Re Alcoota Land Claim No 146
[1998] FCA 281
•30 MARCH 1998
FEDERAL COURT OF AUSTRALIA
ABORIGINAL LAND RIGHTS - application made to ascertain traditional Aboriginal owners of land and for recommendation by Aboriginal Land Commissioner that land be granted to Aboriginal traditional owners - inquiry being conducted by Aboriginal Land Commissioner to ascertain traditional Aboriginal owners of land - estate or interest in land held by or on behalf of Aboriginals by Aboriginal Corporation - consent of Aboriginal Corporation to making of application required - whether consent given by Aboriginal Corporation or by its administrator - whether consent may be withdrawn.
ABORIGINAL CORPORATIONS - appointment of administrator - means of appointment - validity of appointment - powers of administrator - whether administrator has power to consent to application under Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) - applicability of ‘indoor management rule’ to consent apparently given - form of consent - circumstances of consent in issue - means of termination of appointment of administrator - when cancellation of appointment of administrator took effect.
PRACTICE AND PROCEDURE - questions of law referred to Court for determination by Aboriginal Land Commissioner - stated case - whether referral appropriate when issues of fact not fully resolved - power of Court to draw inferences of fact from stated case - extent of power - whether questions of law should be answered in circumstances.
Aboriginal Councils and Associations Act 1976 (Cth) s 46(4), s 71, s 72, s 73, s 74, s 75, s 77D, s 77E
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) s 50, s 54D
Federal Court Rules O 50
Brisbane City Council v The Valuer-General for the State of Queensland (1978) 140 CLR 41 - Appl
Windsor Refrigerator Co Ltd v Branch Nominees Ltd [1961] Ch 375 - Appl
Allen v Gulf Oil Refining Ltd [1981] AC 1001 - Cited
Rocklea Spinning Mills Limited v Anti-Dumping Authority (1995) 56 FCR 406 - Cited
Tilling v Whiteman [1980] AC 1 - Cited
Aluminium Products (Qld) Pty Ltd v Hill [1981] Qd R 33 - Cited
White v Ridley (1978) 140 CLR 342 - Cited
Chippendale Printing Co Pty Ltd v Commonwealth (1995) 17 ACSR 328 - Cited
Swift Australian Co (Pty) Limited v South British Insurance Co Ltd [1970] VR 368 - Appl
Hatfield v Cummins & Campbell Ltd [1912] St R Qd 85 - Cited
Australian Commonwealth Shipping Board v Federated Seamen’s Union of Australasia (1925) 36 CLR 442 Cited
Burgess v Morton [1896] AC 136 - Cited
Schumacher Mill Furnishing Works Proprietary Ltd v Smail (1916) 21 CLR 149 - Cited
Pearce v Federal Commissioner of Taxation (1978) 20 ALR 354 - Appl
R v Rigby (1956) 100 CLR 146 - Cited
Fowles v Eastern and Australian Steamship Co Ltd (1913) 17 CLR 149 - Cited
Universal Cargo Carriers Corporation v Citati (No 2) [1958] 2 QB 254 - Cited/Appl
Re Maurice; Ex parte Attorney-General for the Northern Territory (1987) 17 FCR 422 - Cited
Royal British Bank v Turquand (1856) 6 F & B 327 - Disd/Appl
Northside Developments Pty Ltd v Registrar-General (1990) 170 CLR 146 - Appl
Morris v Kanssen [1946] AC 459 - Cited
Johns v Connor (1992) 35 FCR 1 - Cited
THE ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) ACT 1976 AND THE ALCOOTA LAND CLAIM NO 146
No DG 10 of 1996
NORTHROP, COOPER AND MANSFIELD JJ
ADELAIDE (HEARD IN DARWIN)
30 MARCH 1998
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
DG 10 of 1996
IN THE MATTER OF:
THE ABORIGINAL LAND RIGHTS
(NORTHERN TERRITORY) ACT 1976AND IN THE MATTER OF:
THE ALCOOTA LAND CLAIM NO 146
JUDGES:
NORTHROP, COOPER AND MANSFIELD JJ
DATE OF ORDER:
30 MARCH 1998
WHERE MADE:
ADELAIDE (HEARD IN DARWIN)
THE COURT ORDERS THAT:
The questions of law referred to it under s 54D, Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) be answered as follows:
Question 1
Does a person who holds a native title right or interest in relation to the land the subject of Pastoral Lease No 1032 thereby hold an estate or interest within the meaning of:
(a) the phrase ‘estates and interests’ in section 50(1)(a); and
(b) the phrase ‘an estate or interest’ in section 50(2C)of the Aboriginal Land Rights (Northern Territory) Act 1976?
Answer: Decline to answer
Question 2
Does a person who takes the benefit of the reservation in Pastoral Lease No 1032, expressed as a reservation in favour of ‘the Aboriginal inhabitants of the Northern Territory’, in conjunction with section 24 of the Crown Lands Act (NT) and/or section 38 of the Pastoral Land Act 1992 (NT), thereby hold an estate or interest within the meaning of:
(a) the phrase ‘estates and interests’ in section 50(1)(a); and
(b) the phrase ‘an estate or interest’ in section 50(2C)
of the Aboriginal Land Rights (Northern Territory) Act 1976?
Answer: Decline to answer
Question 3
Does the rule relating to corporations, known as the ‘indoor management rule’, or the rule in Royal British Bank v Turquand (1856) 6 E & B 327:
(a) require; or
(b) permitthe Aboriginal Land Commissioner to act on a document purporting to be a written consent, under the common seal of a corporation created under the Aboriginal Councils and Associations Act 1976, without inquiring whether the common seal has been affixed to the document in compliance with the rules of the corporation?
Answer:Decline to answer
Question 4
Was the appointment of Chris Marshall as administrator of the Alcoota Aboriginal Corporation valid, notwithstanding:
(a)the absence from the instrument of appointment of any specification of a period for which the appointment was made; and
(b)the specification in notice of the appointment published in the Centralian Advocate newspaper and the Commonwealth of Australia Gazette of the period of appointment as ending when the Registrar of Aboriginal Corporations was satisfied that it was no longer necessary for the administrator to conduct the affairs of the Alcoota Aboriginal Corporation?
Answer: Yes
Question 5
Does:
(a)the admission of members of an Aboriginal corporation;
(b)the execution of documents by the affixing of the common seal of an Aboriginal corporation and the signature of the administrator;
(c)the giving of consent in writing of an Aboriginal corporation to a traditional land claim under section 50(2C) of the Aboriginal Land Rights (Northern Territory) Act 1976
exceed the powers of an administrator appointed pursuant to section 71 of the Aboriginal Councils and Associations Act 1976?
Answer: Decline to answer
Question 6
Did the appointment of Chris Marshall as administrator of the Alcoota Aboriginal Corporation come to an end:
(a) on 22nd November 1995;
(b) in February 1996; or
(c) on 8th March 1996?
Answer: (c) On 8th March 1996
Question 7
Was the common seal of the Alcoota Aboriginal Corporation validly affixed to the document dated 6th March 1996, which expressed the consent of the Alcoota Aboriginal Corporation to the making of the land claim application dated 18th March 1993 over all the land comprised in Pastoral Lease No 1032?
Answer:Decline to answer
Question 8
Was the document dated 6th March 1996, which expressed the consent of the Alcoota Aboriginal Corporation to the making of the land claim application dated 18th March 1993 over all the land comprised in Pastoral Lease No 1032, a valid consent in writing to the making of the application in the Alcoota Land Claim No 146, for the purposes of section 50(2C) of the Aboriginal Land Rights (Northern Territory) Act 1976?
Answer:Decline to answer
Question 9
Did the withdrawal of the consent of the Alcoota Aboriginal Corporation on 20th may 1996 deprive the Aboriginal Land Commissioner of power to continue to hear the Alcoota Land Claim No 146?
Answer: Decline to answer
Question 10
Was the presence on the land the subject of the Alcoota Land Claim No 146, without the consent of the Alcoota Aboriginal Corporation, of:
(a) the Aboriginal Land Commissioner;
(b)the persons assisting the Aboriginal Land Commissioner in the conduct of the inquiry; and
(c) the applicants and their representatives
justified by the provisions of:
(i) section 51; or
(ii) section 27(1)
of the Aboriginal Land Rights (Northern Territory) Act 1976?
Answer:Decline to answer
Question 11
Was the presence on the land the subject of the Alcoota Land Claim No 146 of:
(a) the Aboriginal Land Commissioner;
(b) the persons assisting the Aboriginal Land Commissioner in the conduct of the inquiry; and
(c) the applicants and their representatives
on or after 22nd May 1996:
(i) a trespass;
(ii) illegal?
Answer: Decline to answer
Question 12
Was the conduct of the inquiry into the Alcoota Land Claim No 146:
(a) up to and including 21st May 1996; and
(b) on and after 22nd May 1996a valid exercise of the powers of the Aboriginal Land Commissioner, pursuant to section 50(1)(a) of the Aboriginal Land Rights (Northern Territory) Act 1976?”
Answer: Decline to answer
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
DG 10 of 1996
IN THE MATTER OF:
THE ABORIGINAL LAND RIGHTS
(NORTHERN TERRITORY) ACT 1976AND IN THE MATTER OF:
THE ALCOOTA LAND CLAIM NO 146
JUDGES:
NORTHROP, COOPER AND MANSFIELD JJ
DATE:
30 MARCH 1998
PLACE:
ADELAIDE (HEARD IN DARWIN)
REASONS FOR JUDGMENT
THE COURT
Introduction
An Aboriginal Land Commissioner (“the Commissioner”) has reserved questions of law to the Court pursuant to s 54D of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (“the Land Rights Act”), which provides :-
“54D (1) A Commissioner may refer a question of law arising in connection with an application referred to in paragraph 50(1)(a) made to the Commissioner to the Federal Court of Australia for determination .
(2) The Federal Court of Australia has jurisdiction to hear and determine a question of law referred to it under subsection (1) and that jurisdiction shall be exercised by that Court constituted as a Full Court.
(3) Where a question of law arising in connection with such an application has been referred to the Federal Court of Australia under this section, a Commissioner shall not:
(a)make a finding to which the question is relevant while the reference is pending; or
(b)exercise the functions of a Commissioner under paragraph (1)(a) in a manner that is inconsistent with the determination of the Federal Court on the question.”
Order 50 of the Federal Court Rules applies to such a reservation :-
“1(1) A case to be stated, or a question to be reserved or to be referred for the consideration of the Court, must be in the form of a special case.
1(2) The special case must:
(a) be divided into consecutively numbered paragraphs; and
(b) state the facts concisely; and(c)annex all documents necessary to enable the Court to decide the questions raised by the special case.
1(3) The Court may draw from the facts stated and the documents annexed in the special case any inference, whether of fact or law, which might have been drawn from them if proved at a trial.”
The sufficiency or otherwise of the statement of facts by the Commissioner and whether it is appropriate or permissible for this Court to answer some or all of the questions referred is in issue. It is appropriate to refer at the outset to the general principles applicable on a case stated.
In Brisbane City Council v The Valuer-General for the State of Queensland (1978) 140 CLR 41, Murphy J, speaking of the procedure for appeal by case stated from the Land Appeal Court in Queensland, said (at 61) :-
“... The lengthy argument in this appeal concerning the effect of the case stated illustrates the disadvantage of that procedure. Except in very simple cases, it generally introduces complications which obscure the real points to be decided. Whatever its theoretical merits, in practice it is one of the worst legal techniques. Invoking the stated case procedure generally results in a legal snarl. Sometimes this is due to careless statement of the case, but often it happens because even with care it is not easy to predict which findings an appellate court will consider necessary or relevant.’
To similar effect, Lord Evershed MR said in Windsor Refrigerator Co Ltd v Branch Nominees Ltd [1961] Ch 375 of a preliminary point of law set down for hearing before trial (at 396) :-
“I repeat what I said at the beginning, that the course which this matter has taken emphasises, as clearly as any case in my experience has emphasised, the extreme unwisdom - save in very exceptional cases - of adopting this procedure of preliminary issues. My experience has taught me (and this case emphasises the teaching) that the shortest cut so attempted inevitably turns out to be the longest way round.”
In the same case, Harman LJ said (at 396) :-
“I concur, and find myself doing so with particular heartiness with reference to the last observations my Lord has made. The number of conditions he has found it necessary to use to fence the expression of this court’s opinion shows at once the undesirability of this kind of procedure. It is highly undesirable that the court should be constrained to tie itself in so many knots, and in the end merely say: ‘Well, if this was thus, then that was so’”.
The above passages, apt to describe the circumstances confronting the Court here, are but forceful statements of the attitudes of the courts to the resolution of questions of law by a procedure of special case, case stated or preliminary question and reinforce that such procedure is more often than not productive of difficulty, delay, artificiality and injustice and should be adopted cautiously and in only the clearest and simplest cases: Allen v Gulf Oil Refining Ltd [1981] AC 1001 at 1010 - 1011, 1021 - 1022; Rocklea Spinning Mills Limited v Anti-Dumping Authority (1995) 56 FCR 406 at 423; Tilling v Whiteman [1980] AC 1 at 17 - 18, 25; Aluminium Products (Qld) Pty Ltd v Hill [1981] Qd R 33 at 36 - 37, 38; White v Ridley (1978) 140 CLR 342 at 362 - 363; Chippendale Printing Co Pty Ltd v Commonwealth (1995) 17 ACSR 328 at 332 - 334. The problems inherent in these procedures are exacerbated when the Court is asked to determine questions of law on incomplete facts, or on assumptions, or in circumstances which render it impossible to answer the questions in other than a hypothetical fashion: Swift Australian Co (Pty) Limited v South British Insurance Co Ltd [1970] VR 368 at 369; Hatfield v Cummins & Campbell Ltd [1912] St R Qd 85 at 89; Aluminium Products v Hill at 36 - 37, 38; Australian Commonwealth Shipping Board v Federated Seamen’s Union of Australasia (1925) 36 CLR 442 at 448, 450 - 452, 462.
The case stated procedure ought not be adopted where there are disputed questions of fact which impinge upon the question or questions of law reserved for determination. Nor is it appropriate where the answer to the question depends upon the impact of detailed and complex findings of fact upon legal principles which are flexible in their application and therefore inextricable from those facts: Allen v Gulf Oil Refining at 1011.
The questions for the Court on a special case are, of course, questions of law and not of fact: Burgess v Morton [1896] AC 136 at 136, 141, 144; Schumacher Mill Furnishing Works Proprietary Ltd v Smail (1916) 21 CLR 149 at 151. Whilst the distinction may sometimes be a difficult one, the Court cannot properly discharge its function unless it is observed and unless there is in the stated case a sufficient foundation in fact for the determination of the question or questions of law reserved. If those pre-conditions are not met, the Court should and will refuse to answer the questions reserved.
In Pearce v Federal Commissioner of Taxation (1978) 20 ALR 354, Brennan J, as a judge of this Court, said (at 357) :-
“The question was reserved by Sangster J, at the request of the appellant before him, before evidence was received or argument heard. Necessarily the case contains no finding by his Honour as to any facts to which the question reserved could relate. The question reserved would seek merely an opinion, the effectiveness of which would depend upon the facts that remain to be determined in the future. Courts do not give opinions of that kind (see Swift Australian Co Pty Ltd v South British Insurance Co Ltd [1970] VR 368). There is a particular difficulty when the question reserved seeks in substance a mere judicial exegesis of a statutory provision unrelated to any facts. The court is then invited not to apply the statute but to devise precise synonyms for the statutory language. This is a course on which this court ought not to embark. Had there been power to reserve the question raised in the stated case we should yet have been constrained to refuse an answer. ...”
To similar effect, in Swift Australian Co v South British Finance, Winneke CJ, delivering the judgment of the Full Court of the Supreme Court of Victoria (Winneke CJ, Little and Starke JJ) said (at 369) :-
“It is established by a long line of authority that the courts will not advise parties to actions upon their rights under a hypothetical state of facts, or give to them advisory opinions, or give hypothetical decisions the effectiveness of which depends on varied states of facts which remain to be determined in the future: see Glasgow Navigation Co v Iron Ore Co [1910] AC 293; Sumner v William Henderson & Sons, [1963] 2 All E R 712, and Hole v Insurance Commissioner, [1962] VR 394.
In our opinion, the series of questions comprised in question 4 of the special case would plainly involve the Court, if it answered the same, in advising the parties as to their legal rights and obligations upon varied and alternative states of facts which may or may not hereafter be found by the tribunal of fact. To answer the questions in those circumstances would, we think, be opposed to the principle enunciated in the cases to which we have referred, a principle which we regard, if we may respectfully say so, as a salutary one.”
The function of this Court on a case stated to which O 50 r 1 of the Federal Court Rules applies, is to be contrasted in one important respect with that of courts in cases where there is not specifically conferred upon the court the power to draw inferences of fact. In the latter case, the court cannot determine questions of fact and cannot draw inferences from what is stated in the case, but is “limited to ascertaining from the contents of the case stated what are the ultimate facts, and not the evidentiary facts, from which the legal consequences ensue that govern the determination of the rights of parties”: R v Rigby (1956) 100 CLR 146 at 150 - 151. The court may not regard the reasons for judgment or decision, if annexed to and/or incorporated in the case stated, as a statement of the facts or of the evidence: Brisbane City Council v The Valuer-General at 58. However, under O 50 r 1(3) and similar provisions the court is expressly empowered to draw inferences of fact or law from the facts stated in and the documents annexed in the special case. That power has been construed narrowly as allowing a court to draw inferences only where those inferences necessarily flow from the facts stated or the documents annexed: Fowles v Eastern and Australian Steamship Co Ltd (1913) 17 CLR 149 at 196 per Gavan Duffy and Rich JJ, a special case stated pursuant to O 38 r 2 of the Supreme Court Rules (Qld), which is materially identical to Federal Court Rules O 50 r 1. In Universal Cargo Carriers Corporation v Citati (No 2) [1958] 2 QB 254, Parker LJ, speaking of the power conferred by the English equivalent of Federal Court Rules O 50 r 1 to draw inferences on a special case, said (at 264 - 265) :-
“This power to draw inferences, in my judgment, undoubtedly exists; but, as my Lord has said, it must not be used to interfere with an inference drawn by the arbitrator in the sense of substituting the court’s inference for that of the arbitrator. Also it must not be used as a convenient method of avoiding the necessity of remitting to an arbitrator. If there is any conceivable doubt as to what the arbitrator would find or what inference he would draw, then the matter must be remitted; but if, as I think is the case here, the inference is irresistible, then the court can draw its own inference.”
Before turning to deal with the case as stated by the Commissioner and the questions reserved, it is necessary to make some brief reference to the statutory context within which the Commissioner was operating.
Statutory Context
The Commissioner was exercising jurisdiction pursuant to s 50 of the Land Rights Act. That jurisdiction is administrative in character, notwithstanding that the Commissioner is, and is required by s 53 to be, a judge of this Court (or an additional or acting judge of the Supreme Court of the Northern Territory). The proceedings conducted by the Commissioner, if they be properly so-called, are inquisitorial, not adversarial (Re Maurice; Ex parte Attorney-General for the Northern Territory (1987) 17 FCR 422 at 424), so that there are not before the Commissioner “parties” in the usual sense of that word when used in respect of adversarial proceedings.
Section 50 of the Land Rights Act relevantly provides :-
“50(1) The functions of a Commissioner are:
(a)on an application being made to the Commissioner by or on behalf of Aboriginals claiming to have a traditional land claim to an area of land, being unalienated Crown land or alienated Crown land in which all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals:
(i)to ascertain whether those Aboriginals or any other Aboriginals are the traditional Aboriginal owners of the land; and
(ii)to report his findings to the Minister and to the Administrator of the Northern Territory, and, where he finds that there are Aboriginals who are the traditional Aboriginal owners of the land, to make recommendations to the Minister for the granting of the land or any part of the land in accordance with sections 11 and 12;
.....
(2C)Where:
(a)an application referred to in paragraph (1)(a) has been made to a Commissioner; and
(b)it appears to the Commissioner that an estate or interest in the land is held by or on behalf of Aboriginals;
the Commissioner shall not perform, or continue to perform, a function under that paragraph in relation to the application as it relates to that land unless the Aboriginals who hold that estate or interest have, or the body which holds that estate or interest on their behalf has, consented, in writing, to the making of the application.
.....”
By s 51, the Commissioner may do all things “necessary or convenient to be done for or in connexion with the performance of his functions.”
The special case and the questions reserved
For reasons which will become apparent and so that the background to the matter may be understood, it is necessary to set out the whole special case as stated by the Commissioner :-
“1. The Alcoota Land Claim No 146 is a traditional land claim, made by application to me as Aboriginal Land Commissioner, pursuant to section 50(1)(a) of the Aboriginal Land Rights (Northern Territory) Act 1976. The application was received in the office of the Aboriginal Land Commissioner on 18th March 1993. It was lodged by the Central Land Council, on behalf of a number of persons (‘the applicants’), claiming to be traditional Aboriginal owners of the land the subject of the claim.
2. The land the subject of the claim is Northern Territory Portion 4029, known as Alcoota Station, that part of the Sandover Stock Route which lies within its boundaries, and all roads within its boundaries.
3. Northern Territory Portion 4029 is the subject of Pastoral Lease No 1032, a lease granted by the Crown in right of the Northern Territory for a term commencing on 25th June 1991 and expiring on 13th June 2010. The registered holder of that pastoral lease is the Alcoota Aboriginal Corporation. Attached hereto and marked ‘A’ is a copy of Pastoral Lease No 1032, which forms part of exhibit CLC1 in the inquiry which I am conducting into the claim. The rights of the lessee under the lease are expressed to be subject to a reservation in favour of ‘the Aboriginal inhabitants of the Northern Territory’. At the time when the lease was executed, the content of such a reservation was prescribed by section 24 of the Crown Lands Act (NT), which has since been repealed. The effect of section 24 in respect of the land the subject of Pastoral Lease No 1032 may be preserved by section 129 or section 130 of the Pastoral Land Act 1992 (NT). Section 38 of the Pastoral Land Act 1992 (NT) now prescribes the content of a reservation in a pastoral lease in favour of ‘the Aboriginal inhabitants of the Northern Territory’.
4. The Alcoota Aboriginal Corporation is an Aboriginal association, incorporated pursuant to section 46 of the Aboriginal Councils and Associations Act 1976. Annexed hereto and marked ‘B’ and ‘C’ respectively are the certificate of incorporation, dated 31st July 1992, and the rules of the Alcoota Aboriginal Corporation, which also form part of exhibit CLC1 in the inquiry. By rule 9.1 of its rules, membership of the Alcoota Aboriginal Corporation is open only to ‘those adult Aboriginal persons who are traditional owners of that land known as Alcoota Pastoral Lease (P.L. No 1032) or such other land to which the Association holds title’. In these circumstances, I have taken the view that the Alcoota Aboriginal Corporation holds its interest in Pastoral Lease No 1032 ‘on behalf of’ Aboriginal people, within the meaning of section 50(1)(a) and (2C) of the Aboriginal Land Rights (Northern Territory) Act 1976.
5. I have assumed that there are people who have native title rights and interests in the land the subject of the claim and that those interests have not been extinguished by the grant of any pastoral lease, or have at least been preserved by a reservation in any such pastoral lease. I have also assumed that there are people who would benefit from the reservation in Pastoral Lease No 1032 in favour of ‘the Aboriginal inhabitants of the Northern Territory’.
6. By instrument under seal dated 18th November 1994, the Registrar of Aboriginal Corporations (‘the Registrar’), pursuant to section 60 of the Aboriginal Councils and Associations Act 1976, appointed two persons to examine the accounts and records of the Alcoota Aboriginal Corporation and to report to him on the results of the examination. Annexed hereto and marked ‘D’ is a copy of that instrument, which became exhibit CLC2 in the inquiry.
7. On 12th December 1994, the governing committee of the Alcoota Aboriginal Corporation resolved to send a letter to the Registrar, requesting him to come to Alcoota Station to discuss the membership list for the Alcoota Aboriginal Corporation. Arthur Turner signed a letter to the Registrar in accordance with the resolution. Annexed hereto and marked ‘E’ and ‘F’ respectively are copies of the minutes of the meeting of the governing committee of 12th December 1994, containing the resolution, and the letter signed by Arthur Turner. These documents together constitute exhibit CLC3 in the inquiry.
8. By notice dated 11th April 1995, pursuant to section 71 of the Aboriginal Councils and Associations Act 1976, the Registrar stated that he considered that grounds may exist for the appointment of an administrator and called upon the Alcoota Aboriginal Corporation to show cause why an administrator should not be appointed. Annexed hereto and marked ‘G’ is a copy of the notice, which became exhibit CLC4 in the inquiry.
9. By letter dated 21st July 1995, eight persons, including Arthur Turner, requested the Registrar to appoint an administrator, ‘to come and make a list of members for the Alcoota Aboriginal Corporation, so that a proper general meeting can be held, and the business of the corporation can be done properly’. Annexed hereto and marked ‘H’ is a copy of the letter, which became exhibit CLC5 in the inquiry.
10. By instrument under seal, dated 31st August 1995, the Registrar appointed Chris Marshall to be the administrator of the Alcoota Aboriginal Corporation. Annexed hereto and marked ‘I’ is a copy of the instrument of appointment, which is part of exhibit CLC1 in the inquiry. The instrument does not specify a period for which the appointment is made.
11. Pursuant to section 72 of the Aboriginal Councils and Associations Act 1976, the Registrar published notice of the appointment of Chris Marshall in the Centralian Advocate newspaper on 6th October 1995 and in the Commonwealth of Australia Gazette No B40, on 10th October 1995. Each notice specified the period of appointment as being ‘from 31 August 1995 until such time as I am satisfied that it is no longer necessary for the Administrator to conduct the affairs of the Corporation’. Annexed hereto and marked ‘J’ and ‘K’ respectively are a copy of the advertisement in the Centralian Advocate newspaper and a copy of the notice in the Commonwealth of Australia Gazette. The former was annexure BB7 to the affidavit of Bernadette Anne Banbury, sworn on 13th May 1996, which was before me in the inquiry. The latter became exhibit CLC6 in the inquiry.
12. During his period as administrator, Chris Marshall compiled a register of members of the Alcoota Aboriginal Corporation, which became exhibit CLC7 in the inquiry, a copy of which is annexed hereto and marked ‘L’. I inferred from this list that all of the members on the register were admitted to membership on 9th November 1995, except for one, who was admitted on 21st November 1995.
13. In a notice dated 22nd November 1995, the Registrar stated that he was ‘satisfied that it is no longer necessary for an Administrator to conduct the affairs of the Alcoota Aboriginal Corporation’. He gave notice that, pursuant to section 77D of the Aboriginal Councils and Associations Act 1976, he was required to conduct an election for membership of the governing committee, ‘which will assume control of the Corporation when the appointment of the Administrator is cancelled’. A copy of the notice is annexed hereto and marked ‘M’. The notice became exhibit CLC8 in the inquiry. The notice specified 6th December 1995 as the date for the meeting at which the election would take place but, in the event, the election did not take place on that day.
14. By letter dated 16th February 1996, the Registrar advised Chris Marshall that the Registrar desired to ‘extend’ his appointment as administrator, on the terms and conditions set out in the letter. The letter invited Chris Marshall to sign, date and return a copy of the letter to signify his acceptance of ‘the extension of the contract of your appointment as Administrator ...’. The terms and conditions included a term that the contract be extended until 8th March 1996 and provisions for payment. One of the terms was:
‘The main responsibilities of the Administrator will be to continue to manage the affairs of the Corporation, to assist with arrangements for a meeting of the Corporation on 6 March 1996 to elect a new Governing Committee and Chairperson, to conduct an Annual General Meeting on the same date, and to facilitate the transfer of the control of the Corporation’s affairs to the newly elected Governing Committee.’
Chris Marshall signed and returned the copy letter as contemplated. Annexed hereto and marked ‘N’ is a copy of the letter of 16th February, which is part of exhibit CLC1 in the inquiry.
15. On 20th February 1996, Chris Marshall issued a notice of annual general meeting of the Alcoota Aboriginal Corporation. The notice advised the members that a meeting would be held on Wednesday, 6th March 1996, at a named place, immediately following the election of the new committee for the corporation, which would be conducted by the Registrar. The notice contained an agenda, which included the terms ‘decide whether consent should be given for the land claim to go ahead’ and ‘decide whether certain assets of the Corporation should be transferred to the Alcoota Aboriginal Cattle Company Pty Ltd’. Annexed hereto and marked ‘O’ is a copy of the notice dated 20th February 1996, which became exhibit CLC9 in the inquiry.
16. On 6th March 1996, at the appointed place, the Registrar conducted the election for members of the governing committee of the Alcoota Aboriginal Corporation. Nine persons were elected, including Arthur Turner as chairman. What was described as the annual general meeting was then held. Annexed hereto and marked ‘P’ is a copy of the minutes of that meeting, which were annexure BB9 to the affidavit of Bernadette Anne Banbury, to which I have referred. The minutes of the meeting record that:
‘It was unanimously resolved that consent should be given for the land claim over the pastoral lease known as Alcoota/Waite River to proceed and that the consent document read to the meeting by the ATSIC Regional manager, Richard Preece, should be executed forthwith. (Moved: Herbert Bloomfield Seconded: Dick Purvis. All in favour)’.
The minutes then record the passage of a unanimous resolution that all non-fixed assets associated with the Alcoota cattle operation should be transferred by way of gift from the corporation to the Alcoota Aboriginal Cattle Company Pty Ltd.
17. Arthur Turner has sworn an affidavit, which is part of the evidence in the inquiry, giving his account of the meeting. A copy of the affidavit is annexed hereto and marked ‘Q’. In that affidavit, Arthur Turner refers to the presence of certain named employees and officers of the Central Land Council and of ATSIC and continues:
‘27. They were talking about how the Corporation should not be running the cattle business and the Corporation should transfer all of its assets to the Cattle Company so that it could run the cattle business and so we wouldn’t be upsetting ATSIC. The meeting was organised so that before we had to vote to transfer the assets to the Cattle Company we had to say yes or no to the land claim.
28. When it came to voting for the land claim nobody said anything. There was no general consent to the land claim at the big meeting. I do not understand why the minutes of the meeting said everybody there agreed to the land claim. Nobody said or did anything to indicate that they agreed to the land claim at the big meeting.
29. I signed the consent to the land claim because I felt that I had no option but to sign the consent because they kept the issue of the transfer of assets from the Corporation to the Cattle Company behind the land claim. I thought if I did not sign the consent there would be problems with the transfer of assets and it would not go through unless I consented to the land claim. I thought that if I didn’t sign Engawala [Arthur Turner’s community] would lose everything. I signed the consent. I thought that the paper I signed also said something about transferring the assets of the cattle business to the Cattle Company but it only said that the Corporation agreed to the land claim.
30. The minutes of the meeting were brought out at a later meeting (about a week or two later) of the directors of the Cattle Company. I think Paul Mitchell from the CLC wrote them up. He read through the minutes real fast and I didn’t realise that they said that everybody agreed to the land claim. I signed the minutes of the meetings which occurred on 6 March because I was told they said what happened at those meetings but they are wrong. I don’t know why they say everybody said yes because nobody said anything.’
18. Each of Eric Penangke, Joy Tilmouth Pwerla and Dick Purvis has sworn an affidavit which was part of the evidence before me in the inquiry. In each case, the affidavit says:
‘I am a member of the Alcoota Aboriginal Corporation and was present at the general meeting of the Corporation on 6 March 1996. I did not vote to agree to the making of the Alcoota Land Claim at that meeting.’
Dick Purvis is one of those whose signature appears on the document annexed hereto and marked ‘S’. He is also the person referred to in the minutes of the general meeting of 6th March as having seconded the motion which became the resolution that consent should be given to the land claim. His affidavit does not deal at all with these matters. He was not cross-examined in the inquiry.
19. Following the general meeting, there was a meeting held of the governing committee of the Corporation. Annexed hereto and marked ‘R’ is a copy of the minutes of that meeting, which were annexure BB8 to the affidavit of Bernadette Anne Banbury. The minutes record:
‘The formal consent document in relation to the land claim was executed by Arthur Turner and Dick Purvis, in the presence of the full committee and pursuant to the unanimous decision of the members in the AGM earlier the same day. It was also signed by the Administrator, Chris Marshall.’
Annexed hereto and marked ‘S’ is the document which was executed at the meeting of the governing committee, which became part of exhibit CLC1 in the inquiry. The document bears the common seal of the Alcoota Aboriginal Corporation and the signatures of Arthur Turner, Dick Purvis and Chris Marshall. The document reads:
Alcoota Aboriginal Corporation being the Lessee of Pastoral Lease No 1032 being Northern Territory Portion 4029, hereby consents pursuant to section 50(2C) of the Aboriginal Land Rights (Northern Territory) Act 1976 to the making of the land claim application dated the 18th day of March 1993 over all the land comprised in Pastoral Lease No 1032.’
20. By letter dated 6th March 1996, addressed to Chris Marshall, the Registrar gave notice that, pursuant to section 77E of the Aboriginal Councils and Associations Act 1976, he cancelled the appointment of Chris Marshall as administrator of the Corporation, effective from the close of business on 8th March 1996. The letter advised that, from that date, the conduct of the affairs of the corporation was to vest in the governing committee. The letter also recited that, in February 1996, the Registrar was satisfied that it was no longer necessary for the administrator to conduct the affairs of the corporation and that, accordingly, pursuant to section 77D of the Act, the Registrar conducted an election 6th March 1996 to fill the offices of members of the governing committee. Annexed hereto and marked ‘T’ is a copy of the letter of 6th March, which became exhibit CLC11 in the inquiry.
21. On 13th May 1996, I commenced the inquiry into the land claim at Alice Springs. Mr Howie of counsel appeared for the applicants, Mr Hughston of counsel appeared for the Attorney-General for the Northern Territory, Mr Reeves of counsel appeared for Arthur Turner and Mr Neal of counsel appeared as counsel assisting me. On 13th and 14th May, I received evidence and heard submissions relating to two issues, namely whether there were persons other than the Crown and the Alcoota Aboriginal Corporation who had estates or interests in the land claimed and whether the Alcoota Aboriginal Corporation had consented in writing to the making of the land claim, within the meaning of section 50(2C) of the Aboriginal Land Rights (Northern Territory) Act 1976. On 15th May 1996, I ruled as follows:
(a)that the land the subject of Pastoral Lease No 1032 is alienated Crown land in which all estates and interests not held by the Crown are held by, or on behalf of, Aboriginal people;
(b)that the only estate and interest so held is the interest of the Alcoota Aboriginal Corporation in Pastoral Lease No 1032; and
(c)that the Alcoota Aboriginal Corporation has consented in writing to the making of the application in the Alcoota Land Claim No 146.
At the time, I published written reasons for my ruling. Those written reasons were subsequently revised, to eliminate style, spelling and typographical errors. Annexed hereto and marked ‘U’ is a copy of those reasons.
22. On 16th, 17th, 18th, 19th, 20th and 21st May 1996, I heard evidence in relation to the land claim at various sites on the land the subject of it. I was assisted by Mr Neal, a consulting anthropologist, two transcript recorders and monitors, my associate and my executive officer. The applicants were represented by legal officers employed by the Central Land Council and assisted by anthropologists and linguists. A number of applicants and those assisting them were camped on the land the subject of the claim. Their camp was serviced by employees of the Central Land Council and caterers. Employees of the Central Land Council also acted as drivers of vehicles, in which the applicants and those representing and assisting them travelled around the land the subject of the claim, for the purpose of participating in and being present at the inquiry.
23. After the conclusion of my sitting on 21st May, the legal advisers of Arthur Turner handed to Mr Neal a document bearing the common seal of the Alcoota Aboriginal Corporation and the signatures of a number of members of the governing committee of that corporation. Annexed hereto and marked ‘V’ is a copy of that document, which became exhibit AT3 in the inquiry. It evidences the resolutions passed at a meeting of the governing committee of the Alcoota Aboriginal Corporation on 20th May 1996, in the following terms:
‘1.The so called consent dated the 6th March 1996 was not a proper consent of the Corporation.
2. If the so called consent dated the 6th March 1996 was a proper consent of the Corporation, it is hereby withdrawn.
3. The Corporation does not consent to the land claim dated the 18th March 1993 lodged by the Central Land Council.
4. The Corporation will decide at its next committee meeting whether to give consent to the land claim dated the 16th May 1996 lodged by Paddy Webb and others.
5. The Committee authorises two Committee members to witness the affixing of the seal of the Corporation to this document.’
24. On 22nd May 1996, I heard submissions relating to two issues, namely whether the withdrawal of the consent of the Alcoota Aboriginal Corporation deprived me of power to continue to hear the land claim and whether I, those assisting me, the applicants and those representing and assisting the applicants would be trespassing on the land the subject of the land claim, if I should continue to conduct the inquiry. On that occasion, Mr Reeves announced his appearance for the Alcoota Aboriginal Corporation, as well as for Arthur Turner, and the applicants were represented by Mr Avery, Manager, Legal Services, of the Central Land Council. Otherwise the appearances remained the same. After hearing submissions, I adjourned the inquiry for a short time, to consider the arguments put. I then made a ruling to the effect that I proposed to proceed with the hearing of the land claim. I pronounced ex tempore reasons for the ruling, which I later revised from the transcript. Annexed hereto and marked ‘W’ is a copy of the revised reasons.
25. I proceeded with the inquiry on 22nd, 23rd, 24th and 25th May 1996 on the land the subject of the claim. Those sessions did not complete the inquiry. I propose to revisit the land the subject of the claim, to hear more evidence on that land and elsewhere and to receive submissions in relation to the land claim, before preparing and delivering my report to the Minister for Aboriginal and Torres Strait Islander Affairs, in accordance with section 50(1)(a)(ii) of the Aboriginal Land Rights (Northern Territory) Act 1976.
26. Although I have dealt with the questions of law raised by the submissions made to me on 13th, 14th and 22nd May 1996, the answers to those questions of law remain controversial among the parties to the land claim. On 3rd June 1996, the Alcoota Aboriginal Corporation and Arthur Turner, as plaintiffs, filed an originating motion in the Supreme Court of the Northern Territory, in which I am named as the sole defendant. The plaintiffs seek:
‘1. relief in the nature of prohibition to prohibit the defendant from performing or continuing to perform any function under section 50(1)(a) of the Aboriginal Land Rights (Northern Territory) Act (Cth) 1976 in relation to the application dated 18 March 1993, lodged with the defendant pursuant to the aforesaid section and described as the Alcoota Land Claim No 146 (hereinafter referred to as ‘the Land Claim’);
2. in the alternative, a permanent injunction to restrain the defendant from performing or continuing to perform any function under section 50(1)(a) of the Aboriginal Land Rights (Northern Territory) Act (Cth) 1976 in relation to the Land Claim.’
So far, no affidavit or other material has been filed in support of the claim and no other person has been made a party to it. I believe that the Alcoota Aboriginal Corporation and Arthur Turner intend to rely on submissions similar to those which their counsel made to me on 13th, 14th and 22nd May 1996, involving the same questions of law. The resolution of those questions of law by the Federal Court of Australia will bind all parties to the Alcoota Land Claim No 146.”
Having so set out the special case, the Commissioner referred the following questions to this Court pursuant to s 54D of the Land Rights Act :-
“(1) Does a person who holds a native title right or interest in relation to the land the subject of Pastoral Lease No 1032 thereby hold an estate or interest within the meaning of:
(a)the phrase ‘estates and interests’ in section 50(1)(a); and
(b)the phrase ‘an estate or interest’ in section 50(2C)
of the Aboriginal Land Rights (Northern Territory) Act 1976?
(2) Does a person who takes the benefit of the reservation in Pastoral Lease No 1032, expressed as a reservation in favour of ‘the Aboriginal inhabitants of the Northern Territory’, in conjunction with section 24 of the Crown Lands Act (NT) and/or section 38 of the Pastoral Land Act 1992 (NT), thereby hold an estate or interest within the meaning of:
(a)the phrase ‘estates and interests’ in section 50(1)(a); and
(b)the phrase ‘an estate or interest’ in section 50(2C)
of the Aboriginal Land Rights (Northern Territory) Act 1976?
(3) Does the rule relating to corporations, known as the ‘indoor management rule’, or the rule in Royal British Bank v Turquand (1856) 6 E & B 327:
(a) require; or
(b) permit
the Aboriginal Land Commissioner to act on a document purporting to be a written consent, under the common seal of a corporation created under the Aboriginal Councils and Associations Act 1976, without inquiring whether the common seal has been affixed to the document in compliance with the rules of the corporation?
(4) Was the appointment of Chris Marshall as administrator of the Alcoota Aboriginal Corporation valid, notwithstanding:
(a)the absence from the instrument of appointment of any specification of a period for which the appointment was made; and
(b)the specification in notice of the appointment published in the Centralian Advocate newspaper and the Commonwealth of Australia Gazette of the period of appointment as ending when the Registrar of Aboriginal Corporations was satisfied that it was no longer necessary for the administrator to conduct the affairs of the Alcoota Aboriginal Corporation?
(5) Does:
(a)the admission of members of an Aboriginal corporation;
(b)the execution of documents by the affixing of the common seal of an Aboriginal corporation and the signature of the administrator;
(c)the giving of consent in writing of an Aboriginal corporation to a traditional land claim under section 50(2C) of the Aboriginal Land Rights (Northern Territory) Act 1976
exceed the powers of an administrator appointed pursuant to section 71 of the Aboriginal Councils and Associations Act 1976?
(6) Did the appointment of Chris Marshall as administrator of the Alcoota Aboriginal Corporation come to an end:
(a) on 22nd November 1995;
(b) in February 1996; or
(c) on 8th March 1996?
(7) Was the common seal of the Alcoota Aboriginal Corporation validly affixed to the document dated 6th March 1996, which expressed the consent of the Alcoota Aboriginal Corporation to the making of the land claim application dated 18th March 1993 over all the land comprised in Pastoral Lease No 1032?
(8) Was the document dated 6th March 1996, which expressed the consent of the Alcoota Aboriginal Corporation to the making of the land claim application dated 18th March 1993 over all the land comprised in Pastoral Lease No 1032, a valid consent in writing to the making of the application in the Alcoota Land Claim No 146, for the purposes of section 50(2C) of the Aboriginal Land Rights (Northern Territory) Act 1976?
(9) Did the withdrawal of the consent of the Alcoota Aboriginal Corporation on 20th May 1996 deprive the Aboriginal Land Commissioner of power to continue to hear the Alcoota Land Claim No 146?
(10) Was the presence on the land the subject of the Alcoota Land Claim No 146, without the consent of the Alcoota Aboriginal Corporation, of:
(a) the Aboriginal Land Commissioner;
(b)the persons assisting the Aboriginal Land Commissioner in the conduct of the inquiry; and
(c)the applicants and their representatives
justified by the provisions of:
(i) section 51; or
(ii) section 27(1)
of the Aboriginal Land Rights (Northern Territory) Act 1976?
(11) Was the presence on the land the subject of the Alcoota Land Claim No 146 of:
(a)the Aboriginal Land Commissioner;
(b)the persons assisting the Aboriginal Land Commissioner in the conduct of the inquiry; and
(c)the applicants and their representatives
on or after 22nd May 1996:
(i) a trespass;
(ii) illegal?
(12) Was the conduct of the inquiry into the Alcoota Land Claim No 146:
(a) up to and including 21st May 1996; and
(b) on and after 22nd May 1996
a valid exercise of the powers of the Aboriginal Land Commissioner, pursuant to section 50(1)(a) of the Aboriginal Land Rights (Northern Territory) Act 1976?”
The questions reserved fall into two broad categories. Questions one and two relate to the claim made before the Commissioner by Arthur Turner and his “group” that they were Aboriginals having estates or interests, within s 50(1)(a) and s 50(2C) of the Land Rights Act, in the land the subject of the claim such that their written consent was required before the Commissioner could inquire into the claim or continue to inquire into the claim. The remaining questions are inter-related and go to the issue of whether there was a valid consent to the claim given by the Alcoota Aboriginal Corporation (“Alcoota”) and to the consequences flowing from the validity or invalidity of the consent.
Questions one and two
We have concluded that the Court should decline to answer questions one and two. On the hearing of the questions reserved, those appearing for Alcoota and Mr Turner, that is, those interested in, at least before the Commissioner, affirmative answers to these questions, indicated to us that they no longer wished to agitate these issues and that they accepted the Commissioner’s rulings. No other interest represented before us sought to argue other than for negative answers. In those circumstances, the Court was asked to determine the questions in the absence of any person properly interested in an affirmative answer to them. In our view, the Court ought not pronounce upon these questions of potentially broad application, and of no little complexity, in the absence of a proper contradictor and in circumstances where the issues raised by the questions are no longer the subject of controversy or any dispute as between the persons interested.
The issue of consent and related issues
Question three
We have also concluded that the Court should decline to answer question three. The indoor management rule, or the rule in Royal British Bank v Turquand (1856) 6 F & B 327 is not a rule properly so-called but is a presumption of regularity. It is no more than a presumption of fact: Northside Developments Pty Ltd v Registrar-General (1990) 170 CLR 146 at 176. However, the presumption will not operate or will be displaced where the circumstances are such as to put a party dealing with a corporation on inquiry and where no inquiry is made or if made, is not satisfied: Northside Developments v Registrar-General at 160 - 161, 180 - 183; Morris v Kanssen [1946] AC 459 at 475. The statutory enactment of the rule in s 46(4) of the Aboriginal Councils and Associations Act 1976 (Cth) (“the ACA Act”), if it has application to the Commissioner, takes it no further than establishing a presumption of fact. It is immediately apparent, therefore, that the only answer which may be given to question three is, “Yes, unless the circumstances are such as to put the Commissioner on inquiry”. An answer in those terms is hypothetical and would amount to the giving of an advisory opinion unrelated to any facts (Pearce at 357) and ought not to be given. We decline to answer question three.
Question four
Question four stands on a different footing. The Commissioner has found, as part of the special case, facts sufficient for the question to be answered. Those facts are as follows :-
(a)by instrument under seal dated 31 August 1995, the Registrar of Aboriginal Corporations (“the Registrar”) appointed Chris Marshall to be the administrator of Alcoota. The instrument did not specify a period for which the appointment was made;
(b)pursuant to s 72 of the ACA Act, the Registrar published notice of the appointment of Mr Marshall in the Centralian Advocate newspaper and in the Commonwealth of Australia Gazette on 10 October 1995;
(c)each notice specified the period of appointment as being “from 31 August 1995 until such time as I am satisfied that it is no longer necessary for the Administrator to conduct the affairs of the Corporation”.
There being no suggestion that the appointment of Mr Marshall was invalid for some other reason and the question being limited in its inquiry to the period of appointment and the advertising of that period, it is possible to answer question four by reference to these ultimate facts and the operation of the ACA Act.
The relevant sections of the ACA Act for present purposes are s 71 to s 75, s 77D and s 77E. Those sections provide :-
“71(1) If the Registrar considers that there may be grounds for appointing an Administrator, the Registrar may serve on the public officer of the corporation a notice in writing calling upon the corporation to show cause, within a reasonable period specified in the notice, why an Administrator should not be appointed.
(2) After that period, and having considered any representations made by the corporation, the Registrar may appoint an Administrator if satisfied that any of the following grounds have been established:
(a)in the case of an Incorporated Aboriginal Association - the Association has been trading at a loss for at least 6 months during the preceding period of 12 months;
(b)the Council or the Governing Committee, as the case may be, has failed to comply with a provision of this Act, the regulations or the Rules, and has failed to provide a satisfactory explanation;
(c)in the case of an Incorporated Aboriginal Association - the members of the Governing Committee have acted in the affairs of the Association in their own interests rather than in the interests of the members of the Association or otherwise in a way that appears to e unfair or unjust to members of the Association;
(d)in the case of an Incorporated Aboriginal Association - the appointment of an Administrator is required in the interests of members and creditors of the Association;
(e)in the case of an Aboriginal Council - the appointment of an Administrator is required in the interests of adult Aboriginals in the Council area;
(f)the appointment of an Administrator is otherwise required in the public interest.
(3) The Registrar must not appoint an Administrator without the prior approval of the Minister.
72. As soon as practicable after the appointment of an Administrator, the Registrar must publish notice of the appointment, and the period of the appointment, in the Gazette and in a newspaper (if any) circulating in the area where the official address of the public officer of the corporation is situated.
73. On the appointment of the Administrator:
(a)the office of the public officer of the corporation becomes vacant; and
(b)if the corporation is an Aboriginal Council - all offices of the councillors constituting the Council become vacant; and
(c)if the corporation is an Incorporated Aboriginal Association - all offices of the members of the Governing committee of the Association become vacant.
74.(1) The Administrator is to receive such remuneration (if any) as the Registrar determines.
(2) The Registrar may direct how and by whom the remuneration, charges and expenses of the Administrator are to be borne and may, if the Registrar thinks fit, charge the remuneration, charges and expenses on the property of the corporation in such order of priority in relation to any existing charges on that property as the Registrar thinks fit.
75. The Administrator is responsible for the conduct of the affairs of the corporation and in addition has the functions and duties of the public officer.
.....
77D. If the Registrar is satisfied that it is no longer necessary for the Administrator to conduct the affairs of the corporation, the Registrar must conduct an election to fill the offices of the councillors or the members of the Governing Committee, as the case may be.
77E. If the Registrar cancels the appointment of the Administrator, and does not immediately appoint another:
(a)the conduct of the affairs of the corporation vests in the Council or the Governing Committee, as the case requires; and
(b)section 36 or 56, as the case requires, applies as if the office of public officer had become vacant on the cancellation of the appointment of the Administrator.”
The question may, in our view, be answered shortly. Section 71 of the ACA Act sets out the circumstances in which the Registrar may appoint an administrator and the procedure to be followed by the Registrar in so doing. There is no requirement contained in s 71 that the appointment be made by any instrument nor that the appointment be made for a specific period. Section 72 requires publication of notice of the appointment to occur as soon as practicable “after the appointment”. The language of s 72 does not admit of a construction which would make an otherwise valid appointment invalid by reason of a failure to specify in the published notice the period of the administrator’s appointment. Section 72, in its terms, presupposes a valid appointment. Similarly, s 73 provides for certain consequences “[o]n the appointment” of the administrator and when read with s 75, provides for the administrator to assume his or her responsibilities, functions and duties upon appointment. The consequences set out in s 73 and the responsibilities, functions and duties conferred by s 75 are not expressed to be conditional upon compliance with s 72 or upon any other requirement.
Section 72 is properly characterised as requiring that the fact of the appointment of an administrator to an Aboriginal corporation be made known to those persons and entities likely to be dealing with the corporation. Such notice provisions are well known to the general company law with respect to, for example, the appointment of liquidators.
In any event, even if s 72 has an impact upon the validity of appointment, there is no reason to read s 72 as requiring that the period of appointment be specified by reference to a specific date of conclusion. Nor does the statutory context allow such a reading of the section when one has regard to the circumstances in which the Registrar may appoint an administrator and the consequences of appointment. Namely, that s 73 and s 75 operate in conjunction with s 77D and s 77E to vacate the relevant offices of the corporation and “vest” power in the administrator for the period during which the Registrar is satisfied that it is necessary for the administrator to conduct the affairs of the corporation and then to fill the vacant offices and “revest” power in the corporation upon the Registrar no longer being so satisfied. In our view, an appointment of an administrator for, and publication of the notice specifying appointment for, a period to commence from a given date and to continue until the Registrar is satisfied that it is no longer necessary for the administrator to conduct the affairs of the corporation would not offend s 72 of the ACA Act, nor invalidate an otherwise valid appointment. It seems to us that most, if not all, appointments will, of necessity and as a practical mater, be made for such a period.
We answer question four, “Yes”.
Question five
The three questions contained in question five, read independently of the other questions, are problematic. Assuming that the administrator properly appointed does have the power to do the acts specified in paragraphs (a), (b) and/or (c), the exercise of that power is qualified to the extent that it was exercised, and that the act was done, for a proper purpose. On that basis, we decline to answer the question for the reasons set out earlier. It is not possible, in the face of the material stated in and annexed to the special case, for this Court to draw the inference that any act of the administrator inquired of in question five was done for a proper purpose. Such an inference is not one which could be said to necessarily flow from the special case or the documents annexed to it (Fowles v Eastern and Australian Steamship Co at 196), particularly in light of the controversy as to what occurred at the meetings on 6 March 1996 and the allegations raised in the material and now sought to be litigated in the Supreme Court of the Northern Territory.
Question six
There is a sufficient basis in fact disclosed in the special case to allow the Court to answer question six. The relevant facts are contained in paragraphs 10, 11, 13, 14 and 20 and the first sentence of paragraph 16.
The scheme established by s 71, s 73, s 75, s 77D and s 77E of the ACA Act requires that an election be held during the term of the administrator’s appointment to fill the offices of the governing committee so that s 77E may operate to vest the conduct of the affairs of the corporation in that committee upon cancellation of the appointment of the administrator. The ACA Act does not contemplate that the appointment will come to an end by the effluxion of time. Nor does it contemplate, whatever is stated in the instrument of appointment, that the appointment will end upon the Registrar being satisfied that it is no longer necessary for the administrator to conduct the affairs of the corporation because at that point, it is still required to conduct elections for the governing committee and that the Registrar cancel the appointment so that s 77E may operate in accordance with its terms. The scheme of the ACA Act does not permit of a lacuna in the conduct of the affairs of the corporation whilst the relevant election is held. Further, s 77E, which operates to re-vest the conduct of the affairs in the governing committee is expressed to operate upon cancellation of the appointment by the Registrar and not upon the appointment coming to an end by effluxion of time or by the Registrar reaching a certain state of satisfaction.
In our view, the appointment of an administrator may only come to an end by the appointment being cancelled by the Registrar and by no other means. On the facts as stated in the special case, the appointment of the administrator was cancelled by the Registrar by letter dated 6 March 1996, to take effect at the close of business on 8 March 1996. There was no earlier conduct of the Registrar which could amount to cancellation within s 77E. We answer question six, therefore, “(c) on 8th March 1996”.
Question seven
It was not suggested before us, nor could it reasonably have been, that the administrator, on appointment, was able to conduct the affairs of Alcoota and carry out the functions and duties of the public officer other than in accordance with the rules of the Alcoota. In our view, the effect of s 73 and s 75 of the ACA Act is that an administrator, on appointment, has such powers to conduct the affairs of the corporation as may have been exercised by the public officer and the governing committee prior to the appointment. That is, such powers as are provided for by the rules and the ACA Act to those offices, as supplemented by any special or additional powers conferred on the administrator by the ACA Act or by delegation of the Registrar.
It is necessary, therefore, to have close regard to the rules of Alcoota, and insofar as those rules are subject to the ACA Act, that Act.
Alcoota is an Incorporated Aboriginal Association under the ACA Act. Its central object is the relief of poverty, sickness, helplessness, serious economic disadvantage and social distress of its members (rule 6). In furtherance of that central object, Alcoota is established to hold title to land for the benefit of its members and to assist Aboriginals claiming to have a traditional land claim to the area of land so held by Alcoota in pursuing the claim (rule 6.1). Alcoota’s powers are expressed as being those to do all lawful things as may be necessary or desirable to carry out its object and to acquire land and manage any land vested in it (rule 7). Alcoota is not empowered to grant an estate or interest in land vested in it, or to revoke any traditional land claim lodged by or on behalf of traditional owners over land to which it holds title, without the consent in writing of the Central Land Council (rules 7.2 and 7.3), which is only to be given in certain circumstances (rule 7.4).
Membership of Alcoota is open to all adult Aboriginal persons who are traditional owners of the Alcoota Pastoral Lease (No 1032) or such other land to which Alcoota holds title (rule 9.1). Membership ceases upon death, upon resignation by notice in writing or by expulsion by special resolution of a general meeting (rule 10.1).
The rules provide for the election of members to a governing committee to manage the affairs of Alcoota and to carry out its object and purposes. The committee has the same powers as are granted to Alcoota under the rules (rule 12.1). Rule 14 provides for the appointment of a public officer who may, but need not, be a member of Alcoota. The public officer is required to keep a register of members and committee members detailing, inter alia, the date upon which the member first became a member and, where a member ceases to be a member, the date of cessation of membership (rule 14.3).
Alcoota is required to have a common seal (rule 8.1). Each document to which the common seal is affixed must be countersigned by two committee members appointed for that purpose following prescribed words (rule 8.3). The rules and the ACA Act are both silent as to which documents must or may be executed under seal.
As we have said, the administrator, on appointment, has such powers to conduct the affairs of Alcoota as may have been exercised by the public officer and the governing committee prior to the appointment, subject, of course, to the ACA Act.
There can be little doubt that an administrator has power to execute documents on behalf of the corporation to which he or she is appointed provided that it is necessary to do so in the conduct of the affairs of the corporation or to carry out a statutory delegated function of the administrator and provided that it is done for the purposes of carrying out a statutory or delegated function or for a proper purpose of the corporation having regard to its object or objects and its rules. The ACA Act requires that the corporation have a common seal (s 46(1)(b)) and that all courts, judges and persons acting judicially take judicial notice of the seal of a corporation affixed to a document and presume that it was duly affixed (s 46(4)).
The rules of Alcoota provide for a seal and for the method by which and the form in which it is to be affixed. Neither the ACA Act nor the rules of Alcoota provide any further guidance on the use of the seal. The administrator, standing in the shoes of the governing committee, may, in our view, affix the seal of the Alcoota to documents of Alcoota executed by him in carrying out his functions. Rule 8.3 requires every document to which the seal is affixed to be countersigned by two members of the governing committee and requires the use of a prescribed form of words. As the administrator stands in the shoes of the governing committee and as the offices of the governing committee stand vacant during the term of the administrator’s appointment, the signature of the administrator on the document to which the seal is affixed, together with an adapted form of the prescribed words, subject to what is said above about the other circumstances of the use of the seal, would be within the administrator’s power.
We turn now to the question of consent under s 50(2C) of the Land Rights Act. When one has regard to the broad range of circumstances in which an administrator may be appointed pursuant to s 71 of the ACA Act, to the fact that the conduct of the affairs of the corporation resides in the administrator on appointment and to the fact that the words “affairs of the corporation” appearing in s 75 of the ACA Act must be given a wide interpretation (Johns v Connor (1992) 35 FCR 1 at 12), it is difficult to construe the ACA Act as containing any limitation upon an administrator’s power to consent for the purposes of s 50(2C) of the Land Rights Act. Any such limitation is to be found in the rules of Alcoota and, in particular, by reference to the object and the powers of the corporation to be exercised by the governing committee.
The “central object” of Alcoota is, as we have said, expressed to be the relief of poverty, sickness, helplessness, serious economic disadvantage and social distress of its members. Rule 6.1 provides :-
“6.1 In furtherance of the central object the association is established to hold title to land (whether by lease, freehold or other system of secure tenure) for the benefit of members of the Association and to assist Aboriginals claiming to have a traditional land claim to the area of land so held by the association in pursing the claim.”
(Emphasis added)
The emphasised phrase in rule 6.1 makes it clear that the granting of consent to a traditional land claim under s 50(2C) of the Land Rights Act is an act in furtherance of the central object of Alcoota and thus is an act within the power of the governing committee (and, therefore, an administrator standing in the governing committee’s shoes). It was submitted for Mr Turner and Alcoota that, reading rule 6 as a whole, Alcoota’s central object is to be advanced by gaining secure title to land and not by consenting to a procedure which, by operation of the Land Rights Act, may result in Alcoota losing title to all its land. The submission ignores that rule 6.1 is stated disjunctively so that holding title to land for the benefit of members and assisting traditional land claimants to the land held by Alcoota are both steps in furtherance of the central object. The submission also ignores that, as a practical matter, those claiming to have such a traditional land claim would be persons eligible to be members of Alcoota (ie traditional owners of the land) and that assisting those persons to obtain title to the land through the mechanisms of the Land Rights Act would clearly be in furtherance of the central object, at least insofar as those persons were members.
Question seven raises at the outset the dual questions of whether the administrator may affix the common seal and whether the administrator may consent under s 50(2C) of the Land Rights Act. Although in the abstract it may be within the power of the administrator to affix the common seal and to give the relevant consent, question seven is directed to the validity of the affixing of the seal to a particular document, namely, the purported consent of 6 March 1996. The question is directed to the particular factual circumstances in which the seal was affixed. Those circumstances are controversial, have not been the subject of sufficient findings of fact to enable the Court to answer the question in other than an hypothetical or qualified way and will be litigated in adversarial proceedings between the relevant interested parties in the Supreme Court of the Northern Territory. Therefore, the question is not one which ought to be answered by this Court and we decline to answer it.
Question eight
Question eight is directed to the heart of what is really in dispute in the Commissioner’s inquiry.
The document of 6 March 1996, on its face, is a consent to the making of the land claim application dated 18 March 1993 over all the land comprised in Pastoral Lease No 1032, given by Alcoota and to which the common seal of Alcoota was affixed on 6 March 1996 “pursuant to a resolution of the annual general meeting held on 6 March 1996”. The document is signed by two persons as “committee member” in what appears to be purported compliance with rule 8.3 of the rules of Alcoota and is signed by the administrator.
A number of questions arise from the terms of the document, the answers to which it is not possible to determine from the special case or by inference from the documents annexed to it. It is unclear whether the consent was given by the governing committee of Alcoota, whether it was given by resolution of Alcoota in general meeting, with the common seal being affixed and countersigned by two committee members in accordance with rule 8.3, or by the administrator as having conduct of the affairs of Alcoota. The status of and reasons for the various signatures on the document and the words used to authorise the affixing of the seal are unclear. The Commissioner has made no findings on those issues. It is not possible to draw any inferences from the special case or the documents annexed to it which would resolve those issues. Nor is it possible to answer the question in other than an hypothetical or qualified way absent a resolution of them.
If it be that the consent was signed by the administrator in his capacity as having conduct of the affairs of Alcoota and was intended by him to operate as a consent under s 50(2C) of the Land Rights Act on behalf of Alcoota and subject to a finding that the consent was given for a proper purpose, the question could be answered “yes” without the necessity of dealing with what occurred at the meetings on 6 March 1996 or the circumstances of the affixing of the common seal. Absent a finding of fact or the availability of an inference of fact to be drawn in those terms, it is not appropriate to give an answer. We should say that the way in which the Commissioner dealt with the matter suggests that he did not consider that to have been the case. That he dealt with what occurred at the meetings on 6 March 1996 and applied the rule in Turquand’s Case to the document under seal suggests that the Commissioner was concerned with a consent given pursuant to a resolution in general meeting and a common seal affixed under the authority of the governing committee or two members of it appointed for that purpose.
If those circumstances form the basis of the conclusion reached that a valid consent was given, question eight must be answered, “No”. As at 6 March 1996, the conduct of the affairs of Alcoota was vested in the administrator and not the corporation in general meeting or in the governing committee. The only proper function of the general meeting held on 6 March 1996 was the election of a governing committee in accordance with s 77D of the ACA Act.
The document executed on 6 March 1996 would not seem, on its face, to support any inference other than that the administrator signed it as a witness to the signatures of the two members of the governing committee. It would certainly not support the inference that the administrator’s signature upon it was intended to and did operate as a consent of Alcoota within s 50(2C) of the Land Rights Act. Without the issue having been investigated by the Commissioner, it is not, in our view, appropriate that it be resolved and the rights of the parties determined, by the drawing of an inference on limited material by this Court on a case stated. It is also inappropriate to do so in the face of the proceedings in the Supreme Court of the Northern Territory in which the circumstances of the meetings on 6 March 1996 are to be litigated in adversarial proceedings, allowing proper ventilation and determination of the relevant questions of fact.
We decline to answer question eight.
Questions nine, ten, eleven and twelve
The remaining questions depend upon answers having been given to other questions and, in particular, an affirmative answer having been given to question eight.
Question nine presupposes an affirmative answer to question eight. Questions ten and eleven go to the issue of whether a consent under s 50(2C) of the Land Rights Act carries with it a consent, or an implied consent, to the Commissioner, the persons assisting him and the persons appearing before the Commissioner to go onto the land the subject of the inquiry for the purposes of the conduct of the inquiry. Absent an affirmative answer to question eight, it is not appropriate to answer questions ten and eleven. Question twelve is couched in vague and general terms and, as we understand it, depends upon a negative answer to questions one and two, an affirmative answer to question eight, a negative answer to question nine, an affirmative answer to question ten and a negative answer to question eleven. In the circumstances, it is not appropriate to answer it and we decline to do so.
Conclusion
The questions reserved should be answered as follows :-
Question 1
Does a person who holds a native title right or interest in relation to the land the subject of Pastoral Lease No 1032 thereby hold an estate or interest within the meaning of:
(a) the phrase ‘estates and interests’ in section 50(1)(a); and
(b) the phrase ‘an estate or interest’ in section 50(2C)of the Aboriginal Land Rights (Northern Territory) Act 1976?
Answer: Decline to answer
Question 2
Does a person who takes the benefit of the reservation in Pastoral Lease No 1032, expressed as a reservation in favour of ‘the Aboriginal inhabitants of the Northern Territory’, in conjunction with section 24 of the Crown Lands Act (NT) and/or section 38 of the Pastoral Land Act 1992 (NT), thereby hold an estate or interest within the meaning of:
(a) the phrase ‘estates and interests’ in section 50(1)(a); and
(b) the phrase ‘an estate or interest’ in section 50(2C)of the Aboriginal Land Rights (Northern Territory) Act 1976?
Answer: Decline to answer
Question 3
Does the rule relating to corporations, known as the ‘indoor management rule’, or the rule in Royal British Bank v Turquand (1856) 6 E & B 327:
(a) require; or
(b) permitthe Aboriginal Land Commissioner to act on a document purporting to be a written consent, under the common seal of a corporation created under the Aboriginal Councils and Associations Act 1976, without inquiring whether the common seal has been affixed to the document in compliance with the rules of the corporation?
Answer:Decline to answer
Question 4
Was the appointment of Chris Marshall as administrator of the Alcoota Aboriginal Corporation valid, notwithstanding:
(a)the absence from the instrument of appointment of any specification of a period for which the appointment was made; and
(b)the specification in notice of the appointment published in the Centralian Advocate newspaper and the Commonwealth of Australia Gazette of the period of appointment as ending when the Registrar of Aboriginal Corporations was satisfied that it was no longer necessary for the administrator to conduct the affairs of the Alcoota Aboriginal Corporation?
Answer: Yes
Question 5
Does:
(a)the admission of members of an Aboriginal corporation;
(b)the execution of documents by the affixing of the common seal of an Aboriginal corporation and the signature of the administrator;
(c)the giving of consent in writing of an Aboriginal corporation to a traditional land claim under section 50(2C) of the Aboriginal Land Rights (Northern Territory) Act 1976
exceed the powers of an administrator appointed pursuant to section 71 of the Aboriginal Councils and Associations Act 1976?
Answer: Decline to answer
Question 6
Did the appointment of Chris Marshall as administrator of the Alcoota Aboriginal Corporation come to an end:
(a) on 22nd November 1995;
(b) in February 1996; or
(c) on 8th March 1996?
Answer: (c) On 8th March 1996
Question 7
Was the common seal of the Alcoota Aboriginal Corporation validly affixed to the document dated 6th March 1996, which expressed the consent of the Alcoota Aboriginal Corporation to the making of the land claim application dated 18th March 1993 over all the land comprised in Pastoral Lease No 1032?
Answer:Decline to answer
Question 8
Was the document dated 6th March 1996, which expressed the consent of the Alcoota Aboriginal Corporation to the making of the land claim application dated 18th March 1993 over all the land comprised in Pastoral Lease No 1032, a valid consent in writing to the making of the application in the Alcoota Land Claim No 146, for the purposes of section 50(2C) of the Aboriginal Land Rights (Northern Territory) Act 1976?
Answer:Decline to answer
Question 9
Did the withdrawal of the consent of the Alcoota Aboriginal Corporation on 20th may 1996 deprive the Aboriginal Land Commissioner of power to continue to hear the Alcoota Land Claim No 146?
Answer: Decline to answer
Question 10
Was the presence on the land the subject of the Alcoota Land Claim No 146, without the consent of the Alcoota Aboriginal Corporation, of:
(a) the Aboriginal Land Commissioner;
(b)the persons assisting the Aboriginal Land Commissioner in the conduct of the inquiry; and
(c) the applicants and their representatives
justified by the provisions of:
(i) section 51; or
(ii) section 27(1)
of the Aboriginal Land Rights (Northern Territory) Act 1976?
Answer:Decline to answer
Question 11
Was the presence on the land the subject of the Alcoota Land Claim No 146 of:
(a) the Aboriginal Land Commissioner;
(b) the persons assisting the Aboriginal Land Commissioner in the conduct of the inquiry; and
(c) the applicants and their representativeson or after 22nd May 1996:
(i) a trespass;
(ii) illegal?
Answer: Decline to answer
Question 12
Was the conduct of the inquiry into the Alcoota Land Claim No 146:
(a) up to and including 21st May 1996; and
(b) on and after 22nd May 1996a valid exercise of the powers of the Aboriginal Land Commissioner, pursuant to section 50(1)(a) of the Aboriginal Land Rights (Northern Territory) Act 1976?”
Answer: Decline to answer
Costs
We have considered whether there should be any order for costs in this matter in relation to the questions of law referred. In our view, there are two matters of significance on that issue. Firstly the Land Rights Act does not contemplate that the Commissioner may make any order for costs in favour of, or against, any person or entity appearing on an inquiry conducted by the Commissioner under s 50(1)(a), and the referral of questions of law under s 54D has been made in the course of such an inquiry and before it has been completed. It would be consistent with the general approach of the Land Rights Act that there should be no order for costs in favour of, or against, any party appearing before us. In addition, the referral under s 54D was made by the Commissioner himself and apparently of his own motion, albeit in the face of significant issues which had been the subject of both submissions and evidence adduced before him. The Alcoota Aboriginal Corporation and Arthur Turner in fact have instituted separate proceedings in the Supreme Court of the Northern Territory to raise issues similar to those referred by the Commissioner under s 54D. In those circumstances it is our view that there should be no order for costs in respect to the hearing and determination of the questions of law referred to the Court.
I certify that this and the preceding thirty-three (33) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Northrop, the Honourable Justice Cooper and the Honourable Justice Mansfield
Associate:
Dated: 30 March 1998
Counsel for the Alcoota Aboriginal Corporation and for Mr Turner: J Campbell QC and J Reeves
Solicitors for the Alcoota Aboriginal Corporation and for Mr Turner: James Noonan, Solicitors
Counsel for the Claimants in Alcoota Land Claim Number 146: R Basten QC and T Robertson
Solicitors for the Claimants in Alcoota Land Claim Number 146: Central Land Council
Counsel for the Registrar of Aboriginal Corporations: J Thomson
Solicitors for the Registrar of Aboriginal Corporations: Australian Government Solicitor
Counsel for R A Coppock, S K Coppock and C R Coppock:
Solicitors for R A Coppock, S K Coppock and
C R Coppock:N Henwood
Cridlands
Date of Hearing: 1 and 2 July 1997 Place of Hearing: Darwin Date of Judgment: 30 March 1998 Place of Judgment: Adelaide
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