Ellis v Central Land Council

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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

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Details
Case
[2018] FCA 35
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, Ellis v Central Land Council involved a dispute over the validity of certain land leases granted by the Central Land Council (CLC) to various entities, including the Aboriginal Areas Trust Authority (AALT). The applicants, including Marie Elena Ellis, challenged the CLC's decision to grant these leases, arguing that the CLC had not satisfied itself of the consent of the traditional Aboriginal owners, thereby denying them procedural fairness and resulting in an unreasonable decision. Additionally, they argued that the use of an unauthorised seal rendered the act invalid. The applicants also sought to have the leases declared void on the basis of procedural irregularities and alleged breaches of statutory requirements.

The central legal issues in the case were whether the CLC had properly satisfied itself of the consent of the traditional Aboriginal owners as required by the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), whether procedural fairness was denied, whether the decision was legally unreasonable, and whether the use of an unauthorised seal rendered the act invalid. Furthermore, the court had to consider the meaning of “grant” under the Act and the applicability of s 19(6) of the Land Rights Act in protecting the CLC's decisions from judicial review.

The court examined the evidence presented by both parties, including affidavits and documentary evidence, and found that the CLC had indeed satisfied itself of the consent of the traditional Aboriginal owners, thus upholding the decision-making process. The court also held that there was no denial of procedural fairness and that the decision was not legally unreasonable. Regarding the use of an unauthorised seal, the court determined that it did not render the act invalid. The court further clarified that the concept of “grant” under the Act was not contingent on the exchange of counterparts, and the absence of such exchange did not nullify the grant. Consequently, the applicants' grounds for review were dismissed, and the leases were upheld as valid.

The court ordered the parties to confer and file joint proposed minutes of orders reflecting the Court’s reasons for judgment by a specified date. If the parties could not agree on the orders, they were to file written submissions limited to five pages, supporting their respective orders. The court also directed that if the parties agreed on appropriate orders for costs, they were to file a joint minute of proposed orders by a specified date. If there was no agreement on costs orders, the parties were to file and serve submissions on appropriate orders for costs by another specified date.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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 lawsThis 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).

Ratio Decidendi

Legal Principle Established

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