of lands and the construction of roads on the northern side of the river for the benefit of the company.  That it was a benefit is indicated by the amount of consideration which the company was prepared to pay.”

In holding that the council ought to be enjoined from proceeding with the proposed resumption, the Chief Justice mentioned (at 405) the council’s duty to exercise its powers “in good faith” and “reasonably” so as not to abuse its powers, and said (at 410):

“... the Council’s main purpose in resolving that any of the plaintiff’s lands were required was to assist the ‘development’ plan of the company, notwithstanding that in a broad sense the interests of the city and its inhabitants were being served by the subdivision and the opening up of the lands on the southern bank of the river and by the essential concomitant of that subdivision - namely, the provision of a bridge and access thereto.  The Council had entered into an agreement with the company, which in effect made the Council the agent of the company rather than that of the inhabitants in general, when it purported to put into operation its powers of resumption of the plaintiff’s land:  cf Bartrum v Manurewa Borough (1962) N.Z.L.R. 21.”  (Emphasis added).

In Bartrum, it was held that it was beyond the powers of a local authority to take land from a private person in order to provide another private person with sufficient road access to enable him to subdivide his land if such taking is not done in good faith for the relevant statutory purposes;  and instead of promoting the public benefit (except in an indirect manner) is promoting the interest of the subdividing owner.  Hardie Boys J said (at 26-7):

“Mr Wood contents that under the authority of... two cases, Rolls v. School Board for London (1884) 27 Ch.D. 639 and Parry v. Metropolitan Borough of Hammersmith (1904) 92 L.T. 161... the defendant has power to do just what was done here... ...[T]hese cases... in my view they are quite clearly distinguishable form the present case.  In the first... the School Board had a direct interest in acquiring the plaintiff’s land, although avowedly with the intention of conveying it to a third party, for the acquisition of part of the third party’s land would give the School Board direct access by road to a proposed school.  Similarly, in the second of the cases, the Metropolitan Borough of Hammersmith had a direct and community interest in acquiring the plaintiff’s land so that the London County Council could put a tramway through the Borough.  In the one case the direct interest of the School Board and in the other the direct community interest of the borough are entirely different form the interest claimed to exist in taking the land of a private person to assist the subdivisional plan of another private person, notwithstanding that in a broad sense it is to the interest of the Borough and its inhabitants to facilitate by all proper means the subdivision of available residential areas which result in an increase in the unimproved value of the land and therefore bring in more rates, and bring more dwelling sections and therefore more inhabitants into the Borough.  When to these differences in interest there is added the feature of the prior bargain made with Lomas so that the council in very truth became his agent in what it did rather than the agent of the inhabitants in general, I cannot escape the conviction that what the defendant has done here is brought within the criticism of their Lordships in Westminster Corporation v. London and North Western Railway Co...”  (Emphasis added).

In Westminster Corporation v London and North Western Railway [1905] AC 426, the Earl of Halsbury LC said (at 428):

“... if the power to make one kind of building was fraudulently used for the purpose of making another kind of building, the power given by the Legislature for one purpose could not be used for another;”

For another application of the “Westminster” principle see Howarth v McMahon (1951) 82 CLR 442 per Dixon, Williams and Webb JJ at 449; see also Brown, Land Acquisition, 3^rd ed. (1991) at 35.  Where the proceedings of a council are attacked upon this ground, “the party impeaching these proceedings must, of course, prove that the Council, though professing to exercise its powers for the statutory purpose, is in fact employing them in furtherance of some ulterior object” (see Werribee Council v Kerr (1928) 42 CLR 1 per Knox CJ at 8).

In Kerr, Higgins J said (at 31):

“But the burden of proof lies on the plaintiff to show that the purpose allowed by the Act was not the purpose of the Council.  If the real purpose was a road, the Courts have no right, and no desire, to substitute their own judgment for the judgment of the administrative body to which the responsibility is entrusted by the Legislature.”

In his affidavit sworn on 20 May 1998, Mr Turnour said:

“22.     It is, and has been for a long time, the view of the Burke Shire Council that a new bridge over the Gregory River and the upgrading of the roads referred to in the roads agreement are desirable in the interests of the population of the Burke Shire and of the Doomadgee Aboriginal Community council.  However, the Burke Shire Council does not have sufficient funds to engage in work of this magnitude.  The Burke Shire extends over approximately 41,802 km² but because of its scattered population has only a limited budget with which to service that large area.  At present only about 2% of the roads in the Burke Shire are sealed.  As I have said, the Council’s funds do not extend beyond the grading of the roads approximately once a year.  In the past, when more extensive repairs have been necessary because of heavy wet season flood damage, the Council has been forced to seek funding from the State Government.  The roads agreement represents an opportunity to the Burke Shire Council to have a new all weather bridge across the Gregory River, and substantially improve the road access throughout the area shown in annexure ‘B’, which the Council would otherwise be unable to achieve.  The roads agreement represents a real opportunity for the Council to procure major improvements for the benefit of the people of the Shire, which the Council would otherwise be unable to afford.”  (Emphasis added).

In her affidavit evidence, the Council’s Mayor, Ms A M D Clarke, agreed with Mr Turnour’s views.  Both witnesses were cross-examined, but I accept entirely their evidence in this regard.

In my opinion, on the facts disclosed in the evidence, there was no improper or ulterior purpose in the present resumption proposal.  There were transparent benefits flowing from it for each of the Council, its residents, the general public and Pasminco.  There was no bad faith in what was done and no constructive failure (as in Howarth) to use the resumption power for its true statutory purpose.  Nor, in my view, was there any abdication by the Council of its statutory responsibilities in the sense explained in Bartrum and in Prentice.  True, the Roads Agreement conferred some rights upon Pasminco, but this was done in return for benefits for the Shire as a quid pro quo.  The recitals to the Roads Agreement acknowledge, and anticipate, the public’s right to use the facilities.  There appears to be nothing in the evidence to suggest any unconscionable dealing between the Council and Pasminco, and no suggestion that Pasminco overbore the Council;  and the Council clearly had the support of the State Government.  In my view, the notice was not vitiated by any impermissible private purpose of the kind found on the facts in Prentice.  The applicants have not shown that the acquisition was for an unauthorised purpose which, as a question of fact, was a substantial purpose of the acquisition (see Samrein Pty Ltd v Metropolitan Water Sewerage & Drainage Board (1982) 56 ALJR 678 per Gibbs CJ, Mason, Murphy, Wilson and Brennan JJ at 679).

CONCLUSIONS ON THE CONSEQUENCES OF THE COUNCIL’S FAILURE TO STATE IN THE NOTICE, OR ELSEWHERE THAT IT WAS WILLING TO NEGOTIATE
Given my findings - first that, contrary to the requirement of s 7(3)(f) of the ALA, the Council failed to state that it was willing to negotiate with the CLCAC; and secondly that, contrary to s 151 of the NT(Q)A, the Council refused to negotiate with CLCAC on non-monetary compensation - does it follow that the Notice, and thus the resumption in the Proclamation itself, were invalid?

On behalf of the applicants, it is submitted that the validity of the notice must be tested against the purpose or purposes which the statutory requirement for notice seeks to achieve. The first purpose of the s 7 Notice should have been, they say, to ensure that holders of native title rights and interests were informed of the acquisition which is proposed. The second purpose, they contend, was to ensure that the holders were given appropriate information, such that they might, if so desired, formulate a relevant objection (s 7(3)(e)) or enter into meaningful negotiations (s 7(3)(f)). Here, the applicants’ argument runs, since there was no reference made in the notice to any willingness to negotiate, the notice is misleading and invalid. Reliance is placed by the applicants upon the reasoning of Stephen J in Scurr v Brisbane City Council (1973) 133 CLR 242 at 251-2.

In Scurr, an advertisement of a development application conveyed a seriously misleading impression of the proposal.  It was held by the High Court that the advertisement did not set out adequate particulars of the proposed development application and did not conform with the statute;  that the statutory provisions concerning the content of advertisements were mandatory (at 255);  and that even if the provisions were directory, they had not been substantially complied with (at 256).  Hence, it was held, the Council’s proposal to grant development consent was invalid.

The traditional mandatory/directory distinction and its application in Scurr were recently critically examined by the High Court in Project Blue Sky v Australian Broadcasting Authority (1998) HCA 28. McHugh, Gummow, Kirby and Hayne JJ said (at [91]):

“An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect.  Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition.  The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.  Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment.  The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances.  There is no decisive rule that can be applied;  there is not even a ranking of relevant factors or categories to give guidance on the issue.”

Their Honours then turned specifically to the traditional mandatory/directory distinction and said (at [92]):

“...if the statutory condition is regarded as directory, an act done in breach of it does not result in invalidity.  However, statements can be found in the cases to support the proposition that, even if the condition is classified as directory, invalidity will result from non-compliance unless there has been ‘substantial compliance’ with the provisions governing the exercise of the power.”

One of the cases referred to by their Honours here was Scurr itself at 255-6.

McHugh, Gummow, Kirby and Hayne JJ proceeded to say (at [92-3]):

“But it is impossible to reconcile these statements with the many cases which have held an act valid where there has been no substantial compliance with the provision authorising the act in question.  Indeed in many of these cases, substantial compliance was not an issue simply because, as Dawson J pointed out in Hunter Resources Ltd v Melville when discussing the statutory provision in that case:

‘substantial compliance with the relevant statutory requirement was not possible.  Either there was compliance or there was not.’

In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the ‘elusive’ distinction between directory and mandatory requirements and the division of directory acts into those which have substantially complied with a statutory command and those which have not.  They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid.  The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds.  The classification is the end of the inquiry, not the beginning.  That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision.  A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid.  This has been the preferred approach of courts in this country in recent years, particularly in New South Wales.  In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute.”  (Emphasis added).

In later addressing the case at hand, their Honours said (at [98]-[100]):

“Expense, inconvenience and loss of investor confidence must be regarded as real possibilities if acts done in breach of s 160 are invalid.

Because that is so, the best interpretation of s 160 is that, while it imposes a legal duty o the ABA, an act done in breach of its provisions is not invalid.

In a case like the present, however, the difference between holding an act done in breach of s 160 is invalid and holding it is valid is likely to be of significance only in respect of actions already carried out by, or done in reliance on the conduct of, the ABA.  Although an act done in contravention of s 160 is not invalid, it is a breach of the Act and therefore unlawful.  Failure to comply with a directory provision ‘may in particular cases be punishable’.  That being so, a person with sufficient interest is entitled to sue for a declaration that the ABA has acted in breach of the Act and, in an appropriate case, obtain an injunction restraining that body from taking any further action based on its unlawful action.”  (Emphasis added).

As has been noted, I am of the opinion that the CLCAC at least had standing to commence these proceedings and thus to seek appropriate relief.  I will address below the question of what relief, if any, is appropriate to be granted.

CONCLUSIONS ON WHETHER THERE WAS COMPLIANCE BY THE COUNCIL’S NOTICE WITH THE REQUIREMENTS OF THE FEDERAL AND STATE NATIVE TITLE LEGISLATION
The non-extinguishment aspect of the Notice has already been dealt with, but other matters were relied on by the applicants under this legislation, specifically the Council’s omission to comply with its statutory obligations to negotiate.

As has been noted, s 23(6) of the NTA picks up “the same procedural rights” as ordinary title holders enjoy. Relevantly, this would pick up the entitlement to notice in the terms specified in s 7(3) of the ALA, including notification of council’s willingness to negotiate under s 7(3)(f). However, by s 23(7) of the NTA, the right to be notified may be satisfied, as here, by notification to the representative body in the way specified, in this instance, by Determination No. 1 of 1996, in particular, sub-paras (a) to (e) of para 3 thereof, requiring descriptions of the land and the act, timing and an indication of disturbance. But these descriptions and indications were covered by the Notice. In my opinion, the Notice complied with these requirements of para 3.

It will have been noted that para 3 is silent on the right or duty to negotiate. But s 23(2) provides that the validity of the act is “subject to Subdivision B [which deals with the right to negotiate]...”. Yet, in its terms, s 26(2)(d) [in Subdivision B] can apply only where the purpose of the acquisition is to confer rights or interests in relation to the land or waters concerned “on persons other than the Government party”. The object of s 26(2)(d) was stated in the Explanatory Memorandum (Part A, p 19) as -

“the compulsory acquisition of native title not for a direct public purpose of, say building a school, road, hospital, but for the purpose of granting the land to a third party, such as a property developer;”

Accordingly, Subdivision B did not, in my view, apply here.

In my opinion, the subject acquisition was made by the Council as a State instrumentality for the appropriate local governmental public purpose of road and bridge construction (see Deputy Commissioner of Taxation v State Bank (NSW) (1992) 174 CLR 219 at 230-1; Stack v Brisbane City Council (1995) 59 FCR 71 at 84, 88). It thus fell squarely within the description of “a direct public purpose” given in the Explanatory Memorandum. The resumption proposed did not confer rights or interests on persons other than the Government party (the State of Queensland and its instrumentalities). Significantly, the decision-maker here was the Governor in Council. This was a State acquisition. It thus fell outside s 26(2)(d).

Did s 79 apply to the Notice? It is true that s 79 of the NTA is picked up by s 151 of the NT(Q)A. But s 79 is not part of either Subdivision A or B of Division 3 of Part 2; rather it is located in Division 3 of Part 3, which Division deals with “miscellaneous” matters. It will be recalled that s 79 provides that if, during negotiations, a person who may be entitled to compensation, requests non-monetary compensation, the other party must consider the request, and must negotiate in good faith in relation to it. But there is no provision, as is found in Part 2, that if this procedure is not followed, other acts will be invalid. In any event, there is no requirement in s 79 of the NTA (or s 151 NT(Q)A) that non-monetary compensation be dealt with in the Notice in any particular way.

Yet the question remains whether s 79 applied here otherwise, that is, beyond the Notice. In the present case, although pressed to do so by the CLCAC on several occasions, the Council refused to address the possibility of any negotiations on the matter generally. The Council’s attitude, which was supported by State Government legal advice, must be viewed as a constructive, if not actual, failure at the threshold to comply with the requirements of s79 (or s 151). But, as has been said, the native title legislation does not provide, at least explicitly, for invalidity in the event of failure to comply with s 79. Applying the principles laid down in Project Blue Sky, I am of the opinion that, on its true construction, such legislation did not intend that failure to comply with s 79 (or s 151) would carry with it the draconian consequence of invalidity of formal administrative acts, in this case the Notice and the implementation of the resumption by the Proclamation. But whilst it is inappropriate to make a declaration of invalidity, it may be appropriate to grant injunctive relief to restrain future unlawful conduct. I will come to this next.

APPROPRIATE RELIEF
I now turn to the question of the relief that ought to be granted in the light of my findings: (1) that, in contravention of s 7(3)(f) of the ALA, no statement was made by the Council in the Notice that the Council “is willing to negotiate to acquire by agreement, or failing agreement, to treat as to the compensation to be paid and all consequential matters”; and (2) that, contrary to s 79 of the NTA as picked up by s 151 of the NT(Q)A, the Council has indicated its refusal to negotiate on any aspect of the matter, including constructively any request for non-monetary compensation.

A number of possible forms of relief might be suggested, accepting for present purposes that this is an application for final, not interim relief (see, e.g. Levis v McDonald (1997) 75 FCR 36 at 43; I C F Spry, The Principles of Equitable Remedies, 5^th ed. 1997 at 382).

One is that the Court makes a mandatory order for negotiation.  In my view, it is not appropriate that, by formal order, the Court compel a presently unwilling party to negotiate (see Kilthistle No. 6 Pty Ltd v Austwide Homes Pty Ltd, Lehane J, 10 December 1997, unreported at 6).

Another is that the Court gives the Council the option, if so advised, to undertake to the Court to negotiate with the CLCAC upon the footing that if the undertaking is given, so much of the application as is now alive is then dismissed;  but that, if the undertaking be not given, a final injunction will run to prevent the Council and Pasminco from carrying out the road and bridge works.  In my opinion, this is the appropriate relief to be granted here on the two findings of unlawful conduct I have made.  It seeks to achieve a fair outcome in the circumstances by putting the Council to its election:  either (if so advised) the Council gives the undertaking to the Court (and as such an undertaking is enforceable as if it were a Court order, if and when the undertaking is given) or, if not given, the Council is enjoined from giving effect to the resumption.  If the undertaking is given, the whole proceedings will stand dismissed.

It should be emphasised that the election required by the Council by the order I propose to make is the giving of the undertaking. This is the condition of dismissal of the entire proceeding. Whether, if given, the undertaking has been fulfilled would be another question (see, e.g. (1998) 72 ALJ 285 (note by Justice P W Young)) which, hopefully, would not arise for subsequent adjudication.

For completeness, and in the event that the Council elects to give the undertaking, the following provisions of the ALA should be noticed as they will become material. By s 15, provision is made for the taking of any land by agreement. Section 11 enables the amendment of a proclamation in achieving the correction of errors, in form or in substance, in the taking. Section 17 provides for the revocation of a proclamation, if it is found that the land or any part thereof is not required for the purpose for which it was taken. Further, as has been seen, by s 21 of the NTA, the holders of native title interests may agree to surrender them to a State.

Apart from the two findings of unlawful conduct, the claims made otherwise on behalf of the applicants have failed.  It must follow that, to this extent, the application should be dismissed, whether or not the undertaking is given.

OTHER CLAIMS PLEADED
For completeness, it should be noted that I have dealt with the principal arguments advanced at the hearing on behalf of the applicants.  Other claims were pleaded, really by way of elaboration of the applicants’ contention, or, if not, they were dependent upon the Court’s acceptance of the applicants’ main arguments.  I have not found it necessary to deal specifically with such arguments.  For instance, the applicants’ argument that the Proclamation was invalid ultimately depended substantially, if not entirely, upon acceptance of their submission that the Notice was invalid for the reasons previously mentioned.  Some other matters pleaded in the statement of claim were not pressed in argument, and I have not needed to address them.  To avoid any doubt, it should, however, be stated that I can see no basis for any suggestion of inconsistency between any of the Federal and State legislation in the present areas.  Nor, apart from the Council’s failure to address the negotiation aspect, did the Council deny procedural fairness to the CLCAC as the body representing the relevant interests.  In particular, the CLCAC was made well aware of its right to object;  and having the benefit of expert legal advice, the CLCAC fully utilised this right.

COSTS
I propose to reserve costs.  Since each side has had some success and some failure, my tentative view is that there should be no order for costs.  I will reserve liberty to apply in this connection.

ORDERS

I will make the following orders:

1. That unless, on or before 24 June 1998, the Council shall, if so advised, file and serve a written undertaking to the Court that it will negotiate in good faith with the CLCAC with respect to - (a) the taking of the native title rights and interests the subject of the Proclamation dated 22 January 1998; (b) all consequential matters, including compensation;  and (c) any request for non-monetary compensation - order that the Council and Pasminco, by themselves, their servants and agents, be restrained from giving effect to the purposes of the said taking, and in particular from carrying out the road and bridge works described in the Notice of intended resumption given by the Council to the CLCAC dated 8 September 1997.

1. That the application otherwise be dismissed.

1. Reserve liberty to any party, if so advised, to apply for any costs upon filing and serving within 21 days a written submission applying for such costs.

I certify that this and the preceding thirty nine (39) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont

Associate:

Dated:             3 June 1998

Counsel for the Applicant:	J Basten QC
Solicitor for the Applicant:	Andrew Chalk Associates
Counsel for the First Respondent:	P Keane QC with G Koppenol and D Mullins
Solicitor for the First Respondent:	Crown Law
Counsel for the Second Respondent:	B O’Donnell QC
Solicitor for the Second Respondent:	Allen Allen & Hemsley
Counsel for the Third Respondent:	P McMurdo QC with J Bond
Solicitor for the Third Respondent:	Blake Dawson Waldron
Date of Hearing:	20, 21 and 22 May 1998
Date of Judgment:	3 June 1998