Pappin v Balranald Local Aboriginal Land Council

[2001] NSWLEC 196

Land and Environment Court

of New South Wales

CITATION:	Pappin v Balranald Local Aboriginal Land Council [2001] NSWLEC 196
PARTIES:	APPLICANT Gary Jean Pappin RESPONDENT Balranald Local Aboriginal Land Council
FILE NUMBER(S):	40154 of 2000
CORAM:	Talbot J
KEY ISSUES:	Aboriginal :- whether condition applicable to purchase of land by a regional aboriginal land council on behalf of a local aboriginal land council
LEGISLATION CITED:	Aboriginal Land Rights Act 1983 s 6(3), s 7(2), s 12(b), s 12(c), s 20(1)(b), s 20(1)(b1), s 28(2), s 38(1), s 38(2), s 38(3), s 40, s 40(2), s 40(3), s 40(5A), s 40A(1), s 41, s 42, s 44, s 45 Aboriginal Land Rights (Amendment) Act 1986 Aboriginal Land Rights (Amendment) Act 1990 Sch 4 Pt 3 cl 11 Real Property Act 1900 s 42
CASES CITED:	Alan v Tobias and Another (1958) 98 CLR 367; Jones v Dunkel and Another (1958) 101 CLR 298; Leros Proprietary Limited v Terara Proprietary Limited and Another (1991) 174 CLR 407; Pappin v Balranald Local Aboriginal Land Council [2000] NSWLEC 263, unreported
DATES OF HEARING:	07/08/2001, 08/08/2001, 09/08/2001, 16/08/2001 (written submissions), 20/08/2001 (final written submissions)
DATE OF JUDGMENT:	08/23/2001
LEGAL REPRESENTATIVES:	APPLICANT Mr M Dengate (Agent) SOLICITORS N/A RESPONDENT Mr T Robertson (Barrister) SOLICITORS Henrietta J Dean

JUDGMENT:

IN THE LAND AND Matter No. 40154 of 2000
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 23 August 2001

Gary Jean Pappin
Applicant

v
Balranald Local Aboriginal Land Council

Respondent

REASONS FOR JUDGMENT


The applicant’s claim

1. These are class 4 proceedings whereby the applicant seeks relief by way of a declaration that, pursuant to s 38(3) of the Aboriginal Land Rights Act 1983 (NSW) (“the Aboriginal Land Rights Act”), the land known as Auley Station should not be dealt with by the New South Wales Aboriginal Land Council (“NSWALC”) or the Balranald Local Aboriginal Land Council (“BLALC”) except in accordance with the condition agreed to by the BLALC at the time the subject property was acquired on its behalf. The application class 4 sets out the terms of the alleged condition as follows:-

The condition of the property known as Auley Station being acquired on behalf of the Balranald Local Aboriginal Land Council is that such an acquisition be for the purpose of allowing, without interference, the traditional indigenous owners of the area (Muthi Muthi) to utilise the property to continue the traditions, observances, customs and beliefs of the Muthi Muthi people.

2. The Court has received affidavit evidence supplemented by oral evidence from a number of witnesses. The evidence of those individuals is set out below.

Mr Darryl G Pappin (also known as Joe)

3. During 1986 Mr Darryl Pappin was the regional representative for the BLALC and regularly attended meetings of the Western Regional Aboriginal Land Council (“WRALC”). Although Mr Pappin is not an aboriginal person, he is married to an aboriginal person, Mrs Mary Pappin, and is the father of Mr Gary Pappin (‘the applicant”). He has sworn in an affidavit that in September 1986 he attended a meeting of the BLALC where the council resolved to make an application to the WRALC for the acquisition of the property, Auley Station. He testifies that the resolution expressly stated that the acquisition would be “on behalf of or to be vested in the BLALC on the condition that such an acquisition be for the sole purpose of allowing, without interference, the traditional owners of the area (Muthi Muthi) to utilise the property to continue their traditions, observances, customs and beliefs” .

4. Subsequently, he attended a meeting of the WRALC which he believes was held on 29 September 1986. At that meeting he says he presented an application to the WRALC for the acquisition of Auley Station. According to Mr Pappin, the application included a copy of the resolution of the BLALC and he conveyed to the WRALC that the purpose of the BLALC acquiring Auley Station was to provide a land base for the traditional indigenous owners of the area associated with the BLALC. He categorically states in his affidavit that at the meeting of the WRALC, in September 1986, the council resolved to purchase Auley Station in accordance with the resolution of the BLALC.

5. When challenged by Mr Robertson, who appeared on behalf of the respondent, in relation to the form of the resolution by the WRALC, in respect of the purchase of Auley Station, Mr Pappin reiterated that a vote was taken at regional level and the resolution to purchase the property on behalf of the Muthi Muthi people was accepted by the regional council.

6. In cross-examination Mr Pappin explained that when the property was acquired the members of the BLALC were Muthi Muthi people, for whom he managed the property. The secretary of the BLALC at that time was his wife, Mary Pappin, and the chairperson was his wife’s mother, Mrs Alice E Kelly. They have subsequently been “thrown out” of office.

7. Mr Pappin conceded that any local aboriginal person is able to join the BLALC. According to Mr Pappin, the Muthi Muthi people are now excluded from the BLALC.

8. In answer to a series of questions put by Mr Robertson, Mr Pappin confirmed that his recollection of the resolution of the BLALC at the time of the purchase was that Auley Station be purchased by the BLALC on behalf of the Muthi Muthi people and that the BLALC requested the regional council to purchase the property for the BLALC on behalf of the Muthi Muthi people conditional on its use for cultural activities and “all that sort of stuff”. Furthermore, he said that the resolution stated that the Muthi Muthi people have first and foremost say in relation to the running of the property. The resolution was formulated as a safeguard against “blow ins” taking over the local area. In other words, he said it was a safeguard “against what is happening now”.

9. In re-examination Mr Pappin revealed that his recollection of the resolution was assisted by a statement of its terms on a wall of the house in which he lived on Auley Station. His evidence as to the terms of the resolution is based upon the statement on the wall.

10. The statement on the wall of the house was said to be below a picture of Mr Pappin and his son, the present applicant. After the family was evicted from Auley Station at short notice all of their belongings, including the abovementioned picture and statement, were placed in the back of an open truck. Since then most papers and other items remain stored in the back of the truck and have been exposed to the weather. Some of them have been burnt. Mr Pappin made no attempt to locate any of the papers in order to answer a subpoena to produce all relevant documents held by him. He said that the statement below the picture of himself and his son was a copy of what the WRALC had decided. He believed that someone “had re-typed the resolution”. The statement had been attached to the wall for 13 or 14 years. Mr Pappin does not reside on the property where the truck is now parked. However, he did not suggest he does not have access to it.

11. Mr Pappin was employed as the manager of Auley Station from 1986 until August 1999. It is his evidence in chief that during his period of employment as the manager he “always consulted with the traditional owners (Muthi Muthi) in relation to the management of “Auley Station” and no management decision was made by me without the prior approval of the traditional owners”.

12. Mr Pappin further stated in cross-examination that up to 500 ewes, a couple of hundred lambs and, at times, up to 1500 head of stock were run on the property and that barley crops were grown for sale. The proceeds generated from the sales were used for fencing and other improvements on the property. He said the money went to the BLALC and the council then paid the bills. Other maintenance work was carried out by his sons and nephews who worked on the property without payment.

13. He gave evidence about a submission made in 1989 to the NSWALC seeking the provision of funds to enable the further development of Auley Station. He last read the submission in 1989 and had no direct recollection of its contents.

14. Although he knew that a native title claim had been lodged by his family, he had no knowledge of the details of the claim. His belief is that they are claiming for all of the Muthi Muthi people.

15. When asked by Mr Robertson whether, at the time he took possession of Auley Station as manager, he was aware that he had been appointed as manager not for the Muthi Muthi people but for the BLALC, Mr Pappin admitted that this was the case but again explained that the members of the BLALC at that time were the Muthi Muthi people.

16. Although the details of cultural use by the Muthi Muthi people were not expounded by him, Mr Pappin was adamant that the property was used for that purpose.

Mrs Mary Pappin

17. Mrs Mary Pappin is the mother of the present applicant and was the secretary of the BLALC in 1986. In her role as secretary for the BLALC she attended a meeting of the WRALC, which she believes was held on 29 September 1986. At that meeting she says she presented an application to the WRALC for the acquisition of Auley Station. In an affidavit read by the applicant, Mrs Pappin swears that it is her conscientious belief that “the resolution of the WRALC to acquire the Property known as “Auley Station” was made in the full knowledge of the resolution of the BLALC…which conditioned such an acquisition in favour of the Muthi Muthi People being the traditional indigenous owners of the area associated with The [sic] proposed land acquisition”.

18. Mrs Pappin also referred to the statement of the BLALC resolution referred to by Mr Pappin and which was displayed on the wall of her house below the picture of her son.

19. In cross-examination Mrs Pappin confirmed that she is a claimant for native title over land, including Auley Station, together with her son, the present applicant, and her mother, Mrs Kelly. She told Mr Robertson that the application is made on behalf of the Muthi Muthi people who are all of those people residing within the tribal boundary. She explained that the Muthi Muthi people are the descendants of Mrs Kelly, Mrs Kelly’s brother and three sisters.

20. During cross-examination Mr Robertson referred Mrs Pappin to the submission made to the NSWALC on behalf of the BLALC in 1989 in support of an application for funds which were intended to be utilised for the purpose of developing Auley Station. After agreeing with Mr Robertson that there was no mention of the purchase of Auley Station being on behalf of the Muthi Muthi people in the submission, she explained that the NSWALC already knew that the people wanted the property for future generations for cultural purposes. It was represented to the NSWALC in terms that the funds were required by the BLALC. She also agreed that no mention was made in the submission that the Auley Station land had cultural significance, although it did refer to funds in connection with a proposed cultural resource centre. At the time of the submission the BLALC was made up of Muthi Muthi people and Mrs Pappin says that there is no doubt in her mind that the property was held for the Muthi Muthi people. She can see no reason why a council would purchase land unless it is held for the traditional tribal people.

21. She agreed that she intended to convey in the submission for funding that the money, if made available, would be for the benefit of all aboriginals in the area, not just the Muthi Muthi people. However, she reiterated that in 1986 the only members of the BLALC were Muthi Muthi people. In her view all aboriginal people would know that the purpose of acquiring land was to enable local people to use it for traditional purposes. Therefore, it was not necessary to advise the NSWALC that the purpose of the funding was to provide a facility for the Muthi Muthi people.

22. Notwithstanding her position on the BLALC, Mrs Pappin could not explain what happened to the books of the council after she ceased being an officer in 1990 except to say that they were sent to Broken Hill.

23. She conceded that the native title claim in respect of Auley Station did not originally state in terms that it was made on behalf of the Muthi Muthi people. It was subsequently amended to make that clear. However, she nevertheless asserts that the native title claim has always been about the interests of the Muthi Muthi people and that Auley Station is part of the Muthi Muthi people lands. The native title claim has been made for the purpose of protecting those lands for the Muthi Muthi people.

24. The cultural significance of Auley Station to the Muthi Muthi people is, according to Mrs Pappin, a special place where the people went to do certain things. It contains resources sustainable for the Muthi Muthi people as well as a connection to the river which was used daily by the Muthi Muthi people.

25. In re-examination Mrs Pappin told the Court that there was a consideration of the return of a skeletal collection, known as the Murray Black collection, from the Victorian Museum, prior to the purchase of Auley Station. The collection was subsequently handed to Mrs Pappin by the museum in Canberra. The Murray Black collection has been re-buried at Auley Station. Mrs Pappin says that when this was done it was with full knowledge of the BLALC resolution that the property was to be held for the benefit of the Muthi Muthi people. She was entrusted with the remains by her “mob” for the rest of her life. She knew it would be safe to bury the remains on Auley Station as it was Muthi Muthi land. She claims that the Murray Black collection would not have been returned if Auley Station had not been purchased.

Mrs Alice Ellen Kelly

26. The Court has been told that Mrs Alice Ellen Kelly is the mother of Mrs Pappin. Mrs Kelly has sworn an affidavit which was formally read over the objection of the respondent on the basis that Mrs Kelly was not called for cross-examination. The Court does not propose to give the facts deposed to by Mrs Kelly, in relation to the BLALC meeting which took place in September 1986, significant weight. Although reasons for Mrs Kelly being unavailable were given from the bar table during the hearing, no formal evidence was led which would enable the Court to grant leave to use it. A purported medical certificate attesting to the present state of health of Mrs Kelly was submitted with the applicant’s written submission in reply. The respondent did not raise a formal objection to the admission of the medical certificate. Nevertheless, the evidence remains untested in a relevant sense. Mrs Kelly was Chairperson of the BLALC in 1986. Without the assistance of any written record she swears that the BLALC resolved to make an application to the WRALC for the acquisition of Auley Station on behalf of or to be vested in the BLALC on the exact condition recited by Mr Pappin and set out in par 3 hereof.

Mr Gary Jean Pappin (the applicant)

27. The applicant swore an affidavit on 2 May 2001 whereby he confirms that Auley Station has been used since the time of purchase to carry out traditions and customs of the Muthi Muthi people. He was not required for cross-examination. He was not involved in any of the events which took place at the time of the purchase of the property.

Mr William Bates

28. Mr William Bates was the first witness called by the respondent.

29. From 1984 Mr Bates was the secretary of the WRALC and the state councillor for the region on the NSWALC. As secretary of the WRALC he had custody of its books and papers and was responsible for taking minutes at meetings and carrying out other duties, in accordance with the Aboriginal Land Rights Act and the regulations and the directions of the WRALC. Although his recollection was not clear in relation to the actual date when he ceased to be secretary of the WRALC there is no doubt that he held that position at the relevant time in September 1986. He was present at the meeting of the WRALC on 29 September 1986 at which he says Darryl Pappin made an application on behalf of the BLALC for the WRALC to purchase Auley Station. He swears that he has no recollection of any mention by Mr Pappin that it was to be a condition of the purchase “that such an acquisition be for the sole purpose of allowing without interference, the traditional owners of the area (Muthi Muthi) to utilise the property to continue their traditions, observances, customs and beliefs…” . He told the Court that a condition in the form referred to by Mr Pappin would have been so unusual that he would have remembered it “vividly” . His recollection is that Auley Station was purchased as an investment working property on behalf of the BLALC as a step towards its self-determination. If the condition proposed, as alleged by Mr Pappin, had come forward Mr Bates would have strongly opposed its adoption because of his belief that the Aboriginal Land Rights Act does not discriminate between members of a local aboriginal land council who reside in the local council area or have an association with the area and who may not be traditional owners and those members, on the other hand, who may be traditional owners. He even goes so far, in his affidavit, as to say that he would have considered such a condition to be unlawful and, as secretary of the WRALC, he would have advised the council to seek legal advice. Furthermore, he swears he would have certainly drawn it to the attention of the NSWALC of which he was a councillor at the time.

30. Mr Bates was directly involved in the negotiations with Mr and Mrs Goudie, the vendors of Auley Station, together with the volunteer research officer for the WRALC, Mr Peter Thompson. Mr Bates was responsible for instructing the solicitor acting for the WRALC on the purchase of Auley Station.

31. Mr Bates referred to his long experience with and close involvement in aboriginal affairs for over two decades, particularly with the establishment of the land council movement in New South Wales. In his affidavit he says that “Any attempt to stop a Land Council from dealing with its land in the best interest of all members would have brought about a vigorous and lengthy debate and the attempt would, in my opinion, have failed…”.

32. Mr Bates produced a copy of a letter written on behalf of the WRALC over his signature as secretary. The letter dated 3 November 1986 made a recommendation that the application from the BLALC, for the acquisition of Auley Station, be endorsed by the NSWALC and that the WRALC land purchase funds be spent to acquire the property. The letter provided details of the property, a description of the vendors and the price upon which the parties had agreed. The letter makes no reference to any special conditions.

33. In cross-examination Mr Bates was not able to say where the minutes and other records of meetings of the WRALC are now kept. Although he was sure that he was a councillor of the WRALC until 1991, as I have already mentioned, his recollection of the actual date when he ceased to be secretary is not so concise.

34. Mr Bates recognised that following the purchase of Auley Station the BLALC were responsible for the day to day management of the property and any decisions made in that regard were free of any involvement of the WRALC.

35. The last time that Mr Bates saw the documents relating to the business of the WRALC was in 1987, after they had been delivered to the Broken Hill office of the Aboriginal Legal Service.

36. Mr Bates is not able to recall whether the application by the BLALC to the WRALC was ever produced to the NSWALC either before or after amendments were made to the Aboriginal Land Rights Act in 1990, whereby property vested in a regional aboriginal land council was to be vested in the NSWALC as from 17 October 1990.

37. Despite intensive cross-examination by Mr Dengate, who appeared as an agent on behalf of the applicant, Mr Bates could not be persuaded that the WRALC would have accepted a condition in the terms outlined by Mr Pappin. The whole concept of the Aboriginal Land Rights Act, so far as Mr Bates understood it, was that if a regional council accepted an application from a local council it was referred to the NSWALC. The money was then provided by pooled funds held by the NSWALC. The purchase took place in the name of the regional council. Any question relating to the management of the land and who was entitled to occupy it was left to the local land council. Membership of a local land council is not restricted and as it is recognised that aboriginal people move around, he says, it is not essential for a person to have traditional ties to the land in order to be eligible. It is accepted that in order to be a member of a local council a person must be living in the area for a certain period of time and have an association with the area. According to Mr Bates, whether or not a person becomes a member of the local land council is a matter within the discretion of the local land council.

38. Mr Bates was not able to recall the text of any resolution recorded in the minutes at the time of the application for the purchase of Auley Station or indeed that there were any minutes at all. He expected that minutes would have been taken. As far as he is concerned the intention at the time was that the property be purchased for the BLALC. If the BLALC, as the local council, had decided to transfer the property over to the Muthi Muthi people then, in Mr Bates opinion, there was nothing to stop them from doing so after the property had been transferred to the BLALC. Nevertheless, he does not believe that the conditions proposed by Mr Darryl Pappin could have been imposed at the time of purchase.

Mr Neville Murray

39. Mr Neville Murray is currently a member of the BLALC and has been a member since its inauguration. In 1986 he was one of the elected BLALC representatives to the WRALC, together with Darryl Pappin.

40. During cross-examination it became apparent that Mr Murray now lives on Auley Station and is the unpaid caretaker of the property. In return for looking after the property he occupies the house rent-free.

41. To the best of his knowledge, at the time of purchase the BLALC had no funds of its own and that for Auley Station to be purchased it was necessary to make the application through the WRALC in order to gain access to pooled funds from other councils.

42. Mr Murray had no direct recollection of the terms of the resolution by the BLALC when it decided to seek the purchase of Auley Station. Mr Murray swears that he has no knowledge of the condition referred to by Mr Pappin and he has no recollection of any discussion in respect of such a condition. When the application to purchase Auley Station on behalf of the BLALC was presented to the WRALC by Mr Pappin, Mr Murray says there was no mention of a condition and that no conditions were discussed before the resolution to purchase Auley Station was determined.

43. Mr Murray recalls that the application for the purchase of Auley Station was dealt with at a meeting of the WRALC at its office in Argent Street, Broken Hill.

44. He remembers only himself and Mr Pappin attending that meeting as the representatives of the BLALC. He could not remember whether Mrs Pappin attended the meeting but he believes she did not. He thinks that Mr and Mrs Pappin and Mrs Kelly attended the meeting of the BLALC in 1986.

45. Although he recalls seeing the application made by the BLALC to the WRALC, Mr Murray could not recall whether any minutes were attached to the application. If they were, he says, he did not see them.

Mrs Gloria Jean Murray

46. Mrs Gloria Jean Murray is presently the chairperson of the BLALC. In an affidavit read to the Court she says she has searched the office of the BLALC and, other than a copy of a letter from the WRALC to the NSWALC dated 3 November 1986 and a copy of a notice of a meeting of the BLALC to be held on 17 May 1991, she has not found any records for the period before her first election as chairperson of the council in 1991. The notice of meeting, which in itself bears no present relevance to the purchase of Auley Station apart from noting the proposed items of business, namely, “Transfer of Deeds of “Auley” to Local Land Council” and “Management of “Auley” Station” , was handed to her by another person. She cannot remember who handed the document to her although it is her understanding that Mr Murray found it at the residence on Auley Station. The letter dated 3 November 1986 is otherwise in evidence as the letter from the WRALC to the NSWALC making the recommendation that the NSWALC endorse the proposal that land purchase funds be spent to acquire Auley Station at Balranald “[i]n accordance with Section 20(b) of the Act”.

Further documentary evidence

47. A memorandum of transfer, pursuant to the Real Property Act 1900 (“the Real Property Act”), dated 4 September 1987, from R.W. and H.L. Goudie to the WRALC specifically states that the transferee is the WRALC “for and on behalf of THE BALRANALD LOCAL ABORIGINAL LAND COUNCIL”. Following registration of the transfer the respective certificates of title described the registered proprietor in the same manner.

48. Part of the land is held pursuant to Western Lands Leases No. 1108 and 1307. The certificates of title in respect of that land originally referred only to “the Western Regional Aboriginal Land Council”. In 1987 the WRALC issued a media release reporting the purchase of Auley Station. The following relevant statements are made:-


THE PROPERTY CALLED AULEY STATION WAS BOUGHT FOR THE BALRANALD LOCAL ABORIGINAL LAND COUNCIL. IT FOLLOWED A SUBMISSION TO THE REGIONAL LAND COUNCIL 12 MONTHS AGO.
….

Mary Pappin, secretary of the local council, says the Auley purchase will give her people a great deal of heart. “They’ve been patient for many years, wanting their own place. Well we’ve got one now and we plan to keep it.”

Mary traces her ancestry to the Mutti Mutti people, one of the tribes who lived along the Murrumbidgee and Murray Rivers. She has followed with keen interest recent efforts by the Western and Wiradjuri Regional Land Council to seek the return of the Murray Black collection. Over 200 of these remains are said to belong to her tribe, from the Lake Benanee area.

“I’ve been to Canberra, told the government what I think, why the remains should be sent back to the communities,” she says.

There are many important sites around Balranald, marking the history of the Mutti Mutti people.

49. It appears not to be disputed that the Murray Black collection is now re-buried on Auley Station.

50. In October 1990, by reason of cl 11 Pt 3 of Sch 4 of the Aboriginal Land Rights (Amendment) Act 1990, all property vested in a regional aboriginal land council was vested in the NSWALC.

51. In August 1999 the NSWALC transferred the title of Auley Station to the BLALC. New certificates of title have been issued by the Registrar General in the name of the “Balranald Local Aboriginal Land Council” , without qualification. Attention is directed to the provisions of s 40, s 41, s 42, s 44 and s 45 of the Aboriginal Land Rights Act in the second schedule to each of the new certificates of titles issued following the transfer of title to the BLALC.

52. On 23 November 1999 the NSWALC wrote to Mr Darryl Pappin advising him that ownership of Auley Station had been transferred to the BLALC as of 12 August 1999. Furthermore, with regard to his employment, he was advised that his services were no longer required by the NSWALC. He was advised to vacate the property immediately “or at a time agreed by the Balranald LALC” . Mr Pappin was notified that on confirmation from the BLALC that he had vacated the property a redundancy payment would be paid to him. Mr Pappin had been engaged by the NSWALC, pursuant to a Contract of Employment dated 20 April 1999, as farm foreman for a period of 12 months. A copy of the Contract of Employment is in evidence.

53. It is not in dispute that Mr Pappin and his family were evicted from Auley Station early in 2000 after a hearing in the Residential Tenancy Tribunal.

The applicant’s case

54. The applicant’s case is entirely dependant upon the Court accepting the evidence of the witnesses that proclaim the conditional recommendation for purchase by the BLALC and the acceptance of that condition by the WRALC and the NSWALC.

55. The only documentary evidence produced, namely the letter from the WRALC to the NSWALC dated 3 November 1986 recommending that the NSWALC endorse the proposal to purchase Auley Station and a copy of the minutes of the 25 th meeting of the NSWALC in December 1986 showing that the NSWALC endorsed the purchase together with the necessary stock and machinery, do not make any reference to any conditions. The formal agreement for the sale of land made on 10 December 1986 is equally silent on the subject of any condition that the land is purchased on behalf of the Muthi Muthi people. There is no dispute and the records confirm that the purchase was made on behalf of the BLALC.

56. The applicant contrasts the emphatic recollection of Mr and Mrs Pappin and Mrs Kelly with the otherwise vague and imprecise evidence of the respondent’s witnesses. The Court finds that the claimed concise recollection of the exact words of the alleged condition, nearly 15 years later, is unlikely to be a true reflection of the actual recollection of the witnesses in that respect. The Court accepts that Mr Pappin and Mrs Pappin believe that they were acting in the interests of the Muthi Muthi people. It is compelling that none of the witnesses called by the respondent have any recollection of a condition being proposed. Although his recollection was unclear and sparse in respect of some of the details about which he was questioned, Mr Bates was adamant that no condition was proposed and indeed if it was it would have been rejected for the reasons he gave. The strength of his belief and opposition to such a condition assists his recollection to the extent of asserting the negative position taken by the respondent, namely, that no condition was proposed or accepted. Mr Murray’s recollection of the events is not sufficiently reliable for the Court to reach any conclusion based upon it.

57. The terms of the letter dated 3 November 1986 and the subsequent submission made by the BLALC to the NSWALC in support of an application for funds in 1989, together with the active commercial use of the property under the management of Mr Pappin, provide support for the proposition that the reason for purchasing Auley Station was for the BLALC to use it as an active farming and grazing enterprise.

58. It is difficult to categorise as an oversight the failure by Mrs Pappin to mention in the native title claim, before it was amended, that the land was held on behalf of the Muthi Muthi people, if the matter was of such fundamental importance at the outset.

59. The evidence does not lead to the conclusion that there is any sinister motive behind the failure to produce the records of the WRALC. It is curious, however, that neither Mr Pappin nor Mrs Pappin made even a cursory attempt to search for documents, in particular, the statement of the resolution that, until recently, was on the wall inside the front door of the Auley Station homestead. It is reasonable to assume that after the documents were thrown into the back of the truck and having thereafter been exposed to the weather for several months their condition has deteriorated. Nevertheless, no effort was made to check their condition, notwithstanding the receipt of a subpoena to produce them. The Court is entitled to assume that even if the documents were legible and had been produced they would not have enhanced the applicant’s case. Alternatively, they never existed in the first place ( Jones v Dunkel and Another (1958) 101 CLR 298; Allen v Tobias and Another (1958) 98 CLR 367 at 375).

60. The actions of the BLALC, such as they are known to the Court, and the Pappin family since 1986, do not discount the prospect that there was an underlying intention to hold the land for the Muthi Muthi people. The difficulty is that if there was such an intention it has never been made manifest in any formal way by a means that the Court can recognise as legally enforceable.

61. Even though records for the regional council were not produced, there is at least proof of the recommendation made by the WRALC to the NSWALC and the resolution by the NSWALC to purchase the property.

62. The Court appreciates the weight of the submission, made by Mr Dengate, that there is a real distinction between regarding land as being held on behalf of all aboriginals and holding land on behalf of a particular group or tribe. As I have already said there can be no doubting the sincerity of the belief held by Mrs Pappin and her immediate family that the arrangements made in 1986 were intended to be for the benefit of the Muthi Muthi people, who at that time were represented by the BLALC.

63. The statutory changes that have occurred since have coincidently resulted in the land now being vested in the BLALC. That process, however, has not recognised, nor has it taken cognisance of, any perceived interest of the Muthi Muthi people.

64. The re-burial of the Murray Black collection on the property may well attach significance to the lands for the Muthi Muthi people. However, that does not of itself change the status of the holding of the title by the BLALC, at least in the present context.

65. In reply, Mr Dengate made reasoned and logical submissions in respect of the object of the Aboriginal Land Rights Act and its recognition of the importance placed upon land by the aboriginal people. The Court does not, and in the light of the various second reading speeches when the bill and subject amendments were introduced cannot, cavil with the strength of the submissions. The object of making land available for use by the local aboriginal population has been achieved in the present case whereby the land is now not only held for but actually vested in the BLALC as the registered owner. If some attempt had been made to exclude the local aboriginal population from Auley Station then there would be real substance in the applicant’s case. Unfortunately for the applicant, as a representative of the Muthi Muthi people, on the balance of probabilities the evidence does not support the specific interest claimed for that particular tribal group.

66. It is not only the respondent that has an onerous task to prove a negative in these proceedings. The applicant has an equally onerous task to prove the existence of the supporting facts in the absence of even one piece of corroborating written material.

67. If Mrs Pappin is right, as she claimed, in that it was unnecessary to specifically refer to the interests of the Muthi Muthi people when requesting the NSWALC to provide the necessary funds because it was understood to be for that purpose by all the relevant people, it is significant that, apart from the members of the Pappin family, no independent person has given evidence to that effect. The evidence of Mr Bates and his emphatic belief that no condition in the terms alleged would have been accepted is important in this respect.

The legislation

68. In 1986, s 38(1) of the Aboriginal Lands Right Act provided that “An Aboriginal Land Council may purchase…or hold any property or may acquire property by gift inter vivos, devise or bequest” .

69. Section 38(2) and s 38(3) of the Aboriginal Land Rights Act provided as follows:-


(2) An Aboriginal Land Council may agree to the condition of any gift, devise or bequest to it, and the rule of law relating to perpetuities does not apply to any condition to which the Council has agreed under this section.

(3) Property acquired by an Aboriginal Land Council subject to a condition to which the Council has agreed shall not be dealt with by the Council except in accordance with the condition.



70. Mr Robertson contends that the acquisition referred to in subsection (3) refers back to “acquire property by gift inter vivos, devise or bequest” in subsection (1). Furthermore, “a condition to which the Council has agreed” referred to in subsection (3) refers back to “the condition” mentioned in subsection (2). If that purposive approach is taken to the construction of the subsections, then, in the absence of a gift inter vivos, devise or bequest, no question of acquisition “subject to a condition” arises.

71. However, if the section is literally construed, Mr Robertson argues that it is only the Aboriginal Land Council which actually acquires the property that can agree to the condition.

72. Section 12(b) of the Local Aboriginal Land Rights Act provided that a Local Aboriginal Land Council shall have the function of the making of applications, in writing, to the Regional Aboriginal Land Council for the acquisition, by the Regional Aboriginal Land Council, of land on behalf of or to be vested in the Local Aboriginal Land Council.

73. Pursuant to s 20(1)(b), a Regional Aboriginal Land Council had the function of the consideration of, and the making of recommendations, in writing, to the NSWALC for the funding of claims to land or purchases of land by the Regional Aboriginal Land Council on its own behalf or on behalf of or to be vested in a Local Aboriginal Land Council. Further, pursuant to s 20(1)(b1), a Regional Aboriginal Land Council had the function of the purchase of private lands on its own behalf or on behalf of or to be vested in a Local Aboriginal Land Council.

74. Apart from the function of the holding of lands vested in the council, a Local Aboriginal Land Council was not given the function of the purchase of private lands.

75. The facts in the present case show that the BLALC made an application to the WRALC pursuant to s 12(b) of the Aboriginal Land Rights Act and that the WRALC then made a recommendation to the NSWALC pursuant to s 20(1)(b), followed by the purchase of Auley Station on behalf of the BLALC pursuant to s 20(1)(b1).

76. Even if s 38 entitled the BLALC to purchase Auley Station, that option was not pursued. The power for the BLALC to purchase private lands, previously contained in s 12(b), was deleted by amendments which came into force in 1986. The Aboriginal Land Rights (Amendment) Act 1986 was assented to on 2 May 1986.

77. At all relevant times s 7(2) of the Aboriginal Land Rights Act required the secretary of a Local Aboriginal Land Council to list on its roll the names and addresses of those adult Aborigines who:-


(a) reside within that area and who have requested in writing that they be enrolled as members of the Local Aboriginal Land Council; or

(b) have an association with that area and who, upon application made in writing, have been accepted by a meeting of that Council as members.

78. Pursuant to s 6(3) of the Aboriginal Land Rights Act, all adult Aborigines listed on the roll shall be members of the Local Aboriginal Land Council for that area.

79. Accordingly, the legislation anticipates that membership of the BLALC would not be confined to only those aboriginal people who have traditional links to the land in the area.

80. Prior to the October 1990 amendments to the Aboriginal Land Rights Act, the BLALC could have changed the use of any land vested in it with the approval of the WRALC pursuant to s 40(2) and s 40(3) of the Aboriginal Land Rights Act. However, at no relevant time, in respect of the present dispute, did the WRALC transfer the land acquired on behalf of the BLALC to the local council notwithstanding it had power to do so pursuant to s 40(5A). The land is now vested in the BLALC as a consequence of the later amendment to the Aboriginal Land Rights Act (cl 11 Pt 3 of Sch 4 of the Aboriginal Land Rights (Amendment) Act 1990 and s 40A(1) of the Aboriginal Land Rights Act).

81. It is the applicant’s case that when the BLALC resolved to make the application to the WRALC for the acquisition of Auley Station, it was implementing the wishes of its members with respect to the management, use and control of lands and the establishment and operation of enterprises as a function pursuant to s 12(c) of the Aboriginal Land Rights Act. This, Mr Dengate says, is confirmed by the terms of the application made by the WRALC to the NSWALC which referred to the purchase of farm machinery at a price then yet to be determined and the subsequent submission made in 1989 seeking funds for the further development of Auley Station.

82. In Leros Proprietary Limited v Terara Proprietary Limited and Another (1991) 174 CLR 407 at 419, Mason CJ, Dawson and McHugh JJ neatly summarised the principle of indefeasibility of title registered under the Real Property Act in a joint judgment addressing provisions to the same effect in the equivalent Western Australian legislation as follows:-

It is an incident of indefeasibility of the title of the registered proprietor not only that he or she holds free from prior unregistered interests, except those specified in s. 68, but also that he or she has the capacity to transfer a title to the interest of which he or she is proprietor to a successor, free from such unregistered interests. In this respect, the operation of the Act is similar to the operation under the general law of the doctrine of the bona fide purchaser for value who acquires the legal estate without notice of a prior equitable interest. The acquisition of the legal title by such a purchaser in those circumstances defeats the prior equitable interest in the sense that the interest is destroyed. Thus a subsequent purchaser with notice of the equitable interest, who purchases from the first purchaser, is not bound by the interest. If it were otherwise, a bona fide purchaser might be unable to deal with his or her property. The sale of the property would be clogged.

83. Section 42 is the relevant section in the NSW Real Property Act.

84. It is the respondent’s position that even if there was in fact a condition that falls within s 38(3) of the Aboriginal Land Rights Act, which of course is denied, then the BLALC now holds the land free of that condition. Mr Robertson points out, correctly in the Court’s opinion, that a condition, even in the form claimed by the applicant, does not fall within any of the exceptions listed in s 42(1)(a), (b), (c) or (d) of the Real Property Act.

85. The relief that the applicant is seeking does not extend to rectifying the title to the land in any way. The land is already held by the BLALC as the registered proprietor. However, the applicant is nevertheless seeking relief that would recognise an estate or interest which is not recorded on the folio of the Register.

Conclusion

86. In written submissions made before Cowdroy J in the earlier interlocutory proceedings and re-submitted before the Court at the final hearing, the applicant claims that the land is held under a fiduciary obligation to the Muthi Muthi people, pursuant to an interest in the nature of a trust. In the absence of corroborating evidence, establishing the express terms of the condition proposed by the BLALC and its acceptance by both the WRALC and the NSWALC, there is unlikely to be a justification for upholding the applicant’s argument that an express trust existed between the WRALC and the BLALC or, even, that the NSWALC and the BLALC together or individually acted in the capacity of a “constructive trustee” and as such were under a fiduciary obligation to the Muthi Muthi people. It may follow logically from that determination, if made, that there is no relationship between any council and the Muthi Muthi people, whereby they would be entitled to claim equitable remedies for breach of fiduciary obligations or otherwise. Even if this Court had jurisdiction to make such a finding, which I doubt, clearly it is not necessary to do so on this occasion in order to determine the issues within jurisdiction.

87. The findings of fact make it unnecessary for the Court to further consider the question of whether the term “acquired”, as used in s 38(3) of the Aboriginal Land Rights Act, means “acquired by gift, devise or bequest”. Cowdroy J left this question open after the earlier hearing in this matter ( Pappin v Balranald Local Aboriginal Land Council [2000] NSWLEC 263, unreported), when the respondent sought an order for summary dismissal .

88. The same findings of fact mean that the application for a declaration in the terms claimed by the applicant, Mr Gary Jean Pappin, must be dismissed.

89. The Court finds that the applicant has not proved on the balance of probabilities that the WRALC or the NSWALC at any time accepted the condition allegedly proposed by the BLALC. It matters not that the BLALC may have moved to purchase the property in the belief or even on the condition that the land would be held in the interest of the Muthi Muthi people.

90. Even if the BLALC did so believe, the failure to communicate the condition or to achieve its acceptance by the WRALC or the NSWALC, meant that the purpose was not achieved. Furthermore, the Court is not satisfied beyond reasonable doubt, in the absence of any documentary support, that the BLALC formally adopted or pursued the condition. Section 42 of the Real Property Act has effect.

Orders

91. The Court makes the following orders:-


1. Application dismissed.

2. Costs reserved.
3. The exhibits may be returned.