Ellis v Central Land Council
[2018] FCA 35
•2 February 2018
FEDERAL COURT OF AUSTRALIA
Ellis v Central Land Council [2018] FCA 35
File number: NTD 60 of 2016 Judge: MORTIMER J Date of judgment: 2 February 2018 Catchwords: ADMINISTRATIVE LAW – judicial review – statutory interpretation of Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) – whether Central Land Council satisfied that consent of traditional Aboriginal owners given – whether procedural fairness denied – whether legally unreasonable – whether breach of statutory requirement concerning use of seal rendered act invalid – consideration of meaning of “grant” – application allowed in part Legislation: Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), ss 3, 4, 5, 7, 10, 11, 12, 13, 14, 19, 19A, 20, 20B, 21, 22, 23, 27, 28, 29, 29A, 40, 45, 71, 77A
Aboriginal Land Rights (Northern Territory) Amendment Act 1987 (Cth)
Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 4, 5, 6
Corporations Act 2001 (Cth), s 127
Evidence Act 1995 (Cth), s 135
Fisheries Administration Act 1991 (Cth), s 10
Judiciary Act 1903 (Cth), s 39B
Northern Territory National Emergency Response Act 2007 (Cth)
Associations Incorporation Ordinance 1963 (NT)
Housing Act (NT)
Land Title Act (NT)
Local Government Act (NT)
Cases cited: Alderson v Northern Land Council (1983) 20 NTR 1
Barrett v Minister for Immigration (1989) 18 ALD 129
Buchwald v Minister for Immigration and Border Protection [2016] FCA 101; 242 FCR 65
BVW17 v Minister for Immigration and Border Protection [2017] FCA 1508
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107
Clayton v Heffron [1960] HCA 92; 105 CLR 214
Commissioner of Taxation v Futuris Corporation Limited [2008] HCA 32; 237 CLR 146
Coulthard v South Australia [2014] FCA 101; 218 FCR 148
Gibson v Minister for Finance, Natural Resources and the Arts [2012] QSC 132; 192 LGERA 118
Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2014] FCA 25; 220 FCR 202
Hayes v Northern Territory [1999] FCA 1248; 97 FCR 32
Jeffs v New Zealand Dairy Production and Marketing Board [1967] 1 AC 551
Johnson’s Tyne Foundry Pty Ltd v President, Ratepayers and Councillors of the Shire of Maffra [1948] HCA 46; 77 CLR 544
Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 14
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431
Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332
Montreal Street Railway Co v Normandin [1917] AC 170
Myoung v Northern Land Council [2006] FCA 1130; 154 FCR 324
MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478
Northern Territory of Australia v Arnhem Land Aboriginal Land Trust [2008] HCA 29; 236 CLR 24
Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; 254 CLR 28
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; 211 CLR 476
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; 144 CLR 13
R v Toohey, Ex parte Meneling Station Pty Ltd [1982] HCA 69; 158 CLR 327
R v Turner (No 9) [2001] TASSC 97; 162 FLR 290
Repatriation Commission v Strickland (1990) 12 AAR 343
Rirratjingu Aboriginal Corporation v Northern Land Council [2015] FCA 36
Ryan v Islington London Borough Council [2009] EWCA Civ 578
Szelagowicz v Stocker (1994) 54 IR 302
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 347 ALR 405
Victoria Park Golf Club Inc v Brisbane City Council [2001] QCA 528
Videto v Minister for Immigration and Ethnic Affairs [1985] FCA 449; 8 FCR 167
Wurridjal v Commonwealth [2009] HCA 2; 237 CLR 309
Date of hearing: 26-30 June 2017 Registry: Northern Territory Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 480 Counsel for the Applicants: Mr N Wood with Mr J Hartley Solicitor for the Applicants: Midena Lawyers Counsel for the First and Fifth Respondents: Mr S Glacken QC with Mr C Young Solicitor for the First and Fifth Respondents: Central Land Council Counsel for the Second and Sixth Respondents: Mr R Levy with Mr J Ingrames Solicitor for the Second and Sixth Respondents: Solicitor for the Northern Territory Solicitor for the Third Respondent: Mr J Stirk of Povey Stirk Lawyers Solicitor for the Fourth Respondent: The Fourth Respondent did not appear ORDERS
NTD 60 of 2016 BETWEEN: MARIE ELENA ELLIS
First Applicant
ROSEANNE PHILOMENA ELLIS
Second Applicant
IMWERNKWERNHE COMMUNITY LIMITED (ACN 161 185 100)
Third Applicant
AND: CENTRAL LAND COUNCIL
First Respondent
NORTHERN TERRITORY OF AUSTRALIA
Second Respondent
MACDONNELL REGIONAL COUNCIL (and others named in the Schedule)
Third Respondent
JUDGE:
MORTIMER J
DATE OF ORDER:
2 FEBRUARY 2018
THE COURT ORDERS THAT:
1.The parties are to confer and file, on or before 4 pm on 16 February 2018 joint proposed minutes of orders reflecting the Court’s reasons for judgment.
2.In the absence of any agreement as to appropriate orders and relief, on or before 4 pm on 2 March 2018, the parties are to file written submissions, limited to five pages, supporting the orders for which they contend and attaching copies of their respective proposed orders.
THE COURT DIRECTS THAT:
3.If the parties agree on appropriate orders for costs, and (if applicable) on any lump sum figures for costs, they are to file a joint minute of proposed orders on or before 4 pm on 16 February 2018.
4.In the absence of any joint proposed costs orders, on or before 4 pm on 2 March 2018, the parties are to file and serve submissions, limited to five pages, on appropriate orders for costs, including whether any costs orders should be made by way of a lump sum and if so, how that lump sum should be determined.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MORTIMER J:
INTRODUCTION
[1]
The role of the CLC in this proceeding
[8]
Relevant Statutory Provisions
[15]
The framework and objectives of the Land Rights Act
[15]
The Land Rights Act provisions
[16]
Judicial review provisions
[32]
The leases, the key entities and the general sequence of events
[37]
The current status of the leases and licence
[38]
The evidence
[45]
Amoonguna
[51]
ICL
[57]
The way leases have been organised in remote Aboriginal communities
[65]
The relevance of the Northern Territory Intervention to the issues in this case
[71]
The role and structure of the CLC
[78]
The CLC Committee
[79]
The AALT
[87]
The general sequence of events
[94]
The grounds of review and the competing arguments
[163]
Ground 1: CLC’s satisfaction of consent of traditional owners
[164]
Ground 2: lack of evidence to form satisfaction of consent of traditional owners
[173]
Ground 3: denial of procedural fairness
[177]
Ground 4: non-provision of the actual leases
[182]
Ground 5: failure to consider the identity of the traditional owners and their decision-making processes
[185]
Ground 6: brief to Mr Bagshaw
[188]
The CLC’s reliance on s 19(6) of the Land Rights Act
[196]
The challenge to the grant of the leases by the AALT
[199]
The seal contention
[203]
The contention that there has been no grant
[209]
The Northern Territory position in summary
[212]
RESOLUTION
[220]
Preliminary matters
[220]
The Land Rights Act’s objectives and scheme
[220]
Statutory construction
[234]
Fact finding
[240]
Fact finding on the applicants’ challenge to the CLC Committee decision
[240]
Arrernte traditional ownership, the Amoonguna community and decision-making
[242]
An observation about the process
[262]
What occurred at the Chifley Hotel meeting
[263]
The relevance of the witness evidence from traditional owners
[276]
Mr Gosford’s role
[291]
The application of s 77A of the Land Rights Act
[299]
What the CLC Committee was given, and what it was told
[307]
Fact finding on the seal affixing argument
[329]
The applicants’ challenge to the CLC Committee decision (Grounds 1-6)
[333]
Formation of the satisfaction required by s 19(5): Grounds 1 and 2
[333]
Procedural fairness: Grounds 3 and 4
[374]
Ground 3
[376]
Ground 4
[382]
Failure to consider relevant material: Ground 5
[396]
Legal unreasonableness: Ground 6
[407]
Conclusion on the six grounds of judicial review
[421]
The applicants’ challenge to the grant of the leases
[423]
The applicants’ challenge to the affixing of the seal
[425]
The operation and effect of s 19(6) on the grants and the CLC Committee decision
[476]
Appropriate relief
[479]
INTRODUCTION
This proceeding concerns the grant, in October 2016, of four leases and a licence over Aboriginal land as that term is defined in s 3 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (Land Rights Act). The first and second applicants (Ms Marie Elena Ellis and Ms Roseanne Philomena Ellis respectively) live in the community of Amoonguna in the Northern Territory and are part of that community’s traditional landholding group under the Land Rights Act. The third applicant (the Imwernkwernhe Community Limited or “ICL”) is a body corporate established by a number of traditional owners from the Amoonguna community. The first and fifth respondents, the Central Land Council (CLC) and the Amoonguna Aboriginal Land Trust (AALT) respectively, are the entities whose decisions and conduct is impugned in the proceeding. The second, third, fourth and sixth respondents (the Northern Territory, MacDonnell Regional Council, Central Australian Aboriginal Congress Aboriginal Corporation and Indigenous Essential Services Pty Ltd (IES) respectively) are the lessees/licensee of the leases and licence granted by the AALT, at the discretion of the CLC.
The originating application also named three individual members of the CLC as respondents, however at the commencement of the trial, the proceeding was discontinued as against those respondents.
The phrase “Amoonguna community” is a defined phrase in the applicants’ pleadings. The definition essentially limits the phrase to the way it is used in the Land Rights Act (traditional owners of the land and other Aboriginal people with an interest in the land). In these reasons, I use the phrase more colloquially to include those two groups, but also to include all those people who may be living in the community of Amoonguna.
On 16 November 2016, the applicants commenced this proceeding seeking relief with respect to two matters. Those matters are:
(1)A direction given by the CLC under the Land Rights Act to the AALT to grant leases and a licence over various parcels of land within the Amoonguna community to the Northern Territory, the Council, Congress and the IES; and
(2)The grant of those leases by the Land Trust to each of the Northern Territory, the Council, Congress and the IES.
Two events which assume significance in the factual narrative are first, a meeting on 12 October 2016 of traditional owners and other Aboriginal people, along with the CLC and other Amoonguna residents with interests in the Amoonguna lands; and second, a meeting on 19 October 2016 of the CLC Committee delegated to make the decision about whether or not to give a direction to the AALT to grant the impugned leases and licence.
The issues raised by the applicants’ claims have considerable legal and factual complexity. However, not all of those complex issues need to be finally determined, given the view I have taken of the CLC’s decision-making and the construction and operation of the Land Rights Act.
For the reasons that follow, I consider the applicants are entitled to relief only in one respect, relating to the execution of the leases and licence. I have formed some preliminary views about the kind of relief that is appropriate and have set those views out in these reasons. The parties will be given an opportunity to make submissions about the appropriate form of relief. The application is otherwise to be dismissed.
The role of the CLC in this proceeding
There was some debate between the applicants and the CLC about the latter’s role in this proceeding. The Northern Territory and IES took an active role as a contradictor for the two leases in which they had an interest. Congress and the Council elected not to do the same, and appeared to have relied on the CLC, the Northern Territory and IES to be the active contradictors. Council and Congress played no active part in the proceeding. The Council appeared briefly at the hearing and informed the Court it adopted the submissions made on behalf of the CLC and the Northern Territory, while Congress did not appear at the hearing and informed chambers that it “has appeared only as an observer to date and will abide the result of these proceedings”. Although the Northern Territory played an active role, it also often adopted the submissions made by the CLC. There were some points of difference, and the Northern Territory made at least one important additional submission, about the operation of s 14 of the Land Rights Act.
The CLC however, was the decision-maker. Its role in a judicial review would usually accord with the principles set out in R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; 144 CLR 13.
That is certainly how a Land Council’s role in other judicial review proceedings has been viewed. In Myoung v Northern Land Council [2006] FCA 1130; 154 FCR 324 at [14], Mansfield J said:
The NLC took the view that it should not play an active role in these proceedings except in one respect, because there is a proponent and an opponent to the claims made. That was a proper approach: R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 33-35. It made submissions concerning its powers and the proper construction of the ALRA. It took that position because there was no intervention by the Attorney-General or other public officer to inform the Court on those issues, beyond the particular interests of the parties. In my view, the NLC acted consistently with the decision in Hardiman in adopting that role: see, eg TXU Electricity Ltd v Offıce of the Regulator-General (2001) 3 VR 93 at [44].
Ultimately, the applicants did not press for the CLC to be restrained, formally or informally, from adopting the role it clearly wished to play. Its submissions were of assistance to the Court, however it conducted the proceeding in a truly adversarial way – making a large number of objections to evidence, including to oral evidence, objecting to the course the applicants sought to adopt, and filing a lengthy notice to admit rather than agreeing facts as the Court had invited the parties to do.
The Northern Territory made brief written submissions to the effect that the CLC was the appropriate contradictor, because of its greater level of knowledge of the course of events, which none of the lessees possessed. That submission is factually correct, but it does not address the principles which lie behind the Hardiman approach.
Despite the CLC’s role as the decision-maker and its protective functions under s 23 in the respect of traditional Aboriginal owners, the CLC cross-examined traditional Aboriginal owners in defence of its own decision-making. The decision whether to assume a role as an active and adversarial contradictor in a proceeding such as this should be the subject, in the future, of careful consideration by a Land Council. The Court also bears some responsibility for not having taken a more active role early in this proceeding to ascertain whether the CLC should have been held to a position closer to Hardiman than the one it wished to adopt.
Accordingly, I have adopted the approach of referring to submissions made on behalf of the CLC, although that should be understood as submissions adopted by the Council and the Northern Territory, unless the Northern Territory indicated particular disagreement with a CLC submission. I also note here that the CLC and AALT were jointly represented by the same counsel and made joint submissions – where I refer to the CLC’s submissions, that includes the AALT’s position. Likewise, the Northern Territory and IES were jointly represented by the same counsel and also made joint submissions. Where I refer to the Northern Territory’s submissions, that includes the IES’ position.
RELEVANT STATUTORY PROVISIONS
The framework and objectives of the Land Rights Act
I deal with the objectives of the Land Rights Act, and what has been said about its operation, at [223] to [236] below. In this part of my reasons, I simply set out the relevant statutory provisions from that Act, and from the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act).
The Land Rights Act provisions
The Land Rights Act establishes a process through which Aboriginal people in the Northern Territory can secure rights of a proprietary kind in the land over which they have “affiliations” in accordance with traditional law and custom. The statutory vehicle through which proprietary rights are held is a Land Trust. The process of making grants of Aboriginal land under the Land Rights Act is not relevant to this proceeding but its core aspects are found in ss 5, 10, 11 and 12 of the Land Rights Act, together with specific provisions for particular lands and communities. The process is concerned with the identification of who are the “traditional Aboriginal owners” (as defined in s 3(1)) for the land, and whether other Aboriginal people have interests in the area which should be recognised, or affect a grant to the traditional owners. The Amoonguna community has held land as a result of this process since 1978, through the AALT.
The current version of the Land Rights Act is the same version as that in force on 19 October 2016, the date of the CLC’s impugned decisions. The provisions I set out here are taken from this version.
Section 4 of the Land Rights Act provides for the establishment of Aboriginal Land Trusts. The fifth respondent, the AALT, was established under this provision. Those parts of s 4 which relate to the use of the seal of the AALT assume some importance in this proceeding. Section 4 relevantly provides:
4 Land Trusts
(1)The Minister may, by notice published in the Gazette, establish Aboriginal Land Trusts to hold title to land in the Northern Territory for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of the land concerned, whether or not the traditional entitlement is qualified as to place, time, circumstance, purpose or permission, and, subject to subsections 10(1) and (2), shall so establish Land Trusts to hold the land described in Schedule 1.
…
(1AB)To avoid doubt, the Minister may establish a Land Trust under subsection (1) for the purpose of it holding land that is to be transferred to it under subsection 19(4).
…
Legal status of Land Trust
(3)A Land Trust:
(a) is a body corporate, with perpetual succession;
(b) shall have a common seal;
(c)subject to this Part, may acquire, hold and dispose of real and personal property; and
(d) may sue and be sued in its corporate name.
Common seal of Land Trust
(4)The common seal of a Land Trust shall be kept by a member of the staff of the Land Council in the area of which the Land Trust holds land who has been authorized by the Land Council for the purpose.
(5)The common seal of a Land Trust is to be affixed to a document only with a written authority signed by:
(a)if the Trust consists of 4 or more members—at least 3 of those members; or
(b) if the Trust consists of 3 members—at least 2 of those members.
Note: Section 7 deals with the membership of a Land Trust.
(6)All courts, judges and persons acting judicially shall take notice of the common seal of a Land Trust affixed to a document and shall presume that it was duly affixed.
Notices are not legislative instruments
(7) A notice under subsection (1), (1AC) or (2B) is not a legislative instrument.
The function of Land Trusts and the limitations on the way their functions must be performed are set out in s 5:
5 Functions of Land Trusts
(1) The functions of a Land Trust are:
(a) to hold title to land vested in it in accordance with this Act;
(b)to exercise its powers as owner of land referred to in paragraph (a) for the benefit of the Aboriginals concerned; and
(c)where the Land Trust is named as the grantee of land in a deed of grant held in escrow by a Land Council—to acquire, as and when practicable, the estates and interests of other persons in the land with a view to the surrender to the Crown of those estates and interests and the delivery to the Land Trust of the deed of grant held by the Land Council.
(2) A Land Trust:
(a)shall not exercise its functions in relation to land held by it except in accordance with a direction given to it by the Land Council for the area in which land is situated; and
(b)where such a direction is given to it—shall take action in accordance with that direction.
(3)The Lands Acquisition Act 1989 does not apply to the acquisition by a Land Trust, under this Act, of an estate or interest in land.
Separately, Land Councils are established under s 21 of the Land Rights Act. Section 22 provides that these Councils are bodies corporate:
22 Land Council to be body corporate etc.
(1) A Land Council:
(a) is a body corporate, with perpetual succession;
(b) shall have a common seal;
(c) may acquire, hold and dispose of real and personal property; and
(d) may sue and be sued in its corporate name.
Note: The Public Governance, Performance and Accountability Act 2013 applies to a Land Council. That Act deals with matters relating to corporate Commonwealth entities, including reporting and the use and management of public resources.
(2)All courts, judges and persons acting judicially shall take notice of the common seal of a Land Council affixed to a document and shall presume that it was duly affixed.
The functions of Land Councils are set out in s 23. In particular, this provision makes clear that Land Councils are to consult with traditional Aboriginal owners and communities in respect of Aboriginal land, and in some circumstances to act only after the consent of traditional owners, as a group, has been given (see s 23(3)).
23 Functions of Land Council
(1) The functions of a Land Council are:
(a)to ascertain and express the wishes and the opinion of Aboriginals living in the area of the Land Council as to the management of Aboriginal land in that area and as to appropriate legislation concerning that land; and
(b)to protect the interests of traditional Aboriginal owners of, and other Aboriginals interested in, Aboriginal land in the area of the Land Council; and
(ba)to assist Aboriginals in the taking of measures likely to assist in the protection of sacred sites on land (whether or not Aboriginal land) in the area of the Land Council; and
(c)to consult with traditional Aboriginal owners of, and other Aboriginals interested in, Aboriginal land in the area of the Land Council with respect to any proposal relating to the use of that land; and
(d)where the Land Council holds in escrow a deed of grant of land made to a Land Trust under section 12:
(i)to negotiate with persons having estates or interests in that land with a view to the acquisition of those estates or interests by the Land Trust; and
(ii)until those estates or interests have been so acquired, to negotiate with those persons with a view to the use by Aboriginals of the land in such manner as may be agreed between the Land Council and those persons; and
(e)to negotiate with persons desiring to obtain an estate or interest in land in the area of the Land Council:
(i)where the land is held by a Land Trust—on behalf of traditional Aboriginal owners (if any) of that land and of any other Aboriginals interested in the land; and
(ii)where the land is the subject of an application referred to in paragraph 50(1)(a)—on behalf of the traditional Aboriginal owners of that land or on behalf of any other Aboriginals interested in the land; and
(ea)to assist Aboriginals in the area of the Land Council to carry out commercial activities (including resource development, the provision of tourist facilities and agricultural activities), in any manner that will not cause the Land Council to incur financial liability or enable it to receive financial benefit; and
(eb)for land that is a community living area and in the area of the Land Council—to assist the owner of the land, if requested to do so, in relation to any dealings in the land (including assistance in negotiating leases of, or other grants of interests in, the land); and
(f)to assist Aboriginals claiming to have a traditional land claim to an area of land within the area of the Land Council in pursuing the claim, in particular, by arranging for legal assistance for them at the expense of the Land Council; and
(fa)to negotiate, and enter into agreements, as necessary, for the purposes of subsection 70(4); and
(g) to compile and keep:
(i)a register recording the names of the members of the Land Council; and
(ii)a register recording the names of the members of the Land Trusts holding, or established to hold, Aboriginal land in its area and descriptions of each area of such Aboriginal land; and
(h)to supervise, and provide administrative or other assistance for, Land Trusts holding, or established to hold, Aboriginal land in its area; and
(i) such other functions as are prescribed by the regulations.
(2)A Land Council may, with the approval of the Minister, perform any functions that may be conferred on it by a law of the Northern Territory, including, without limiting the foregoing, functions in relation to:
(a) the protection of sacred sites;
(b) access to Aboriginal land; and
(c) schemes for the management of wildlife on Aboriginal land.
(3)In carrying out its functions with respect to any Aboriginal land in its area, a Land Council shall have regard to the interests of, and shall consult with, the traditional Aboriginal owners (if any) of the land and any other Aboriginals interested in the land and, in particular, shall not take any action, including, but not limited to, the giving of consent or the withholding of consent, in any matter in connexion with land held by a Land Trust, unless the Land Council is satisfied that:
(a)the traditional Aboriginal owners (if any) of that land understand the nature and purpose of the proposed action and, as a group, consent to it; and
(b)any Aboriginal community or group that may be affected by the proposed action has been consulted and has had adequate opportunity to express its view to the Land Council.
(4)The reference in paragraph (1)(e) to an estate or interest in land includes a reference to a licence in respect of that land.
The term “traditional Aboriginal owners” is defined in s 3(1) of the Land Rights Act to mean:
traditional Aboriginal owners, in relation to land, means a local descent group of Aboriginals who:
(a)have common spiritual affiliations to a site on the land, being affiliations that place the group under a primary spiritual responsibility for that site and for the land; and
(b) are entitled by Aboriginal tradition to forage as of right over that land.
The powers of Land Councils are set out in s 27:
27 Powers of Land Council
(1)Subject to this Act, a Land Council may do all things necessary or convenient to be done for or in connexion with the performance of its functions and, without limiting the generality of the foregoing, may:
(a) employ staff;
(b)obtain the advice and assistance of persons who are expert in any matter with which the Council is concerned (including assistance in connection with the administration of the affairs of the Council);
(c)give lawful directions to Land Trusts holding land in its area concerning the performance of their functions; and
(d)receive moneys due and owing to Land Trusts holding, or established to hold, land in its area and give a valid discharge for those moneys.
(1A)A Land Council may, on the request of an Aboriginal and Torres Strait Islander corporation that has received an amount of money from the Council under this Act, provide administrative or other assistance to the corporation.
(2)Where a Land Council employs a person as a staff member, the terms and conditions of the person’s employment are such as are from time to time determined by the Land Council.
(2A)Where a Land Council obtains the advice and assistance of a person under paragraph (1)(b), the terms and conditions of the engagement of that person are such as are approved by the Land Council.
(3)A Land Council shall not, without the approval of the Minister, enter into, or permit a Land Trust holding land in its area to enter into, a contract involving the payment or receipt of an amount exceeding $1,000,000, or, if a higher amount is prescribed, that higher amount.
(4)The Minister shall not give an approval under subsection (3) with respect to entering into a contract relating to Aboriginal land unless the Minister is satisfied that the Land Council concerned has, in taking the action that has resulted in the proposed contract, complied with any duty imposed on it by subsection 23(3).
Land Councils may appoint a committee of its members to assist the Council with the performance of its functions or the exercise of its powers, in accordance with s 29A:
29A Committees
(1)A Land Council may, by notice in writing, appoint a committee or committees of its members to assist the Council in relation to the performance of any of its functions or the exercise of any of its powers.
Content of notice
(2) The notice must specify:
(a) the name of each committee member; and
(b)if the committee is appointed in relation to a particular area of the Land Council—that area.
Number of committee members
(3)A committee must consist of at least 7 members or such other number as is prescribed by the regulations.
Rules for conduct of meetings
(4)The Land Council must make written rules providing for and in relation to the convening of meetings, and the procedure for the conduct of meetings, of a committee appointed under this section. The rules are not a legislative instrument.
(5)The Land Council must give a copy of the rules made under subsection (4) to the Minister.
Minutes
(6) A committee must keep minutes of its meetings.
Inspection
(7) The Land Council must allow:
(a)the traditional Aboriginal owners of Aboriginal land in the area of the Council; or
(b) any Aboriginal living in the area of the Council;
to inspect, at any reasonable time without charge:
(c) rules made under subsection (4); or
(d)the minutes of committee meetings (other than any part of the minutes that relates to an excludable matter).
Land Councils may delegate their functions and powers to a committee in accordance with s 28(2):
Delegation to Council committee
(2)A Land Council may, in writing under its common seal, delegate to a committee appointed under section 29A any of the Council’s functions or powers under this Act other than the following:
(aa) the making of a request under section 21E;
(a) the making of determinations under section 35;
(b) any function or power prescribed by the regulations.
In relation to dealings with land occupied by the Crown, s 14 provides particular entitlements to the Crown:
14 Occupation etc. by the Crown etc. of Aboriginal land vested in Land Trust
(1)Where, on the vesting in a Land Trust of an estate in fee simple in land, the land is being occupied or used by the Crown or, with the licence or permission of the Crown, by an Authority, the Crown or the Authority is entitled to continue that occupation or use for such period as the land is required by the Crown or the Authority.
(2)During the period for which, by virtue of subsection (1), the Crown or an Authority is entitled to the occupation or use of land, any buildings and improvements on that land shall be deemed to be the property of the Crown or the Authority.
(3)Nothing in this section prevents the granting by a Land Trust of a lease of land referred to in subsection (1) to the Commonwealth, the Northern Territory or an Authority, as the case may be, and, if such a lease is granted, the land ceases to be land to which this section applies.
(3A)Nothing in this section prevents a Land Trust granting a lease of land to an approved entity under section 19A that includes land referred to in subsection (1) of this section.
(3B) If land (the applicable land):
(a) is of a kind referred to in subsection (1); and
(b) is part of land that is leased to an approved entity under section 19A;
nothing in this section prevents the approved entity granting a sublease of the applicable land to the Commonwealth, the Northern Territory or an Authority, as the case may be.
(3C)If such a sublease is granted, the applicable land ceases to be land to which this section applies.
(4)This section does not apply in relation to an occupation or use of land that is authorized by the Atomic Energy Act 1953 or any other Act authorizing mining for minerals and this section does not prejudice the operation of the Atomic Energy Act 1953 or that other Act, as the case may be.
Within this context of the functions of the Land Trusts and Land Councils, the requirements to consult with traditional Aboriginal owners and the occupation of land by the Crown, s 19 of the Land Rights Act provides for the dealings and disposals of interests in land by Land Trusts. It commences with a prohibition about dealing with Aboriginal land and then sets out the circumstance in which that prohibition does not apply. Section 19 relevantly states:
19 Dealings etc. with interests in land by Land Trusts
(1)Except as provided by this section or section 19A or 20, a Land Trust must not deal with or dispose of, or agree to deal with or dispose of:
(a) any estate or interest in land vested in it; or
(b)the land described under the heading “JABIRU” in Part 4 of Schedule 1.
…
(2)With the consent, in writing, of the Minister, and at the direction, in writing, of the relevant Land Council, a Land Trust may, subject to subsection (7), grant an estate or interest in land vested in it to an Aboriginal or an Aboriginal and Torres Strait Islander corporation:
(a) for use for residential purposes by:
(i) the Aboriginal and his or her family; or
(ii)an employee of the Aboriginal or the corporation, as the case may be;
(b)for use in the conduct of a business by the Aboriginal or the corporation, not being a business in which a person who is not an Aboriginal has an interest that entitles him or her to a share in, or to a payment that varies in accordance with, the profits of the business; or
(c)for any community purpose of the Aboriginal community or group for whose benefit the Land Trust holds the land.
(3)With the consent, in writing, of the Minister, and at the direction, in writing, of the relevant Land Council, a Land Trust may, subject to subsection (7), grant an estate or interest in land vested in it to the Commonwealth, the Northern Territory or an Authority for any public purpose or to a mission for any mission purpose.
(3A)If a Land Trust is considering granting a lease under subsection (3), the relevant Land Council may, by notice in writing given to the Minister, request that, if the Land Trust and the Commonwealth intend to enter into the lease, the Executive Director:
(a) enter into the lease on behalf of the Commonwealth; and
(b) administer the lease.
(3B)If the Minister receives a request under subsection (3A), the Minister must, by notice in writing given to the relevant Land Council, agree or refuse to agree to the request.
(3C) A notice given under subsection (3A) or (3B) is not a legislative instrument.
…
(4)With the consent, in writing, of the Minister and at the direction, in writing, of the relevant Land Council, a Land Trust may:
(b)transfer to another Land Trust, or surrender to the Crown, the whole of its estate or interest in the whole, or any part of, the land vested in it.
Note:See also section 20A (which deals with the application of the law of the Northern Territory relating to the transfer of land).
(4AA)Any right, title or other interest in land transferred under subsection (4) that existed immediately before the transfer is preserved as a right, title or interest in that land after the transfer.
(4AB)Any agreement in respect of land transferred under subsection (4) that was entered into by the transferor Land Trust and that is in force immediately before the transfer is taken to have the same force and effect, after the transfer, as the agreement would have had if it had been entered into by the transferee Land Trust.
(4A)With the consent, in writing, of the Minister, and at the direction, in writing, of the relevant Land Council, a Land Trust may, subject to subsection (7), grant an estate or interest in the whole, or any part, of the land vested in it to any person for any purpose.
(5)A Land Council shall not give a direction under this section for the grant, transfer or surrender of an estate or interest in land unless the Land Council is satisfied that:
(a)the traditional Aboriginal owners (if any) of that land understand the nature and purpose of the proposed grant, transfer or surrender and, as a group, consent to it;
(b)any Aboriginal community or group that may be affected by the proposed grant, transfer or surrender has been consulted and has had adequate opportunity to express its view to the Land Council; and
(c)in the case of a grant of an estate or interest—the terms and conditions on which the grant is to be made are reasonable.
(6)Where a Land Council, in giving a direction for a proposed grant, transfer or surrender of an estate or interest in land, fails to comply with subsection (5), that failure does not invalidate that grant, transfer or surrender unless the person to whom the grant, transfer or surrender was made procured the direction of the Land Council by fraud.
(7)The consent of the Minister is not required for the grant under subsection (2), (3) or (4A) of an estate or interest the term of which does not exceed 40 years.
(8)The grantee of an estate or interest under this section is not empowered to transfer his or her interest as such grantee to another person, or to grant to another person an interest dependent upon his or her interest as such grantee, except with the consent, in writing, of the relevant Land Council and, if the consent of the Minister was required to the grant of that estate or interest to the grantee, the consent, in writing, of the Minister.
(8A)A Land Council may give a consent under subsection (8) at the time it gives a direction under subsection (2), (3), (3F), (3H) or (4A) or at any later time.
(8B)The Minister may give a consent under subsection (8) at the time he or she gives a consent under subsection (2), (3), (3F), (3H) or (4A) or at any later time.
(8C)A consent of the Minister or a Land Council under subsection (8) relating to a transfer or grant may:
(a) be general; or
(b)be expressed to be limited to a specified person or a person included in a specified class.
(9)Where a grant of an estate or interest is invalidated, by virtue of subsection (6), on account of fraud, that invalidity does not affect the rights of a person who has, for value and without notice of the fraud, accepted the transfer of that estate or interest or been granted an interest dependent upon that estate or interest.
(9A)When the Minister is satisfied that a Land Council has refused, or is unwilling, to give a direction under subsection 11A(5) to a Land Trust to grant an estate or interest in land in accordance with an agreement entered into by the Land Council under subsection 11A(2), the Minister shall, in the name of, and on behalf of, that Land Council, give the Land Trust that direction.
(9B)Where the Minister is satisfied that a Land Trust has refused, or is unwilling, to comply with a direction given under subsection 11A(5), or subsection (9A) of this section, to grant an estate or interest in particular land on particular terms and conditions, the Minister shall, in the name of, and on behalf of, that Land Trust, grant that estate or interest in relation to that land on those terms and conditions.
(10)In this section, relevant Land Council, in relation to land, means the Land Council for the area in which the land is situated.
(11) A reference in this section to an estate or interest in land includes:
(a)a reference to a licence granted in respect of that land including, but without limiting the generality of the foregoing, a licence granted under a law of the Northern Territory relating to the mining or development of extractive mineral deposits; or
(b)a reference to a lease or other interest in that land, or a right granted in respect of that land, under such a law.
(12)The preceding provisions of this section do not authorise the grant by a Land Trust of the fee simple in land vested in it except in the circumstances referred to in paragraph (4)(b).
(13)If a Land Trust grants an estate or interest in Aboriginal land under this section, then, at the direction, in writing, of the relevant Land Council, the Land Trust may, in writing, authorise a specified person, or any person included in a specified class of persons, to enter or remain on the land for a specified purpose that is related to that estate or interest.
Note:Section 70 will not apply to a person who enters or remains on the land in accordance with such an authorisation: see subsection 70(2B).
(14)A direction or an authorisation under subsection (13) is not a legislative instrument.
“Grant” is defined in s 3(1):
grant, in relation to an interest in land (including any interest referred to in a paragraph of subsection (2) of this section), includes the doing of any action by reason of which the interest arises.
In relation to the phrase “estate or interest in land”, subsection 3(2) states:
(2) Unless the contrary intention appears, a reference in this Act to an estate or interest in land includes a reference to an interest by way of a right against the Crown to a grant of an estate or interest in land, but does not include a reference to:
(a) a mining interest;
(b) an interest arising out of the operation of the Atomic Energy Act 1953 or any other Act authorizing mining for minerals;
(ba)a lease or other interest in land, or a right granted in respect of land, under a law of the Northern Territory relating, in whole or in part, to the mining or development of extractive mineral deposits;
(c)an interest arising out of the taking possession, mining or occupation of land by virtue of a miner’s right; or
(d)an interest by way of the occupation or use, with the licence or permission of the Crown, of land by an Authority or a mission.
Section 77A is an important provision, although it did not feature much in the parties’ submissions, a problem to which I return. It is expressed to have a deeming effect, and deals with the circumstances in which the consent of traditional Aboriginal owners can be taken to have been given:
77A Consents of traditional Aboriginal owners
Where, for the purposes of this Act, the traditional Aboriginal owners of an area of land are required to have consented, as a group, to a particular act or thing, the consent shall be taken to have been given if:
(a)in a case where there is a particular process of decision making that, under the Aboriginal tradition of those traditional Aboriginal owners or of the group to which they belong, must be complied with in relation to decisions of that kind—the decision was made in accordance with that process; or
(b)in a case where there is no such process of decision making—the decision was made in accordance with a process of decision making agreed to and adopted by those traditional Aboriginal owners in relation to the decision or in relation to decisions of that kind.
The traditional rights of Aboriginal people to use or occupy Aboriginal land are made subject to grants such as those made under s 19:
71 Traditional rights to use or occupation of Aboriginal land
(1)Subject to this section, an Aboriginal or a group of Aboriginals is entitled to enter upon Aboriginal land and use or occupy that land to the extent that that entry, occupation or use is in accordance with Aboriginal tradition governing the rights of that Aboriginal or group of Aboriginals with respect to that land, whether or not those rights are qualified as to place, time, circumstances, purpose, permission or any other factor.
(2)Subsection (1) does not authorize an entry, use or occupation that would interfere with the use or enjoyment of an estate or interest in the land held by a person not being a Land Trust or an incorporated association of Aboriginals.
(3)A reference in this section to an estate or interest in Aboriginal land includes a reference to:
(a) a licence granted under section 19; and
(b)a licence granted by the lessee of a lease granted under section 19A; and
(c)a licence granted by a sublessee of a sublease of a lease referred to in paragraph (b); and
(d)a licence of a kind prescribed by the regulations for the purposes of this paragraph.
(4) Subsection (3) does not limit section 66.
Judicial review provisions
The applicants invoke this Court’s jurisdiction under both s 39B(1A)(c) of the Judiciary Act 1903 (Cth) and ss 5 and 6 of the AD(JR) Act. The operation and effect of s 19(6) of the Land Rights Act on the supervisory jurisdiction of this Court under both pieces of legislation is a key question in this proceeding, if any of the applicants’ grounds of judicial review otherwise have force. The applicants’ contentions about the scope and operation of the AD(JR) Act in the light of s 19(6) are somewhat novel, and it is necessary to set out some of the key provisions upon which the applicants rely.
Section 39B relevantly provides:
39B Original jurisdiction of Federal Court of Australia
Scope of original jurisdiction
(1)Subject to subsections (1B), (1C) and (1EA), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.
(1A)The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:
(a)in which the Commonwealth is seeking an injunction or a declaration; or
(b) arising under the Constitution, or involving its interpretation; or
(c)arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.
Note:Paragraph (c) does not prevent other laws of the Commonwealth conferring criminal jurisdiction on the Federal Court of Australia.
In form, the applicants rely on all grounds in s 5(1) of the AD(JR) Act except s 5(1)(h), although it is fair to say the focus was on paragraphs (a), (c), (d) and (e). Section 5 of the AD(JR) Act relevantly provides:
5 Applications for review of decisions
(1)A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds:
(a)that a breach of the rules of natural justice occurred in connection with the making of the decision;
(b)that procedures that were required by law to be observed in connection with the making of the decision were not observed;
(c)that the person who purported to make the decision did not have jurisdiction to make the decision;
(d)that the decision was not authorized by the enactment in pursuance of which it was purported to be made;
(e)that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;
(f)that the decision involved an error of law, whether or not the error appears on the record of the decision;
(g) that the decision was induced or affected by fraud;
…
(j) that the decision was otherwise contrary to law.
(2)The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:
(a)taking an irrelevant consideration into account in the exercise of a power;
(b)failing to take a relevant consideration into account in the exercise of a power;
(c)an exercise of a power for a purpose other than a purpose for which the power is conferred;
(d) an exercise of a discretionary power in bad faith;
(e)an exercise of a personal discretionary power at the direction or behest of another person;
(f)an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;
(g)an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;
(h)an exercise of a power in such a way that the result of the exercise of the power is uncertain; and
(j)any other exercise of a power in a way that constitutes abuse of the power.
…
The applicants also rely on the following parts of s 6 of the AD(JR) Act:
6 Applications for review of conduct related to making of decisions
(1)Where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies, a person who is aggrieved by the conduct may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the conduct on any one or more of the following grounds:
…
(b)that procedures that are required by law to be observed in respect of the conduct have not been, are not being, or are likely not to be, observed;
(c)that the person who has engaged, is engaging, or proposes to engage, in the conduct does not have jurisdiction to make the proposed decision;
(d)that the enactment in pursuance of which the decision is proposed to be made does not authorize the making of the proposed decision;
…
(f)that an error of law had been, is being, or is likely to be, committed in the course of the conduct or is likely to be committed in the making of the proposed decision;
…
(j)that the making of the proposed decision would be otherwise contrary to law.
…
Section 4 of the AD(JR) Act assumes some prominence in the arguments of the applicants about the effect of s 19(6) of the Land Rights Act. It is a compact provision, which provides:
4 Act to operate notwithstanding anything in existing laws
This Act has effect notwithstanding anything contained in any law in force at the commencement of this Act.
THE LEASES, THE KEY ENTITIES AND THE GENERAL SEQUENCE OF EVENTS
The matters I set out in this section were the subject of notices to admit, and of affidavit evidence as to facts in dispute from those notices, as well as additional affidavit evidence. None of the factual matters I set out here are critical to the resolution of any of the applicants’ grounds. Fact finding which falls into that critical category is dealt with in a later section of these reasons. I am satisfied that all of the matters to which I refer in this section have been proven on the evidence before the Court, through the admissions made, documents tendered, or unchallenged evidence.
The current status of the leases and licence
The impugned direction to grant the leases and licence in issue was given by the CLC to the AALT on 19 October 2016, at a CLC meeting in Alice Springs. I return to the details of the chronology in more detail below. The leases and licence in issue are as follows.
·A lease from the AALT to the IES: a s 19(3) lease over Lots 95, 189 and 190 for public infrastructure services for a 12-year term commencing on the date the last party to execute the lease does so. There is an option to extend the lease for up to 40 years. IES is a not-for-profit subsidiary wholly owned by the Power Water Corporation, established to support the provision of electricity, water and sewerage services to remote indigenous communities in the Northern Territory, including to the Amoonguna community, under an agreement with the Northern Territory government. This lease relates to a sewer pump station, treatment ponds and overflow so as to provide the sewage infrastructure for the Amoonguna community.
·A lease from the AALT to the Northern Territory of Australia: a s 19(3) lease over Lot 88 for public infrastructure services for a 12-year term, commencing on the date the last party to execute the lease does so. It includes an option to extend the lease for up to 40 years. This lease relates to the Amoonguna School.
·A lease from the AALT to the Council: a s 19(4A) lease over Lots 61, 162 and 187 for public infrastructure services for a 12-year term, commencing on 1 July 2014. It includes an option to extend for up to 40 years. This lease relates to Council offices, a works depot and landfill, and was the only lease to grant rights of possession retrospectively.
·A licence from the AALT to the Council: a s 19(4A) licence over Lots 79, 182 and 188 for community parks for a 12-year term commencing on the date the last party to execute the licence does so. It includes an option to extend the licence for up to 40 years. This licence relates to community parks and recreational facilities.
·A lease from the AALT to Congress over Lot 60 for a health clinic for a 12-year term commencing on the date the last party to execute the lease does so. This lease makes no provision for an extended term. According to the terms of this lease, it was made under s 19(3) of the Land Rights Act. However, Senior Counsel for the CLC noted during the trial that this was an error, and that the lease should actually have been made under s 19(2)(c). For the purposes of these reasons, and given that it was not raised as an issue by the applicants, it is not necessary to decide whether the lease was made under s 19(2)(c) or under s 19(3). As the CLC Committee considered this lease under s 19(3), I refer throughout these reasons only to s 19(3).
It will be apparent from the nature of the leases and licence, and it is the fact, that the activities permitted under the lease were all activities that had been undertaken on the land for some considerable time prior to October 2016.
The Northern Territory’s submissions in particular tend to characterise what was occurring through these leases as the regularisation of arrangements which had been in existence for some time. There is some force in that characterisation. However, what had changed, and what underlies this proceeding, is the desire of those members of the Amoonguna community who support the applicants, and ICL as an indigenous-run corporation, to take charge of the leases themselves and, in effect, to either run the services themselves, or sub-lease them out to entities such as Congress.
At this point I should make it clear that I do not accept, on the evidence, that there was any urgency for these kinds of leases, in the way that the Northern Territory submits. As Mr Levy frankly conceded, services had been provided to the Amoonguna community prior to 2007 for many decades without any formal proprietary arrangements. That was because, on the Northern Territory’s argument, of s 14 of the Land Rights Act. Section 14 continued to have effect, as Mr Levy submits. Section 14 would have authorised any urgent repairs or sewerage works. There was no need for these leases and licence to be pushed through for this to occur.
After the 19 October 2016 direction was made, only some of the leases and the licence were executed: namely those to Congress and the Council. The leases to the Northern Territory/IES were not executed by those parties. None of the leases had been registered under the Land Title Act (NT), although at least some of the respondents have evinced an intention to do so and the Council, Northern Territory and IES leases (but not the licence nor the Congress lease) each provide for such registration.
On 18 January 2017, the applicants applied for interlocutory relief to preserve the status quo pending the hearing and determination of their claims, and sought injunctive relief to preclude the remaining leases from being executed and any of them from being registered under the Land Title Act. All respondents eventually gave undertakings to that effect, which were recognised in orders made by the Court on 2 February 2017.
Thus, the position remains as I have set out above. In reality, all of the lessees have continued to conduct the activities for which the leases provide on the land concerned, and there has been no practical interruption or alteration to the services provided to the Amoonguna community. For example, Congress has continued to operate the health services for members of the Amoonguna community.
The evidence
Considerable evidence, both documentary and by affidavit was adduced. Not all witnesses were required for cross-examination. Documents were adduced either through witnesses, or through a notice to admit filed on behalf of the CLC. In the end, most of the key documents were agreed. The CLC took a large number of objections to evidence and where the parties could not agree even after further encouragement, rulings were given.
The applicants adduced evidence from four witnesses:
(1)Marie Elena Ellis, the first applicant, was the applicants’ primary witness. She affirmed four affidavits, giving evidence as to what happened at the key meeting at the Chifley Hotel on 12 October 2016, at which she was present. She also gave evidence regarding the interests of her community and the ICL, of which she was the Senior Community Development Officer, and at times, President, as well as evidence concerning Arrernte culture and law, and seniority within the Arrernte people.
(2)Brett Ian Midena, the applicants’ legal representative, affirmed four affidavits exhibiting correspondence and documents (such as minutes and transcripts of meetings and leases) relevant to the history and background of the dispute. Mr Midena was not subject to cross-examination.
(3)Elaine Ross is an “apmereke-artweye” of the Antulye estate group, which is part of the Arrernte group of people. I return to these concepts below. Ms Ross affirmed an affidavit giving evidence about meetings regarding the management of Amoonguna land, and her knowledge of what occurred at the Chifley Hotel meeting, at which she was not present.
(4)Jeffrey Oliver is the senior “kwertengerle” for Amoonguna land. Mr Oliver gave oral evidence, after being subpoenaed by the applicants, as to whether he expressed consent to the grant of the leases.
The CLC adduced evidence from seven witnesses:
(1)Phillip James Alice is an “apmereke-artweye”, and affirmed an affidavit, giving evidence about what occurred in the lead-up to and during the Chifley Hotel meeting, at which he was present.
(2)Robert Angus Gosford is the CLC’s legal representative and was also present at the Chifley Hotel meeting. He has been involved with the CLC’s day-to-day management since 2015, and affirmed an affidavit giving evidence as to the lease proposals over Amoonguna land and the process leading up to the execution of the instruments of grant.
(3)Brian Connelly is the Manager of the Anthropology Section of the CLC. He affirmed an affidavit giving evidence about the Arrernte people, including decision-making processes and seniority within the group, and the knowledge of the CLC in relation to the Arrernte people.
(4)Helen Wilmot is an anthropologist employed by the CLC, and attended the Chifley Hotel meeting. She affirmed an affidavit giving evidence about her understanding of the traditional owners of Amoonguna and seniority within the group, as well as what happened at the Chifley Hotel meeting.
(5)Jasmin Cherie Rucioch is a senior administrative assistant with the CLC and affirmed an affidavit giving evidence about the execution of the leases and licence. Ms Rucioch was not cross-examined.
(6)Meagan Gail Wynniatt is an administrative officer within the Directorate Section of the CLC and affirmed an affidavit giving evidence about the minutes and agenda items of the CLC Executive Committee meetings. Ms Wynniatt was not subject to cross-examination.
(7)Melany Rebeka Matteucci is a senior administrative assistant with the CLC and affirmed an affidavit giving evidence about the signing of authorities by members of the AALT on the day that Ms Rucioch was absent from work. Ms Matteucci was not subject to cross-examination.
The Northern Territory and IES jointly adduced evidence from four witnesses, none of whom were cross-examined:
(1)Leanne Dawn Evans is the Director, Remote Programs and Projects, Land Tenure at the Department of Housing and Community Development of the Northern Territory. She affirmed two affidavits, giving evidence regarding leases and infrastructure on Amoonguna land, as well as negotiation processes in respect of the leases.
(2)Vicki Faith Baylis is the CEO of the Department of Education of the Northern Territory and affirmed an affidavit giving evidence regarding the school located on Amoonguna land and the lease arrangements.
(3)Nigel Robert Deacon is the Senior Manager Water and Sewer Services, Remote Operations, Power Water Corporation and gave evidence regarding the sewerage assets, infrastructure and leases over Amoonguna land.
(4)Craig Anthony Smyth is the Director of Litigation, at the Solicitor for the Northern Territory, Department of the Attorney-General and Justice. He affirmed an affidavit giving evidence of the circumstances surrounding the filing of the ex parte interlocutory application and originating application in November 2016.
The Council adduced evidence from one witness, Jeffery Allan MacLeod, the CEO of the Council. Mr MacLeod gave evidence as to the execution of the leases and licence and the services provided by the Council at Amoonguna. Mr MacLeod was not cross-examined.
Congress adduced evidence from one witness, Donna Ah Chee, the CEO of the Congress. Ms Ah Chee affirmed an affidavit giving evidence as to Congress’ activities, the operation and occupation of the health clinic in Amoonguna, and her understanding of the events leading up to the execution of the lease over the health clinic in 2016.
Amoonguna
Amoonguna is a community which lies about 20 km south-east of Alice Springs CBD, in the country of the Antulye people. It is about 5.3 square kilometres in size, and was established in the 1960s as an Aboriginal reserve. It was scheduled as Aboriginal land under the Land Rights Act in July 1978.
In his affidavit, Mr Connelly describes the Aboriginal traditions of Arrernte people in relation to land. These propositions are not contested, and are broadly consistent with Ms Marie Ellis’ evidence. He deposes that Arrernte people form groups that are connected to particular areas of land known in anthropological literature as “estates”. Ms Ellis deposes that such estates are referred to as “apmere” in the Arrernte language, a term which I adopt. These apmere were formed by the activities of mythological beings during a period known in English as the Dreaming. Ms Ellis agrees that the term “Dreamtime” or “Dreaming Tracks” is sometimes used in English to describe this concept, which in Arrernte is called “Altyerre”, but says that these words do not properly express Altyerre. Ms Ellis deposes:
This concept [of Altyerre] is very deeply important to us. It is hard to explain, but it concerns our ancestors, our whole system of law. It is about the “creation” and all things. It is also about our ancestors and their powers being deep in us, in our apmere, in our law and in our ceremonies… it is not just things, and times and places…
Altyerre is a continuous creation. You could think of bushfire, rain, re-growth.
In relation to Amoonguna land, the relevant apmere is the Antulye apmere. The Arrernte people with interests in and around Amoonguna are a part or a subset of the wider Antulye apmere. The current senior generation in Amoonguna trace their ancestry back to their paternal and maternal grandparents, which is customary for Arrernte societies. The Antulye apmere is of Penangke/Pengarte patrimoiety or “sub-section”, sometimes referred to as “skin”. Within this apmere, there are two important groups of people who exercise rights and responsibilities in relation to the land: the “apmereke-artweye” and the “kwertengerle”. There is some disagreement between the parties about what flows from the hierarchy of members in these groups, for the purposes of traditional decision-making and I discuss this at [155] below. The Antulye apmere have responsibilities for the care of Amoonguna land and the Arrernte people on that land.
Prior to the establishment of ICL, the Amoonguna Community Inc (ACI) was responsible for the management of Amoonguna, except for NT Portion 568. ACI was incorporated as an incorporated association under the Associations Incorporation Ordinance 1963 (NT) on 22 July 1975. Under the ACI’s original constitution, membership was limited to Aboriginal people accepted by ACI’s governing committee. Subsequently, ACI amended its constitution in 1997 to accept membership from all Aboriginal persons aged 18 and over who normally reside at Amoonguna or who are traditional owners of Amoonguna. According to Ms Marie Ellis’ evidence, which was not challenged on this point and which I accept, until 30 June 2008, ACI provided services and community development work at Amoonguna for the benefit of the Amoonguna community, including building construction, local employment programs, community services such as aged care, community “night patrol” and a local bus service between Amoonguna and Alice Springs.
According to Ms Marie Ellis, the status and operations of the ACI were affected by the 2007 Northern Territory Intervention. I discuss the relevance of the Intervention to this proceeding at [72]. In any event, ACI ceased to exist on 1 July 2008. Legal proceedings were commenced by Ms Ellis and others in relation to the Intervention, with that dispute being settled in 2015. There is no evidence before the Court in relation to that dispute.
In September 2012, following meetings within the Amoonguna community, traditional owners and members of the Amoonguna community decided to establish the ICL to succeed the ACI.
ICL
ICL was established in November 2012 under the Corporations Act 2001 (Cth) as a company limited by guarantee. ICL is also registered as a charity with the Australian Charities and Not-for-profits Commission. Membership of ICL is open to all Aboriginals over 18 years of age who are traditional Aboriginal owners. Its decision-making processes, as set out in its constitution, policies and procedures, are intended to allow decisions about Amoonguna to be made in accordance with Anpernirrentye, or Arrernte law.
ICL was established, according to the uncontested evidence of Ms Marie Ellis, because some traditional owners and Aboriginal residents of Amoonguna were concerned:
(a) to apply Arrernte decision-making processes to the management and development of Amoonguna Land for the benefit of the Amoonguna Community,
(b) to see Amoonguna properly managed and developed by and for the benefit of the traditional Aboriginal owners of the Amoonguna Land and other members of the Amoonguna Community,
(c) to provide government authorities, including the CLC, a practical and meaningful way of properly consulting the traditional Aboriginal owners of Amoonguna Land and/or the Amoonguna Community, and
(d) to avoid facing further disempowerment and ‘intervention’ from government authorities including:
(i) the Commonwealth Government, and the CLC under the ALRA; and
(ii) the Northern Territory Government, and the MRC under the Local Government Act (NT).
ICL has been established to enable traditional Aboriginal owners of Amoonguna to assume responsibility for the management of Amoonguna, as did ICL’s predecessor, ACI. In particular, the establishment of ICL was designed to improve the well-being of the traditional Aboriginal owners of the Amoonguna Land and the residents at Amoonguna:
(a) by managing the rights and entitlements under Anpernirrentye in Amoonguna of the traditional Aboriginal owners of Amoonguna and the traditional owners resident at Amoonguna;
(b) by being the vehicle by which the traditional Aboriginal owners of Amoonguna and the traditional owners resident at Amoonguna exercise their rights and entitlements under Anpernirrentye (Arrernte law) in Amoonguna, including under the ALRA; and
(c) by governing, managing and developing Amoonguna.
Since its establishment, ICL has pursued activities to give effect to its objects, including performing housing repairs and maintenance, and establishing a building company to promote local training and employment.
The composition of ICL at various points in time was not in dispute. At times it might appear from some of the evidence as if ICL was only constituted by Ms Marie Ellis. The evidence shows that is not the case. At the time of the October 2016 meeting, the CLC distributed a pamphlet which showed the then composition of the Board of ICL. It showed the following people:
·Chairperson: Theresa Alice
·President: Marie Ellis
·Board Member: Theo Alice
·Board Member: Mark Alice
·Board Member: Marina Alice
·Board Member: Clement Alice
·Board Member: Joseph Alice
·Board Member: Phillip Alice
·Board Member : Katherine Alice
·Board Member: Roseanne Ellis
·Board Member: Lynette Ellis
·Board Member: Edward Neal
·Board Member: Elaine Ross
·Board Member: Rosalie Riley
·Board Member: Marcia Alice
·Board Member: Maree Oliver
·Board Member: James Oliver
·Board Member: Michael Ellis
·Board Member: Jeffrey Oliver
At the 12 October 2016 meeting, according to the minutes taken by Mr Gosford and the transcript adduced into evidence, Ms Marie Ellis informed the CLC that following a meeting in September, a number of the board members had resigned, including Mr Jeffrey Oliver and Ms Elaine Ross. Some of these resignations were subsequently withdrawn, notably (but possibly not only) Ms Ross’ resignation.
Management of the ICL is conducted through two ICL councils: the Tribal Council and the Community Council. The Tribal Council manages town planning, law and culture at Amoonguna, and comprises senior traditional Aboriginal owners, or Akngerre-apate areye. Any Akngerre-apate areye who are not members of the Tribal Council, such as Mr Oliver, are to be invited to Tribal Council meetings. The Community Council manages the day-to-day services and administration at Amoonguna. Its members are residents of Amoonguna, and include Ms Marie Ellis and Ms Roseanne Ellis.
The fact that there were members of ICL who apparently voted in October 2016 against leases to ICL (such as Mr Phillip Alice) was never really explained in the evidence. Mr Alice’s own affidavit deposes that he remained a board member of ICL at the time the affidavit was made, and appears to suggest he was also a board member at the time of the 12 October 2016 meeting.
It is fair to say, on the evidence before the Court, that support for and involvement in ICL amongst Amoonguna community members appears to have ebbed and flowed over recent years. It is also fair to say, on the evidence, that Ms Marie Ellis, as President, was and remains a driving force in ICL.
The way leases have been organised in remote Aboriginal communities
The mechanism by which communities on Aboriginal land are serviced (whether as to housing, infrastructure or other services) is through the grant of proprietary interests by way of leases and licences from a Land Trust to third parties, which then provide the services back to Aboriginal communities. Once that fact is set out, it is plain there might be other models available, but that is the current arrangement.
How leases in connection with the Northern Territory government occur is dealt with in Ms Evans’ affidavits, and I accept the evidence she gave, which was not contested. What I set out here is the position that, as I understand it, existed at the time of trial.
The Land Tenure Unit within the Department of Housing and Community Development negotiates leases of Aboriginal land on behalf of Northern Territory government agencies. The parties to the leases are generally the relevant Land Trust, Land Council and one of three government agency entities with authority to execute leases: IES, the Department of Corporate and Information Services or CEO Housing. CEO Housing is a body corporate established under the Housing Act (NT). As I understand Ms Evans’ evidence, these three entities and this process applies to what might be called infrastructure or community support leases.
Remote community housing in Central Australia is dealt with separately, through the Commonwealth Executive Director of Township Leasing, which is established under s 20B of the Land Rights Act. This entity secures a long term lease over the housing, and subleases for a shorter term to CEO Housing. The sub-leases are for a term consistent with the Commonwealth funding period for the provision of community housing.
Ms Evans deposed that prior to the Commonwealth’s “National Emergency Response” in the Northern Territory in 2007, there had been an absence of formal tenure (i.e. leases) over Territory government infrastructure on Aboriginal land. She noted in her evidence however, the Northern Territory’s view of its rights under s 14 of the Land Rights Act, a matter which featured in the submissions for the Northern Territory in this case and to which I return briefly later in these reasons.
Ms Evans deposes that the Territory has never paid rent for the lots the subject of the impugned leases: that is, for the lot on which the school is situated, and the lots for sewerage infrastructure.
The relevance of the Northern Territory Intervention to the issues in this case
Ms Evans explained in her evidence how the Northern Territory Intervention has affected the tenure situation in Aboriginal communities situated on land held under the Land Rights Act. At [13] of her first affidavit, she deposed:
During the period 2007 to 2012, the Commonwealth held compulsory five year leases over 64 communities in the Northern Territory under the Northern Territory NationalEmergency Response Act 2007 (Cth). Most, but not all, of these communities are located on Aboriginal land granted under the ALRA. A small number are located on Northern Territory freehold owned by Aboriginal corporations granted under Territory legislation. During this period, the Commonwealth changed the conditions of its funding agreements to require all new capital investment in these communities to be underpinned by a voluntary long term lease at the expiry of the compulsory five year leases. This led to the adoption of an NTG wide policy from 2008 that the Territory negotiate with the relevant Aboriginal land councils (and Aboriginal corporations) for the grant of leases over all Aboriginal land (and NT freehold land) on which NTG infrastructure was situated.
(Emphasis added.)
It is difficult to see how a lease can be truly “voluntary” if it is required before the Aboriginal community concerned receives any capital investment in its community. It seems to me the word “voluntary” as used by Ms Evans can only mean “voluntary” as opposed to leases imposed through Commonwealth legislation such as the 2007 Intervention legislation (that is, the Northern Territory National Emergency Response Act 2007 (Cth) and related legislation).
Ms Evans goes on to describe the task undertaken by the Land Tenure Unit, of which she is a part, since 2008 to set about negotiating these leases. She deposes that since 2008, of the 64 existing communities, 56 now have housing leases in place and eight communities do not have housing leases. Amoonguna is one of the communities without housing leases. Sixty-two of those 64 communities have infrastructure leases as at June 2017. Amoonguna is one of the communities which does not. Ms Evans deposes that her understanding of why some communities do not have these leases in place is, at least as one reason, because of what she describes as “traditional owner disputes”.
Another possibility, it seems to me, is that some communities (or some traditional owners within those communities) are unhappy with the model which underpins these lease arrangements.
Once these circumstances are understood, it is not difficult to see why Land Councils will be concerned to ensure that leases are granted in a way that continues and secures tenure for government tenants. If they do not achieve this outcome, at least on the way Ms Evans’ evidence describes the situation, the Commonwealth may not allocate any funds for capital investment into Aboriginal communities.
In a second affidavit filed late with the leave of the Court, Ms Evans gives further evidence about the negotiation process for the impugned leases. She deposes that from approximately 2010 onwards, the Northern Territory commenced negotiations with the Northern Land Council and the CLC to secure “template” infrastructure leases under s 19 of the Land Rights Act. The substantive terms for the leases, including lease payments, were negotiated through this process. The negotiation process concluded in 2012, and the first leases were granted in that year.
I note this coincides with the evidence about the first steps taken by the CLC to conclude leases over Amoounguna community land, at that time apparently negotiating with ICL. How that sits with Ms Evans’ evidence, and whether there was ever any realistic prospect of ICL securing those infrastructure leases as head leases given the CLC was negotiating directly on a “template” basis with the Northern Territory government, was not explored during the hearing. However, the Northern Territory did submit it was not lawfully possible for ICL to secure a “head-lease” under s 19. The Northern Territory accepted ICL could do so under s 19A.
The role and structure of the CLC
The CLC is a statutory body established as a Land Council under s 21 of the Land Rights Act. Pursuant to ss 23 and 27 of that Act, it has statutory functions and powers in relation to the management of Aboriginal land: see the provisions set out at [22]-[24] above. Relevantly, the CLC’s functions include ascertaining and expressing the wishes and opinions of Aboriginals living in the area of the CLC as to the management of Aboriginal land in that area, protecting the interests of traditional owners in that area, consulting with traditional owners with respect to any proposal relating to the use of that land and negotiating on behalf of traditional owners with persons seeking to obtain an interest in that land. The CLC also has the function and power to direct the AALT, as the relevant Land Trust, to grant an estate or interest in land vested in AALT to another person under s 19(4A). Importantly, as a Land Council, the CLC must not take any action in relation to land held by AALT unless it is satisfied that the traditional owners understand the nature and purpose of the proposed action and as a group consent to it: s 23(3)(a). There is a direct parallel between the purpose and terms of this provision and s 19(5).
The CLC Committee
There was no dispute between the parties about who gave the impugned direction under s 19(5), and how the CLC Committee was constituted. It was a committee of members of the CLC established under s 29A of the Land Rights Act. By s 28(2) of the Act, a Land Council can delegate to a Committee appointed under s 29A any of its functions or powers under the Act, aside from those specified in s 28(2).
Membership of a Land Council, subject to eligibility requirements relating to such matters as convictions for dishonesty offences, is described in s 29(1) and (2):
29 Membership of Land Council
(1)The members of a Land Council shall be Aboriginals living in the area of the Land Council, or whose names are set out in the register maintained by the Land Council in accordance with section 24, chosen by Aboriginals living in the area of the Land Council in accordance with such method or methods of choice, and holding office on such terms and conditions, as is, or are, approved by the Minister from time to time.
(2)A Land Council may, with the approval of the Minister, co‑opt Aboriginals living in the area of the Land Council as additional members, but not more than 5 such members may hold office at any one time.
The clear intention of s 29, and then of s 29A, is that those people who are traditional Aboriginal owners for the land in respect of which the Land Council performs its functions and exercises its powers will be the people who make decisions about the exercise of powers and the performance of functions by the Land Council.
Section 28(4) of the Land Rights Act provides:
(4)Where the provisions of this Act require that a Land Council, before performing a function or exercising a power conferred upon it to do, or to consent to the doing of, an act or thing, satisfy itself that:
(a)the traditional Aboriginal owners (if any) of the land affected by the performance of the function or the exercise of the power understand the nature and purpose of the act or thing and consent to it; and
(b)any Aboriginal community or group that may be affected by the doing of the act or thing has been consulted and has had adequate opportunity to express its views to the Land Council;
then, if that function or power is delegated, the delegate may perform the function or exercise the power if the delegate is satisfied:
(c) of the matter referred to in paragraph (a); and
(d)that any Aboriginal community or group that may be affected by the doing of the act or thing has been consulted and has had adequate opportunity to express its views to the delegate.
I have set out the applicants’ arguments about the affixing of the seal at [206]-[210] above, as well as the extent of the agreed factual basis against which their arguments are to be assessed.
It is clear there was no compliance with the terms of s 4(5) of the Land Rights Act in the way the seal of the AALT has been affixed to the impugned leases. It is clear that the purported retrospective ratification by the written authorisations to which I refer at [336(2)] can have no validating effect because those authorisations are not directed to the person who affixed the seals: namely, Ms Rucioch. Even if one were to accept the CLC’s argument that the CLC can, purportedly in compliance with s 4(5), retrospectively ratify (or authorise) the affixing of a seal to a document by which a Land Trust purports to grant an estate or interest in land, the difficulty here is that the retrospective authorisations did not ratify the affixing of the seals by Ms Rucioch. They ratified the affixing of seals by two persons who did not affix the seals. The same is true of the CLC Committee resolution apparently made at the 19 October 2016 meeting: even if this could have been relied upon, it was not directed at Ms Rucioch.
Although she may have been a person within the terms of s 4(4) (that is, a staff member authorised to keep the seal), that fact does not bring her within s 4(5).
Therefore the principal question is what is the effect, if any, of such non-compliance on the validity and effectiveness of the impugned leases.
The applicants submit:
The general rule at common law is that a corporation may only contract under its seal. That rule has been modified by statute in certain contexts. In particular, that rule has been modified by statute for corporations incorporated under the Corporations Act. However, as Seddon et al observe, “a corporation that has not been so incorporated, for example a statutory corporation … must use its seal unless there is a specific statutory exemption to be found in the relevant legislation or a common law exception applies”.
(Footnotes omitted.)
I accept this submission. In my opinion, the terms of s 4(3) and 4(5) of the Land Rights Act are intended to give effect to this general law rule, by recognising that a statutory corporation should contract by the use of its common seal and that there is to be a prescribed process for the affixing of that seal, to ensure that a Land Trust is intentionally, formally and appropriately bound by the contractual obligations it purports to assume. Further, for s 4(3)(c) to state that a Land Trust may “acquire, hold and dispose of real and personal property” subject to Pt II of the Land Rights Act is a further recognition that the scheme intends a Land Trust to contract (including in relation to interests in land) by the affixing of its seal. The presumption in s 4(6) supports this construction: a presumption that the Land Trust seal has been duly affixed is only necessary because of the legal effect to be gained from the use of a seal.
It is well established that corporations contract through a seal at common law, although there may be exceptions. It is equally well established that a statute may impose an obligation to do so, with non-compliance resulting in no binding contract. In Johnson’s Tyne Foundry Pty Ltd v President, Ratepayers and Councillors of the Shire of Maffra [1948] HCA 46; 77 CLR 544, Latham CJ said at 551-552:
Independently of statutory provisions, a non-trading corporation at common law was bound by the general rule that its contracts must be made under seal. But there were exceptions to this rule… But if a statute requires that contracts of a corporation shall be made in a particular manner the statutory provisions necessarily supersede the common law. Thus in Young & Co. v. Mayor, &c., of Royal Leamington Spa it was held that where a statute provided that every contract made by an urban authority the value or amount of which exceeded £50, should be in writing and sealed, the urban authority was not bound by any contract not so made, and was not bound even by an executed contract of which the authority had the full benefit and enjoyment where that contract was not made in the prescribed manner…
Clearly, a corporation incorporated under the Corporations Act 2001 (Cth) is not subject to the common law requirement that it may only contract under its seal: s 127. This provision is not applicable to statutory corporations. Authorities concerning the common law requirement for seals, particularly in relation to statutory corporations, are few and far between. The most recent appellate court affirmation of the common law position in Australia appears to be the Queensland Court of Appeal decision of Victoria Park Golf Club Inc v Brisbane City Council [2001] QCA 528, where McPherson JA (with whom McMurdo P and Mackenzie J agreed) said (at [10]):
The common law rule is that a corporation is, subject to recognised exceptions, incapable of contracting or doing any other act except by or under its common seal.
See Mayor of Ludlow v Charlton (1840) 6 M & W 815, 817-818, 151 ER 642, 643, where Parke B said:
“I doubt whether any case has gone so far as to shew that a corporation can bind itself by such a contract as this, not under seal. The old cases permitted as to certain small things, which must of necessity be done without that formality, and this exception has been extended by the modern cases to things which the corporation, by the nature of its constitution, must do to carry on its concerns: but that principle does not apply to the case of a municipal corporation; it cannot be necessary for the purposes of its constitution, that it should part with so much of its property.”
After referring to the Queensland legislation in relation to the formation of contracts by Brisbane City Council, his Honour held that in that case:
Abolition of the common law requirement that a corporate act by the Council is to be done under its seal is confined in s 40(1) to the case of a contract made by a delegate or other person “acting with the authority of the Council”.
Seddon et al, in the leading text, Cheshire & Fifoot’s Law of Contract (11th Australian ed, 2017) provide a useful outline of the state of the law in relation to the use of seals by statutory corporations (at [17.71]):
Although corporations incorporated under the Corporations Act 2001 (Cth) are freed from the necessity of contracting under the corporate seal, a corporation that has not been so incorporated, for example, a statutory corporation (including a local government body), must use its seal unless there is specific statutory exemption to be found in relevant legislation or a common law exception applies. The rule was obviously inconvenient and was, at times, deplored by the judiciary. There are three important common law exceptions to this rule. It may be that in modern times these exceptions have overtaken the rule.
First, the rule did not apply to trading corporations… Secondly it was recognised from the earliest times that a requirement that every contract made by a non-trading corporation must be made by seal was obviously burdensome. Accordingly, when the contract was of frequent occurrence, of trifling importance or a matter of urgent necessity the rule did not apply. Thirdly, where a contract has been duly performed by one of the parties, an action lies against the other party for breach of an implied promise to pay for the benefit requested and received…
The significance of this rule today is that it may still be possible to argue that a statutory corporation, that purports to make an important contract without the use of its seal, has in fact not made an effective contract so long as it is still executory, assuming that there is no legislative provision that has abrogated the rule.
None of the common law exceptions referred to by Seddon et al apply here. Not only does the Land Rights Act not abrogate the common law rule, it expressly gives effect to the general common law rule in relation to Land Trusts.
More critically than the common law position, the statutory requirement in the case of the Land Rights Act is unambiguous, and effect should be given to it, especially so when what is at stake is the disposition of an interest in land, to which particular formalities generally attach.
Whatever protective function or effect s 19(6) may have on the Land Council’s direction under s 19(5), it cannot have any such effect on non-compliance with s 4(5). The terms of s 19(6) simply do not engage with Pt II of the Land Rights Act in which s 4(5) is found. Whatever view is taken of its effectiveness, what is protected by s 19(6) is any legal infirmity in the direction given by the Land Council to the Land Trust. Section 19(6), in its text, deals with a situation where a Land Council “in giving a direction….fails to comply with subsection (5)”. That language directs attention to the two conditions on the direction power that are set out in subsection (5), and to nothing wider than that.
Rather, the question is how do the terms of s 19(3) and 19(4A) interact with the terms of s 4(3) and the requirements of s 4(5). It is appropriate to set s 19(3) and (4A) out again:
(3)With the consent, in writing, of the Minister, and at the direction, in writing, of the relevant Land Council, a Land Trust may, subject to subsection (7), grant an estate or interest in land vested in it to the Commonwealth, the Northern Territory or an Authority for any public purpose or to a mission for any mission purpose.
…
(4A)With the consent, in writing, of the Minister, and at the direction, in writing, of the relevant Land Council, a Land Trust may, subject to subsection (7), grant an estate or interest in the whole, or any part, of the land vested in it to any person for any purpose.
Section 4(3) and (5) provide:
Legal status of Land Trust
(3) A Land Trust:
(a) is a body corporate, with perpetual succession;
(b) shall have a common seal;
(c)subject to this Part, may acquire, hold and dispose of real and personal property; and
(d) may sue and be sued in its corporate name.
…
(5)The common seal of a Land Trust is to be affixed to a document only with a written authority signed by:
(a)if the Trust consists of 4 or more members—at least 3 of those members; or
(b) if the Trust consists of 3 members—at least 2 of those members.
Note: Section 7 deals with the membership of a Land Trust.
What act or acts does the Land Rights Act identify as the “grant”, and will that act or acts necessarily require compliance with s 4(5)?
The discretionary power in s 19(3) and (4A) must be read with the terms of s 4(3), which is the general provision authorising a Land Trust to dispose of real property, and constituting a Land Trust as a statutory entity capable of dealing with interests in land in a contractual sense. Section 19(3) and (4A) then confer a particular power on a Land Trust, s 19 being the central provision in the Land Rights Act regulating dealing with land by Land Trusts.
The parties’ written and oral submissions spent considerable time addressing complex questions about what was required for a legal “grant” to take effect, and whether when only some parties had executed the leases (as was the case for the Northern Territory and IES leases) there was an agreement to grant which created at the least an equitable interest in the land. These submissions need only be addressed to a limited extent. The correct focus is on what the statutory regime requires.
I do not accept the CLC’s submission that there is a “grant” within the meaning of s 19(3) and (4A) when the Land Council gives the Land Trust a direction under s 19(5). The subject matter of s 19(5) is not a grant of an estate or interest: it is a direction by a Land Council to a Land Trust. The legislative scheme generally and s 19 in particular (s 19(2)(c) is another example) contemplates Land Trusts will act on, or after, a direction by a Land Council, rather than acting independently to determine whether an estate or interest in Aboriginal land held by a Land Trust should be created. That is also the clear effect of s 5(2), which requires a Land Trust to exercise its functions in accordance with Land Council directions and where a direction is given, to take action in accordance with that direction.
Section 19(5) is concerned with the limitations on the circumstances in which a Land Council is able to give a Land Trust such a direction. That construction is confirmed, in my opinion, by the use of the adjective “proposed” in s 19(6). The use of the word “proposed” in the phrase “proposed grant” indicates that the only subject matter of s 19(5) is the direction, and that the grant (which is “proposed” by the giving of the direction) will be made in exercise of a different power: here, s 19(3) and (4A).
The principal provisions in which the power of a Land Trust to make the grant is contained are, relevantly, s 19(3) and (4A), with similar powers being conferred in s 19(2) and 19(4).
If s 19(3) and (4A) are the applicable sources of power, as I consider they are, the question remains what meaning is to be given to the word “grant” in s 19(3) and (4A). Given the context and wording of both subsections in s 19, the word “grant” ought to be afforded the same meaning in each subsection. Other parts of s 19 inform the answer to that question.
Section 19(1) contains the prohibition which governs the remainder of s 19. By its terms, Parliament intends that not only any dealing in or disposal of Aboriginal land occur strictly in accordance with the limits set out in s 19, but also that any “agree[ment]” to deal in or dispose of Aboriginal land be subject to those limits. So, for example, s 19(1) (read with s 5(2)) would prohibit a Land Trust from agreeing with a third party that the third party lease Aboriginal land for the purposes of, say, a medical clinic, unless there was a direction under s 19(5) and then an exercise of power by the Land Trust under one of the applicable provisions such as s 19(2), (3), (4) or (4A), taking into account the limitations imposed by some of those provisions (such as ministerial consent).
This construction is consistent with the protective effect of s 19, and the Land Rights Act more generally, in relation to the interests of traditional owners and Aboriginal communities in Aboriginal land they have been granted under ss 10 and 11. It should be noted that s 11A, does confer a limited power on a Land Council (not a Land Trust) to agree to grant an estate or interest in land before there is a grant of Aboriginal land to a Land Trust. This section was inserted in 1987 following the Aboriginal Land Rights (Northern Territory) Amendment Act 1987 (Cth). The insertion appears to be in response to Justice Toohey’s report to the Minister for Aboriginal Affairs, entitled “Seven Years On” dated December 1983, where his Honour recommended that s 23(1)(e) of the Land Rights Act, which confers a function on Land Councils to negotiate with persons desiring to obtain an estate or interest in land in the area of the Land Council, be amended to allow for negotiations in respect of land which is subject to an application to the Commissioner to have recognised as Aboriginal land but which has not yet been recognised as Aboriginal land, and so has not been vested in a Land Trust. The explanatory memorandum indicates that the insertion of s 11A corresponds with the amendment to s 23(1)(e), so as to allow a Land Council to enter into agreements the subject of negotiations under s 23(1)(e).
For present purposes, the relevance of the text of s 19(1) is that it distinguishes between a dealing, a disposal and an agreement to do either of those things. It suggests that not all those actions are equivalent to a “grant”.
Then there is the text of s 19(8) and s 19(8C) which use the word “transfer” in a context that suggest it means something different from a “grant”. The same can be said of s 19(9) which is related to s 19(6), but also contemplates that a third party may acquire an interest by “grant” or by “transfer”.
Thus, it would appear that one action which the word “grant” does not include is the transfer of an interest from a grantee to another person. Rather “grant” is concerned with the creation of a new interest in Aboriginal land by the Land Trust, and is directed towards conduct as between the Land Trust and a third party.
Otherwise, it is notable that s 19 consistently uses the phrase “grant an estate or interest” throughout its text. The term “grant” is also used in the Land Rights Act in other, similar contexts, such as in Part IV, dealing with mining on Aboriginal land. Section 40, for example, deals with the “grant” of exploration licences and s 45 deals with the “grant” of mining interests.
These provisions lead me to conclude that the word “grant” as it is used in s 19(3) and (4A), in the same way it is used elsewhere in the Land Rights Act, intends to import the general law usage of the word. There must also be some intended equivalence between the use of the word “grant” throughout the Act in relation to a Land Trust and the use of the word “dispose” in s 4(3).
In the current context, little assistance is gained from the inclusive but not exhaustive definition of the word “grant” in s 3(1) of the Land Rights Act. That definition states that the meaning of grant, in relation to an interest in land, includes “the doing of any action by reason of which the interest arises”. The inclusion of actions does not take the analysis any further for the purposes of understanding what is meant in s 19 by the “grant of an estate or interests” for the purpose of determining when the seal of a Land Trust needs to be affixed. Similarly, I accept the applicants’ submissions that the terms of s 3(2) of the Land Rights Act, are of no relevance. That subsection provides that the term “estate or interest in land” in the Land Rights Act should be read to include a right against the Crown to a grant. That has no relevance to s 19(3), (4A) and (5).
The meaning of the word “grant” in the context of conveyancing and the disposition of interests in land seems elusive. None of the authorities cited by the parties on this issue considered the meaning of “grant” in this context, nor did they consider when a grant is said to occur. I consider the concept of a grant as it is used in the context of the Land Rights Act refers to the legal conveyance of proprietary interest from one party to another, and occurs on the valid execution and exchange of contracts. This definition appears to me to be consistent with what little authority there is on the term “grant”. In Coulthard v South Australia [2014] FCA 101; 218 FCR 148 at [30] and [83], Mansfield J accepted that the “conventional conveyancing meaning” of the word “grant” is:
the original creation of a freehold estate or of a perpetual lease separated from the reversionary interest…
Similarly, in the UK, the Court of Appeal considered in Ryan v Islington London Borough Council [2009] EWCA Civ 578 at [57] (Rimer LJ; Waller and Aikens LJJ agreeing) that “grant” in the context of the Housing Act 1985 meant “the conveyance or lease by which the premises are to be assured to the purchaser on completion”.
In the case of a statutory entity such as a Land Trust, operating in accordance with s 4(3), the use of its seal is required: it is the evidence of its authority to enter into a contract. A Land Trust only has the authority given to it by the Land Rights Act. Section 4(5) expressly sets out the circumstances in which a seal can be affixed as evidence of a Land Trust’s authority to enter into a contract or make an agreement, and by the use of the word “only” the provision indicates Parliament’s intention that the method there prescribed must be adhered to.
I do not consider there can be a valid exercise of power by a Land Trust under s 19(3) and (4A) to “grant” an interest or estate in Aboriginal land (that is, to convey by execution of, relevantly, a lease or licence) unless and until there is compliance with the terms of s 4(5). Contrary to the CLC’s submissions, there is a clear temporal limitation to be implied in s 4(5) for it to serve its statutory purpose. A seal is evidence of authority to contract (and thus to convey), and without a seal affixed in accordance with law there is no authority to contract (or convey). The seal is to be affixed at the time the contract is entered into: here, when the leases and licence are executed on behalf of the Land Trust. Either at that point in time, there was the requisite authority to affix a seal under s 4(5) and bind a Land Trust, or there was not. In my opinion, that is the way s 4(5) is intended to operate.
The consequence is that none of the impugned leases and licence were executed by the AALT in accordance with the Land Rights Act because the seal of the AALT was not affixed in compliance with s 4(5). I do not accept the CLC’s contention that a later authority purportedly given under s 4(5) and after execution of a contract, would suffice. Given the purpose of a seal, either the authority to contract exists, or it does not. The CLC relied upon the decision of Blow J in R v Turner (No 9) [2001] TASSC 97; 162 FLR 290 at [28]-[33]. That was a collateral challenge to, amongst other things, a delegation to grant a fishing permit, in the context of a fisheries prosecution. A delegation was required by the Act to be “by writing under its common seal”. The terms of s 10 of the Fisheries Administration Act 1991 (Cth) did not contain a provision equivalent to s 4(5) of the Land Rights Act. Rather s 10 provided that the seal “must not be used except as authorised by the Authority”. There were several challenges to the delegations, including several involving the affixing of the seal. There were two meetings of the Australian Fisheries Management Authority (AFMA) where the affixing of the seal to the delegations could have been authorised as s 10 required: one in January 1992 and one in October 1992. Blow J upheld the argument that the authorisation could not have been given at the January meeting because AFMA did not come into existence until the commencement of the Fisheries Administration Act on 3 February 1992. Blow J did however find that at the October 1992 meeting, the Board authorised, by reason of general resolution about delegations, a delegation made under seal in December 1992. The permits in question were not issued until 15 January 1993. Thus, both the delegation itself and the act on which the delegation (the granting of the permit) occurred after the authority was given by the AFMA Board.
On any view, that is the reverse of the chronology in the present proceeding.
There also remains the fact that the authorities which were issued did not authorise Ms Rucioch to affix the seal, nor could they have, unless she held one of the two positions set out in the authorities signed by the AALT Board members to affix the seal. Contrary to the situation in R v Turner (see Blow J at [33]) the Land Rights Act is prescriptive about the manner in which documents can be executed under seal. Although the Land Rights Act is not prescriptive about the persons to whom authority may be given to execute documents under seal, the authorities signed by the AALT Board members under s 4(5) prescribed the persons who had authority to affix the seals, being the CLC Chairman and an executive member of the CLC. The statute, through s 4(5) gives legal effect to those authorities in their terms, and only in their terms.
Further, reliance by the CLC on the presumption in s 4(6) must be rejected in circumstances where, as here there is a challenge to the validity of the affixing of the seal. Section 4(6) sets out a rebuttable presumption, nothing more. That was the approach taken by Blow J in R v Turner: see [21].
The requirements of s 4(5) are no mere formalities: what a Land Trust is doing is dealing with land it holds for the benefit of Aboriginal people. It is a statutory trustee: see s 5(1)(b) and Wurridjal at [128] (Gummow and Hayne JJ); Rirratjingu at [89], where Mansfield J said:
However, the fact that the Land Trust was subject to express constraints in ss 5, 12, and 19 of the ALRA as to how it can deal with the land was further indication that the trust in question was not a trust in an ordinary sense, but in the non-technical sense for statutory purposes...
A Land Trust is entitled to deal with Aboriginal land only in the way the Land Rights Act authorises. Otherwise, the interests of traditional owners and Aboriginal communities in their land are rendered vulnerable to interference and diminution outside the framework the Act has created. I do not accept the submissions of the CLC, relying on the principles of statutory construction set out in Project Blue Sky, that there is a basis in the text, context and purpose of the Land Rights Act, and Pt II in particular, to find that Parliament intended that non-compliance with s 4(5) would not affect the validity of the act purporting to be authorised by the affixing of the seal. For the reasons I have set out above, the seal of the Land Trust is the way in which the authority given to the Land Trust is made clear to those who would contract with it, those who are affected by its actions and those whom it purports to empower. A legislative choice was made by the Parliament about the level of prescription to attach to how that authority was to be given.
Unsurprisingly, when what was in issue was the giving of authority to a statutory corporation to interfere with the proprietary interests of Aboriginal people, granted and recognised under the very same piece of legislation and for whose benefit the Land Trust performs its functions, a relatively high level of prescription was imposed by Parliament, in the terms of s 4(5). There is prescription as to who is to hold the common seal and how the authority to affix the seal is to be given and by whom that authority was to be given. The Parliament went so far as to prescribe how many members of the Land Trust would be needed to give that authority, again clearly conscious of the serious effects of an exercise of the Land Trusts’ powers on the proprietary interests of traditional owners and communities.
Members of a Land Trust are appointed by the Minister: see s 7(2). They must all be “Aboriginals living in the area of the Land Council in the area of which the land of the Land Trust is situated”, or be Aboriginals whose names are set out on a register kept by a Land Council: s 7(6).
The purpose of specifying, in s 4(5), a minimum number of Land Trust members who must authorise affixing a seal is clearly intended to prevent abuses of power by individual members of a Land Trust, who are, given the terms of s 7(6), likely to have an interest in the land being dealt with, or be connected to people who do.
To that extent, the need for the Court to be satisfied that it is a “purpose of the legislation that an act done in breach of the provision should be invalid” (see Project Blue Sky at [93]) is in my opinion clearly made out.
It should be recalled here that until 10 November 2016, the AALT was constituted by the first and second applicants and five other people: see [91] above. Perhaps three of these people would have authorised affixing the AALT seal to the impugned leases. Perhaps not. Certainly on the evidence the first and second applicants would not have done so. There is no evidence about the other four individuals. Of course, without that authority, the lease transactions could not be completed. How the Minister came to appoint new members in November 2016, and how he chose them, was not explained in the evidence. But the importance of the need for contemporaneous written authority is made clear on the facts.
The CLC submits that the effects on third parties and the “inconvenience” that could result from construing non-compliance with s 4(5) as going to validity are reasons to avoid such a construction. The CLC relies on the authorities to which the High Court referred in Project Blue Sky at [93] and [97]. As to the latter, the proposition at [97] of Project Blue Sky relates to “public inconvenience”, not “inconvenience” as between parties. Those situations are rare, given that any finding of invalidity in an exercise of public power is likely, often to a significant extent, to be “inconvenient” for one or more of the persons affected. Examples of instances where breaches of a provision have not invalidated an act due to “serious general inconvenience” are cited in the Privy Council decision of Montreal Street Railway Co v Normandin [1917] AC 170 at 175 (which was cited in Project Blue Sky at [97]), and include breaches of such provisions as provisions for holding sessions at particular times and places, provisions as to rates, and provisions as to justices acting without having taken the prescribed oath. In another case cited by Project Blue Sky, Clayton v Heffron [1960] HCA 92; 105 CLR 214 at 247, the provision and inconvenience concerned:
…the invalidation perhaps at some future time of a constitutional provision possessing all the outward appearances of a valid law on the ground that when it was made managers of the Council had not met managers of the Assembly before the members of the two Houses were required by the Governor to meet.
These examples are self-evidently of a different nature to a provision such as s 4(5), read with s 4(3), and the “inconvenience” currently being examined. The Land Rights Act is not a statute directed at the general public in any event: it is a statute directed at the protection of Aboriginal rights and interests in land, once they have been granted. To construe s 4(5) as not going to validity would not advance that protective purpose, and would place the “convenience” of third parties (such as lessees) ahead of the interests of traditional owners and communities.
Where the Land Rights Act intended to give preference to the rights of third parties, and in particular third parties who acquire an interest without notice of any irregularity or unlawfulness, it says so expressly: see for example s 19(9). Section 19(6), although the extent of its effectiveness is a matter of debate, is another example of a legislative intention to provide for the effects on third parties of non-compliance with a specific requirement in the Land Rights Act. There are no such express provisions touching on non-compliance with s 4(5) and that, in my opinion, is a factor of some significance.
I therefore reject the CLC’s proposition that in relation to any of the impugned leases, there was a legally effective “grant” under s 19(3) or (4A) (or indeed under s 19(2)(c) as Senior Counsel for the CLC submitted was the source for the grant of the lease to Congress). These findings say nothing about whether there is an agreement, enforceable in equity. I need not make any such findings, because they do not touch the validity of the direction given to the Land Trust under s 19(5). As I have found, the s 19(5) direction has not been successfully challenged, so the direction stands. The Land Trust remains subject to a valid direction from the Land Council under s 19(5), and it is required by the terms of s 5(2) to act in accordance with that direction. It would seem likely each of the lessees has an equitable interest arising from, at least, an agreement by the Land Trust to grant a lease to each of them, but the more critical point is that the AALT remains obliged to act in accordance with the direction of the CLC, unless that direction is rescinded.
The parties to the leases, and the CLC, will be free to take whatever action they consider, and are advised, may be appropriate to move forward with the leases, if that is what they decide to do.
Given the conclusion I have reached, there is no need to deal, any more than I have already in determining the argument about the affixing of the seal, with the second contention of the applicants that the failure to exchange counterparts meant there had been no “grant”.
The operation and effect of s 19(6) on the grants and the CLC Committee decision
In circumstances where I have not upheld any of the applicants’ grounds of review, it is not necessary for me to reach a concluded view on the operation of s 19(6). The construction and operation of s 19(6) was very much at the heart of this proceeding, and a considerable amount of time in written and oral argument was spent on it. I have therefore considered carefully whether I should express an opinion about the proper construction and operation of s 19(6). I have decided it would not be appropriate to do so. It is a question of some significance, and it should await determination in a case where the Court makes a clear finding of non-compliance with s 19(5). One of the main reasons I have reached that view is because it seems to me that a clear finding about non-compliance with s 19(5), and subsidiary findings about how that non-compliance occurred, its nature and extent, would inform the application of the competing constructional choices about s 19(6), because it would provide a concrete situation against which those competing constructions could be tested.
For the purposes of s 39B of the Judiciary Act, the applicants, ultimately, did not contend that s 19(6) was ineffective to protect a direction of the Land Council under s 19(5) from being set aside, or declared invalid, by reason of a failure by the Land Council to form a lawful state of satisfaction in the manner I have set out at [376]. That the applicants did not press the Court, for example, to distinguish Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32; 237 CLR 146, and take an approach that was more akin to that taken by the High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; 211 CLR 476 to a full privative clause, is not determinative. Such an argument remains open. In my opinion, there remain real constructional choices about the scope and operation of s 19(6). They should, however, be decided in a case where they need to be decided.
Similarly, because I have not found any of the applicants’ grounds of review to be made out, I do not need to consider the applicants’ principal contentions designed to avoid the operation of s 19(6): namely that s 19(6) cannot and is not intended to protect a direction by a Land Council under s 19(5) from review under the AD(JR) Act and the grant of relief under that Act. As I have noted earlier in these reasons, the applicants’ argument on this point was one that does not appear to have been raised before, but it is not to be discounted on that basis. It relies, with good reason, on the terms and operation of the s 4 of the AD(JR) Act, in particular given the Land Rights Act is an earlier piece of Commonwealth legislation. That argument, which deserves serious consideration, should also await a case where it needs to be determined.
APPROPRIATE RELIEF
The applicants have succeeded in their contention about the failure to comply with s 4(5) of the Land Rights Act in relation to the affixing of the seals. At present, it seems to me the most appropriate relief would be declaratory relief on this issue. As I have noted above, it is likely this non-compliance, as a matter of practicality, can and will be addressed by the parties to the leases. Whether or not the status quo, as maintained by the undertakings given to the Court, in terms of no steps being taken to give the leases any formal effects under the Land Title Act (NT) or the execution or re-execution of the impugned leases and licence, should continue until further steps have been taken to comply with s 4(5), is, amongst other matters, something on which I will give the parties an opportunity to attempt to agree, or alternatively to make submissions.
The parties will also be given an opportunity to agree on appropriate orders as to costs, in a lump sum form. Failing agreement, there will be directions for a process so that the Court can make lump sum orders as to costs, after considering the parties’ submissions about what costs orders are appropriate given the limited success of the application.
I certify that the preceding four hundred and eighty (480) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer. Associate:
Dated: 2 February 2018
SCHEDULE OF PARTIES
NTD 60 of 2016 Respondents
Fourth Respondent:
CENTRAL AUSTRALIAN ABORIGINAL CONGRESS ABORIGINAL CORPORATION
Fifth Respondent:
AMOONGUNA ABORIGINAL LAND TRUST
Sixth Respondent:
INDIGENOUS ESSENTIAL SERVICES PTY LTD
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