The Attorney-General for the N.T. of Australia v Minister for Aboriginal Affairs

Re: THE ATTORNEY GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA
And: MINISTER FOR ABORIGINAL AFFAIRS; GEORGE BROWN JUNGARRAYI and LAWRENCE
KELLY JAITAMARRA
No. G378 of 1986
Administrative Law

COURT

THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart(1), Neaves(2) and Gummow(1) JJ.

CATCHWORDS

Administrative Law - Administrative Decisions (Judicial Review) Act 1977 - Indication by Minister of intention pursuant to s. 11 of Aboriginal Land Rights (Northern Territory) Act 1976 to proceed with recommendation to Governor-General for the making of land grants - scheme of Land Rights Act discussed - whether decision made by Minister to recommend land grant is subject to review under Judicial Review Act - whether such decisions made by Governor-General and therefore within exclusion of sub-s. 3(1) of the Judicial Review Act - whether "decision" had yet been made by Minister - whether legally binding agreement for future use of land claimed could be made between the Northern Territory and the Central Land Council before land granted - whether the possibility of future Commonwealth legislation is a relevant consideration for Minister in deciding whether land grant should be recommended to Governor-General - whether Minister failed to take into consideration requirements of Land Rights Act - whether Court's discretion should be exercised.

Aboriginal Land Rights (Northern Territory) Act 1976: ss. 11, 12, 14, 50, 67 and 74.

Acts Interpretation Act 1901: s. 16A.

Administrative Decisions (Judicial Review) Act 1977: ss. 3 and 5.

HEARING

SYDNEY

#DATE 23:7:1987

Counsel and Solicitors for the Appellant: D.M.J. Bennett Q.C. with J.D. Barrett instructed by Messrs. Clayton Utz.

Counsel and Solicitor for the First Respondent: G.K. Downes Q.C. with G. Flick instructed by the Australian Government solicitor.

Solicitor for the Second Respondent: D. Avery

ORDER

The appeal be dismissed.

The appellant pay the costs of the first and second respondents.

NOTE: SETTLEMENT AND ENTRY OF ORDERS IS DEALT WITH IN ORDER 36 OF THE FEDERAL COURT RULES.

JUDGE1

Introduction

This is an appeal from the decision of a single judge of this Court dismissing an application for review under the Administrative Decisions (Judicial Review) Act ("the ADJR Act"). The appellant was the applicant for review and the first respondent ("the Minister") the decision maker. The enactment under which the Minister had exercised powers in the manner complained of by the appellant was the Aboriginal Land Rights (Northern Territory) Act 1976 ("the Land Rights Act"). The controversy was precipitated by the Minister notifying the Chief Minister of the Northern Territory by letter dated 23 December 1985 that he was satisfied that certain land comprised in what is known as the Tennant Creek Water Control District should be granted to land trusts to be established under the Land Rights Act and that he would recommend to the Governor-General that a grant of an estate in fee simple be made under the Land Rights Act to those trusts to be held for the benefit of certain aboriginals, as traditional owners.

The application for review was resisted both on the ground that there was no "decision" to which the ADJR Act applied and on the ground that, even if there had been such a decision, no ground for review within the meaning of s.5 of the ADJR Act had been made out. The learned trial Judge held he had jurisdiction, there having been the necessary "decision", and dismissed the application on the merits, holding that no ground for review had been established. This made it unnecessary for his Honour to rule upon a submission that, even if a ground for review had been made out, the Court, as a matter of discretion, should withhold relief.
All these matters were agitated upon the appeal.
The relevant primary facts were not in dispute, but there was disagreement between the parties as to the inferences to be drawn from the correspondence that was in evidence. In particular, there was no direct evidence from the Minister as to what considerations were included in and excluded from consideration by him in reaching the decisions impugned by the appellant; and the Court was invited to reach varied conclusions from its consideration of the documentary material.

The Legislation

It is appropriate first to describe those provisions of the Land Rights Act against which the facts are to be understood. The legislation has been taken as it stood in December 1985 at the time of the decision of the Minister which is complained of. It has since been further amended, but not in any way presently material. Under s.50 of the Land Rights Act the Aboriginal Land Commissioner inquires into, and reports to the Minister and the Administrator of the Northern Territory upon claims made by or on behalf of aboriginals who assert a traditional land claim to areas of land in the Territory. The Commissioner is required to comment in his report, inter alia , upon "the detriment to persons or communities ... that might result if the claim were acceded to either in whole or in part": para. 50(3)(b).
Sections 11 and 12 deal with the making of recommendations for a grant of, and the granting of, land in respect of which the Commissioner has made a recommendation. Those sections, so far as material, provide:

"11.(1) Where --

(a) the Commissioner has, before the commencement of the Aboriginal Land Rights Legislation Amendment Act 1982, recommended, or, after the commencement of that Act, recommends, to the Minister in a report made to him under paragraph 50(1)(a) that an area of Crown land should be granted to a Land Trust for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of that area of land, whether or not the traditional entitlement is qualified as to place, time, circumstance, purpose or permission; and

(b) the Minister is satisfied -

(i) that the land, or a part of the land, should be granted to a single Land Trust to be held for the benefit of Aboriginals who are the relevant Aboriginals in relation to that land or that part of that land; or

(ii) that different parts of the land should be granted to different Land Trusts so that each Land Trust holds the land granted to it for the benefit of Aboriginals who are the relevant Aboriginals in relation to that last-mentioned land,

the Minister shall--

(c) establish--

(i) in a case where he is satisfied that the land, or a part of the land, should be granted to a single Land Trust- a single Land Trust under section 4 to hold that land, or that part of that land, for the benefit of Aboriginals who are the relevant Aboriginals in relation to the land, or the part of the land, proposed to be held by that Land Trust; or

(ii) in a case where he is satisfied that different parts of the land should be granted to different Land Trusts- 2 or more Land Trusts under section 4 respectively to hold those different parts of that land for the benefit of Aboriginals who are the relevant Aboriginals in relation to the parts of the land respectively proposed to be held by each of those Land Trusts;

(d) where land in respect of which a Land Trust has been or is proposed to be established in accordance with paragraph (c) is, or includes, alienated Crown land, ensure that the estates and interests in that land of persons (other than the Crown) are acquired by the Crown by surrender or otherwise; and

(e) after any acquisition referred to in paragraph (d) has been effected in relation to land and a Land Trust has been established in accordance with paragraph

(c) in respect of that land, recommend to the Governor-General that a grant of an estate in fee simple in that land be made to that Land Trust.

...

(4) In this section, 'relevant Aboriginals', in relation to an area of land, means Aboriginals entitled by Aboriginal tradition to the use or occupation of that area of land, whether or not the traditional entitlement is qualified as to place, time, circumstance, purpose or permission."

"12.(1) Subject to this section, on the receipt of a recommendation under section 10 or 11 with respect to land, the Governor-General may -

(a) in the case of a recommendation under sub-section 10(1) or section 11- execute a deed of grant of an estate in the land in accordance with the recommendation and deliver it to the grantee; or

(b) in the case of a recommendation under sub-section 10(2)- execute a deed of grant of an estate in the land in accordance with the recommendation and deliver it to the Land Council referred to in the recommendation on the condition that it be held by the Land Council in escrow, and subsequently delivered to the grantee, in accordance with the recommendation. ..."

The High Court has held that, in exercising his powers under para.11(1)(b), the Minister is bound to take into account the comments of the Commissioner on the matters in para.50(3)(b) dealing with what we shall compendiously describe as "detriment": Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1986) 66 ALR 299.
The applicant for review in this case, the appellant before us, argued that in exercising his powers under para.11(1)(b) the Minister failed to take into account the question of detriment to the Northern Territory in respect of the water supply to Tennant Creek. It was also argued that the Minister, in the course of exercising those powers, took irrelevant considerations into account and committed an error of law.
Section 74 provides that the Land Rights Act "does not affect the application to Aboriginal land of a law of the Northern Territory to the extent that that law is capable of operating concurrently with this Act". Section 70 prohibits persons from entering and from remaining upon Aboriginal land unless, amongst other circumstances, they enter pursuant to a law of the Northern Territory. "Aboriginal land", so far as presently material, is defined in sub-s. 3(1) as meaning land held by a Land Trust for an estate in fee simple. Land Trusts are bodies corporate established by the Minister (s.4), primarily to hold title to land vested in them in accordance with the Act (s.5). No Land Trust is empowered to accept or give a valid discharge for moneys owing to it; such moneys may be paid to the Land Council for the area in which the Land Trust holds or is established to hold land (s.6). Land Councils are bodies corporate established by the Minister (ss. 20, 21) whose functions include negotiation on behalf of traditional Aboriginal owners of land in their respective areas, being held by a Land Trust, with persons desiring to use, occupy or obtain an interest therein (para. 23(1)(e)).
Section 67 prohibits the compulsory acquisition of Aboriginal land under any law of the Northern Territory.
Sub-section 14(1) provides, in part, that where, on the vesting in a Land Trust of an estate in fee simple in land, the land is being occupied or used by the Crown, the Crown is entitled to continue that occupation or use for such period as the land is required by the Crown. The expression "the Crown" includes the Crown in the right of the Commonwealth and in the right of the Northern Territory (sub-s.3(6)).
Finally, sub-s.19(4) provides that, with the consent in writing of the Minister and at the direction in writing of the relevant Land Council, a Land Trust may, inter alia, grant a lease or licence in respect of the whole or any part of the land vested in it to any person for any purpose.

The Facts

A brief narration of the facts is not possible; but in compensation the case is one of those where an understanding of the facts suggests the true answer.
In November 1978 two applications under the Land Rights Act for land grants were lodged with the Aboriginal Land Commissioner. The first was entitled after amendment,the Warlmanpa, Warlpiri, Mudbura and Warumungu Land Claim ("the Warlmanpa claim"). Between October 1980 and June 1981 the Aboriginal Land Commissioner, Toohey J., acting pursuant to s.50 of the Act, took evidence and heard addresses regarding this claim. On 30 September 1981 he presented his report. The report recommended the grant to a Land Trust of most of the unalienated Crown land in the claim area; but the Commissioner drew attention to the fact that the Warrego Water Control District, as constituted in accordance with s.16A of the Control of Waters Act 1938 (NT), lay within the claim area. He referred to evidence of a proposal to constitute a much larger area of land as the Tennant Creek Water Control District. He went on:

"332. The continuation of the Warrego Water Control District and the constitution of the Tennant Creek Water Control District would not be affected by a grant of land to a Land Trust. The constitution of a water control district does not affect the status of the land and the regulation of activities within such a district is preserved by s.74 of the Land Rights Act to the extent that the Northern Territory law is capable of operating concurrently with that Act. ...

333. There was evidence of an intention by the Water Division of the Northern Territory Department of Transport and Works to 'carry out investigation drilling over the whole of the Wiso groundwater basin area and this will necessitate the clearing of access tracks, drill sites and camp sites' ... Such activities appear to be authorised by s.16FA of the Control of Waters Act and consistent with s.74 of the Land Rights Act. Section 70(1) allows a person to enter and remain on Aboriginal land in the performance of functions under a law of the Northern Territory; should a permit be required to enter Aboriginal land, s.6 of the Aboriginal Land Act provides that the Minister may issue a permit to a person employed under or by virtue of an Act of the Northern Territory.

334. The Northern Territory Government owns no water-related capital assets within the claim area but expressed concern that bores sunk on the land would become the property of the traditional Aboriginal owners ..."

The second claim was known, again after amendment, as the Kaytej, Walpiri and Warlmanpa Land Claim ("the Kaytej claim"). It was heard in December 1981 and January 1982. The report of the Commissioner was dated 26 March 1982. Toohey J. recommended the grant to a Land Trust of the whole of the land claimed. But, once again, he referred to the proposed Tennant Creek Water Control District. He mentioned the significance of an increased supply of water to the town of Tennant Creek and commented at para. 129:

"To the extent that the town and adjacent areas are dependent upon water, it is important that some arrangement be made guaranteeing the supply of water in the event that the land becomes Aboriginal land. To say that is not to suggest that the claimants would not be prepared to enter into such an arrangement, but in the interests of all concerned it is better that the matter be resolved now."

Shortly after the presentation of the second report, the Minister for Transport and Works of the Northern Territory abolished the Warrego Water Control District and constituted the Tennant Creek Water Control District. By his instrument, and pursuant to sub-s.16B(1) of the Control of Waters Act, the Minister prohibited the sinking or constructing of any well or water bore within the District except in accordance with a permit granted under that section. The instrument was later amended to extend the prohibition to the use of any well or water bore.
The recommendations of the Commissioner enlivened s. 11 of the Land Rights Act. On 8 September 1983, the Minister announced by press release his acceptance of the recommendations for grants contained in the two reports. He referred to "the need to ensure that the water supply for the town of Tennant Creek be supplemented from the claim areas if necessary" but expressed his confidence that "the traditional owners and the Land Council are prepared to make reasonable arrangements to meet the needs of others".
On 14 September 1983 the then Chief Minister of the Northern Territory wrote to the Minister seeking information as to the basis for his statement as to the attitude of the traditional owners and the Land Council.
There was no immediate direct response to this letter. However, on 23 September 1983, an officer of the Department of Aboriginal Affairs wrote to the Director-General of the Department of the Chief Minister giving certain details about "assurances given by the Land Councils and the traditional owners" in relation, inter alia, to these two land claims. On the topic of detriment to water supply, in respect of the Kaytej claim, the letter stated that:

"the traditional owners clearly indicated to the Central Land Council that they are mindful of the detriment issues which the Commissioner mentioned in his report and are keen to make arrangements with the parties concerned. In particular, they are willing to make arrangements for the development and use of water supply facilities in the Tennant Creek West Borefield area".

On 19 October 1983, in a direct response to the Chief Minister's letter of 14 September, the Minister said:

"As to the details of arrangements to protect the interests of other parties, I was concerned to ensure before making my decision on both the Warlmanpa and Kaytej claims, that persons presently using parts of the claim areas do not suffer undue detriment as a result of the land being granted to Land Trusts. I therefore obtained written assurances from the traditional Aboriginal owners and the Central Land Council, as detailed below.

...

Town of Tennant Creek

The traditional owners have undertaken to make appropriate arrangements for the development and use of water supply facilities in the Tennant Creek West Bore Field area."

A few days later, on 25 October 1983, the Minister elaborated:

"Further to my letter of 19 October concerning the Warlmanpa and Kaytej land claims, I expect that your Government will wish to enter into an agreement with the relevant Aboriginal Land Trust in respect of the development and use of water supply facilities in the Tennant Creek West Borefield area. The agreement would be signed immediately after title has been granted to the Land Trust.

I wish to inform you that title will not be granted to the Trust until your Government has had sufficient time to settle the details of the agreement. My officers will liaise with yours in respect of progress in this matter."

On 6 December 1983 the Minister added that the Central Land Council had indicated to his officers "that the traditional owners have no intention of seeking unreasonable conditions for the use of their land by ..., in respect of the future water needs of Tennant Creek, the Northern Territory Government".
So far as the evidence indicates, there was no further communication between the two governments concerning those land claims for a period of fifteen months. On 11 March 1985 the Minister wrote to the Chief Minister, a letter expressing concern at "the time being taken in finalising arrangements to provide for the interests of some parties affected by these claims". In particular, he noted that no agreement had been reached with the Central Land Council regarding the interests of the Northern Territory. The Minister indicated that he had decided to grant all of the land recommended for grant by Toohey J. in both claims except the area forming Tennant Creek Water Control District, in respect of which area he said that he had "reserved" his decision for the time being. The letter went on:

"I would hope that your Government can finalise its negotiations with the Central Land Council in this matter as soon as possible. I would be prepared to assist in arranging for an Arbitrator to be provided should there be difficulties in finalising this matter as I am anxious to deal with the remainder of the land in both claims as soon as practicable. However, if those negotiations are not settled within a reasonable time I may, unless there are compelling reasons for me not to do so, arrange for the remainder of the land to be granted without further notice."

The response of the Chief Minister, dated 12 April 1985, did not take up the suggestion of negotiations but canvassed broader matters. After stating his Government's commitment "to advancing the interests of Aboriginals in the Northern Territory in a fair, balanced and harmonious way" the letter went on to express the "firm" view of the Northern Territory "that public purpose lands should not be available for claim, nor should they be granted". The letter noted the policy of various States concerning public purpose lands and claimed that "significant parts" of the Control of Waters Act cannot apply to Aboriginal land because of the "restrictions" contained in s.74 of the Land Rights Act. He complained that his Government, unlike the State governments, "is denied the power to acquire any interests in Aboriginal land for public purposes no matter how vital or important that public purpose may be".
The Chief Minister expressed the belief that negotiations could not, and should not, be finalised until Maurice J. presented his report in relation to a further land claim, the Warumungu (Tennant Creek) Land Claim. The letter stressed "that it has been my Government's consistent submission that while you have a broad discretion under section 11 of the Aboriginal Land Rights Act, it is the Commonwealth's responsibility and duty to resolve and alleviate any detriment flowing from this Commonwealth legislation".
On 14 June 1985 the Minister replied to the Chief Minister's letter of 12 April 1985, in the following terms:

"The policy of the Commonwealth Government is to ensure that the provision of water within the Northern Territory is not disturbed as a result of the grant of title to Aboriginal Land Trusts under the Aboriginal Land Rights (Northern Territory) Act 1976. I do not think, however, that this policy requires that land claimed forming part of a water control district should be excised from a grant unless suitable arrangements in respect of the land under Aboriginal ownership cannot be made. In the case of the Warlmanpa and Kaytej claims, there is no reason yet to reach the conclusion that the interests of the Northern Territory Government cannot be accommodated satisfactorily.

I understand that the Central Land Council has expressed a willingness to enter into negotiations regarding the land in the Tennant Creek Water Control District relating to the Kaytej and Warlmanpa land claim areas, and I would hope that your Government would wish to finalise negotiations in this matter as quickly as possible. It might be useful if these negotiations could be conducted so as to provide for all land that might become Aboriginal land in the Tennant Creek Water Control District in order that agreed arrangements in respect of the Warlmanpa and Kaytej claims could be readily extended to the relevant land in the Warumungu claim if that land is recommended for grant by the Aboriginal Land Commissioner. I have suggested this approach to the Central Land Council.

In the meantime, I am moving to have the land in both claims, with the exception of the Water Control District, granted as soon as practicable."

The Chief Minister responded to this letter on 7 August 1985. The material portion of that letter reads as follows:

"Thank you for your letter of 14 June 1985. I am heartened by your statement of the Commonwealth Government's policy to ensure that the provision of water within the Northern Territory is not disturbed by grants under the Land Rights Act.

This I take to mean that the Territory will retain all its powers under its legislation such that the Territory of its own motion and without consent would be able to fully regulate and control the land, protect the resources and environment, enable it to investigate and monitor, drill, establish permanent facilities such as bores, pumping facilities or whatever, extract water, lay pipes wherever, prevent occupation of sensitive areas which might foul the resources or obstruct the activities of the Government Agencies, and do all things necessary and convenient to the foregoing.

In the context of Water Control Districts and the Control of Waters Act, you are aware from Mr Justice Toohey's review, 'Seven Years On', that there are major problems with the Land Rights Act and in particular sections 67 and 74 of that Act, and there are doubts as to the vesting of groundwater. All need urgent legislative attention. As Toohey J. said, talking of constraints arising from section 74 of the Land Rights Act, which would prevent the Territory from drilling, laying pipes and supplying water:

'It is undesirable that these matters be left entirely to the context of a particular land claim. Section 74 should be amended to make it clear that the Control of Waters Act is capable of operating concurrently with the Land Rights Act.'

It is our firm and sincere view that under the current legislation it is neither desirable nor possible by means of covenants to make satisfactory arrangements acceptable to the Territory. The draft covenants sent to me by the Land Council would effectively deny the Territory its right to control and supply water. I believe all State Governments would find such proposals unacceptable.

I have previously put the Territory Government's position that public purpose lands, especially such land vital to the existence and the development of Central Australia, ought not be the subject of a grant under the Land Rights Act. That is not to say that under Territory legislation my Government will not make suitable arrangements for the grant of parts of the land within the District."

It may be noted, with reference to the penultimate paragraph of this letter that on 26 April 1985 the Director of Legal Services of the Central Land Council had written to an officer of the Northern Territory Department of Law enclosing a draft form of covenant "in order to resolve the concerns over water control in the Tennant Creek region."
On 10 September 1985 the Minister wrote to the Chief Minister a letter in which he referred to his intention to introduce a bill for amendments to the Land Rights Act into the Parliament at the Autumn 1986 Session. The significance of this and the reference to the interim and longer term needs of the Northern Territory in respect of the Tennant Creek water supply were much debated in submissions on the appeal. The letter of the Minister reads:

"I have given careful consideration to the interests of your Government and I am inclined to believe that a grant of the land in the Tennant Creek Water Control District (TCWCD) on the basis of assurances set out below would result in minimal, if any, detriment to your Government.

As you point out, the concerns about detriment suffered in this claim arise largely from doubts about the extent to which the Control of Waters Act (NT) is capable of operating concurrently with the Aboriginal Land Rights (Northern Territory) Act 1976.

You are aware of my intention to introduce a package of amendments to the Land Rights Act into the Parliament in the Autumn 1986 sittings. I will be recommending to Cabinet that these amendments should allow the Northern Territory Government to undertake works on Aboriginal land in accordance with the Control of Waters Act and to transport water off the land consistent with recommendations made by Mr Justice Toohey. The passage of these amendments will, therefore, fully protect the rights of the NT Government to control and use water on Aboriginal land. I intend to seek Cabinet endorsement of these amendments in the near future. I note that your Government has not put forward any firm proposals regarding intentions to carry out works on the land in the TCWCD, although I understand that it is unlikely that any major works will be carried out within the next 5 years or so. It seems likely that any work that will be carried out prior to the passage of these amendments can be done under the legislation as it currently stands. Further, I note that your Government's immediate needs may be accommodated under s14 of the Land Rights Act. I believe that the section affords your Government adequate security for the interim period prior to the passage of amending legislation in 1986. There is no reason, of course, why your Government could not enter into some form of agreement with the Central Land Council for this interim period, if you thought that was necessary."

By letter of 26 October 1985 the Chief Minister responded to the Minister's letter and reiterated the policy position stated in his letter of 7 August 1985 that public purpose lands ought not to be the subject of grant under the Land Rights Act. He said:

"I wish to emphasise again the Territory Government's support for the grant of the balance of the land in both the Warlmanpa and Kaytej land claims. However, the Government cannot support the inclusion of the land designated as a Water Control District under the Control of Waters Act, and I ask you to give further serious consideration to the detriment that will flow from any contrary action. I note that your letter of 10 September 1985 does admit the possibility of detriment.

I would also ask you again to consider directing the Central Land Council to approach me with the view of seeking the excision of areas under Territory legislation to cater for Aboriginal needs. I firmly believe that this process will prove to be the most apropriate way of reaching agreement on this complex and sensitive issue to the satisfaction of all parties concerned."

The Minister replied to that letter on 23 December 1985. He did so after receipt of a Ministerial Submission dated 6 December 1985. This recounted the history of the matter including the question of detriment and concluded as follows:

". The Northern Territory Government's concerns about detriment suffered in this claim arise largely from doubts about the extent to which the Control of Waters (NT) Act is capable of operating concurrently with Aboriginal Land Rights (Northern Territory) Act 1976 (the Act) and 'in principle' objection to the granting of public purpose lands.

. As it is unlikely major works will be carried out within the next 5 years there is little likelihood of any significant detriment in the shorter term.

. Section 14 of the Land Rights Act guarantees continued occupation or use of land by the Crown or an Authority for such periods as the land is required. Section 70 would enable access in accordance with the NT legislation and Section 74 enables regulation of activities within such a district to the extent that the Northern Territory law is capable of acting concurrently with the Act. Justice Toohey expressed the view that this would not authorise the construction of permanent facilities to draw water and pipe it to places outside the claim area.

. Detriment in the longer term would relate to having to negotiate terms and conditions for construction of new works with the Central Land Council as provided for in Section 19(3). Justice Toohey also made the following comments, 'In these circumstances, it must be a matter for a Minister to consider whether he is satisfied that there should be a grant of the land recommended, at any rate of the North Eastern Portion, unless satisfactory arrangements can be made to ensure the supply of water thereafter to be needed.' He also states, 'to the extent that the town and adjacent areas are dependent upon water, it is important that some arrangement be made guaranteeing the supply of water in the event that the land becomes Aboriginal land.'

. The Northern Territory Government has been given reasonable opportunity to come to an agreement with the Central Land Council concerning the Water Control District. There is no reason to suppose the Land Council will in the future seek to impede capital developments for water supply purposes.

. The options available to you are as follows;

(I) grant the claim area excluding the Water Control District. (no change in current position)

Current action is proceeding on this basis following your decision of March 1985 to take this action while arrangements with respect to Peko and the Northern Territory Government were finalised.

(II) grant the claim area excluding the Water Control District and announce your intention to grant the balance of the land when the Act is amended to put the interests of the NT beyond doubt and avoid potential detriment.

To reconcile potential detriment under this option suffers from uncertainty with respect to the final form and passage of amendments. With other avenues available to the NT Government, the disadvantage suffered by Aborigines in the claim area in not granting the land needs to be balanced with potential detriment to the NT Government. The 'in principle' objections to granting lands reserved for a public purpose are essentially not in our view a detriment issue.

(III) grant the claim area excluding the Water Control District and indicate this land will not be granted if the NT provides for excisions.

This is the option advocated by the NT Government. In our view denial of a land claim to public purpose lands on the basis of prospective amendments which would preclude scope for it is in effect imposing both hypothetical and retrospective criteria to the claim process.

(IV) Grant the entire claim area as soon as possible.

All issues of detriment with the exception of potential detriment to the Northern Territory Government with respect to future capital developments in the Water Control District have been resolved. This detriment issue could in our view have been resolved if the NT Government chose to negotiate with the Central Land Council. As 3 1/2 years have elapsed since Justice Toohey presented his report it is a matter for judgement whether Aboriginal interests should continue to be disadvantaged.

Suggested Response to Mr Tuxworth

. Indicates you intend to grant the entire claim area including the Tennant Creek Water Control District (TCWCD).

. Indicates you are seeking assurances from the CLC regarding cooperation in the TCWCD but you consider a formal agreement with the CLC more satisfactory.

. Correspondence in similar terms has been drafted to Bruce Donald, Director of Legal Services of the Central Land Council."

The next step shown by the evidence, is, as we have said, the Minister's letter to the Chief Minister of 23 December 1985. The contents of this letter furnished the immediate basis of the application before the trial Judge in these proceedings and we shall quote it at length:

"I have noted the Territory Government's continued support for the grant of the Warlmanpa and Kaytej land claims with exception of the area designated as a Water Control District under the Control of Waters Act. As you know legislation is proposed which will substantially accommodate the Northern Territory's position concerning the operation of the Control of Waters Act, and concerning future claims on designated public purpose lands. I am, however, satisfied that any potential detriment for the Northern Territory Government arising from a grant of all of the land in the claim area can be satisfactorily mitigated through the existing provisions of the Land Rights Act and co-operation with the Central Land Council. While it is a matter for your Government, I would have thought a formal agreement between your Government and the Land Council would enable any final reservations concerning detriment to be put to rest. I do not regard the seriousness of potential detriment to be such to warrant holding up the grant in the absence of such an agreement.

The Central Land Council has assured me of its continued willingness to make appropriate arrangements with the Territory Government to allay fears of possible detriment through a grant of the TCWCD.

Your letter indicates, however, that you have not sought to negotiate. To the extent you have proposed negotiations they are premised on the basis of an excision of the TCWCD. The Commonwealth's policy is to ensure that the provision of water within the Northern Territory is not disturbed as a result of the Land Rights Act, and I do not believe this policy requires that land claimed forming part of a water control district should be excised from a grant unless suitable arrangements in respect of the land under claim cannot be made.

It is now over 9 months since I announced my decision on the balance of the claim area and every opportunity has been provided to you and your Government to reach an agreement acceptable to both parties. I can only conclude that your reluctance to negotiate is politically motivated.

Your failure to use this period constructively can be no longer allowed to operate to deprive the Aboriginal community of the benefits of the recommendations of Justice Toohey. I am therefore informing you of my decision to recommend the inclusion of the area of the TCWCD in the Warlmanpa and Katyej land grant.

In making my decision to recommend a grant of all of the land claim area I am also mindful that over 3 1/2 years have expired since Justice Toohey reported on this claim and that all other issues of detriment have been resolved. Further delays in granting the land would seriously disadvantage Aboriginals in the claim area. I am sure you would also recognise, whatever your views on granting public purpose lands, that it would be unjust to change retrospectively the basis upon which land claims were heard and dealt with."

It is apparent from the Minister's letter of 23 December 1985 that his response was consistent with option (IV) in the Ministerial Submission of 6 December 1985, although there was no direct evidence as to the reasoning which led the Minister to the conclusions communicated in that letter.
No formal steps had been taken by the Minister to implement his recommendation to the Governor-General when these proceedings for review under the ADJR Act were instituted.

Jurisdiction

The first respondent, by notice of contention, challenged the jurisdiction of the Court to entertain the application for review. He submitted that the primary Judge had erred in holding that the decision under review did not fall within the exclusion in sub-s.3(1) of the ADJR Act of decisions "by the Governor-General". Paragraph 11(1)(e) of the Land Rights Act provides that in the circumstances there described the Minister "shall ... recommend to the Governor-General that a grant of an estate in fee simple" be made. Paragraph 12(1)(b) provides that on receipt of such a recommendation "the Governor-General may ... execute a deed of grant of an estate in the land in accordance with the recommendation and deliver it to the Land Council referred to in the recommendation...".
Section 16A of the Acts Interpretation Act 1901 produces the result that, in the absence of the contrary intention, these powers or functions conferred on the Governor-General are to be read as referring to the Governor-General acting with the advice of the Federal Executive Council. It was not contended before us that there was any contrary intention in ss. 11 and 12 of the Land Rights Act to displace the operation of s.16A. An example of such a contrary intention is provided by s.19A of the Crimes Act 1914 which was considered in Thongchua v. Attorney-General for the Commonwealth of Australia (1986) 66 ALR 340. That section, in terms, vested the power in question in the Governor-General acting with the advice of the Attorney-General.
We should add that, at this stage, there have been no decisions by the Governor-General in Council. This is because, as we have mentioned, the Minister deferred taking steps to give effect to his decisions to recommend grants under s.11(1)(e) of the Land Rights Act. Nevertheless, it was submitted that the application for review of the decisions of the Minister was an impermissible attempt to obtain in advance judicial review, by collateral means, of what would be the otherwise unreviewable decisions of the Governor-General in Council.
To assess this submission it is appropriate to turn first, and briefly, to the position of the Federal Executive Council. Section 62 of the Constitution provides for a Federal Executive Council to advise the Governor-General in the government of the Commonwealth. However, other provisions of the Constitution (ss. 32,33,54,67,70,72,83,103) vest a number of functions in the Governor-General in Council. Section 63 of the Constitution requires that provisions in the Constitution which refer to the Governor-General in Council be construed as containing references to the Governor-General acting with the advice of the Federal Executive Council. In addition, various legislation has vested powers and functions in "the Governor-General" and, as we have noted, in the absence of the contrary intention, this refers to the Governor-General in Council. Sections 11 and 12 of the Land Rights Act provide examples.
The question of the amenability at general law of decisions of the Governor-General in Council to judicial review has been a vexed one. But, putting to one side issues that may still arise where a power or function is vested by the Constitution itself in the Governor-General in Council, it is now settled that, where legislation is the source of the power or function in question, judicial review under the general law is not precluded by the identity or nature of the Executive Council or the office of the Governor-General in what otherwise would be an appropriate case for judicial review for ultra vires or denial of natural justice: The Queen v. Toohey; Ex parte Northern Land Council (1981) 151 CLR 170; F.A.I. Insurances Ltd v. Winneke (1982) 151 CLR 342.
As the primary Judge in this case pointed out, what is now settled law was not so when the ADJR Act was passed. The reservation from review of decisions of the Governor-General under any enactment (ADJR Act, sub-s.3(1)) may be seen as reflecting what was orthodox thinking in 1977 as to the scope of judicial review at general law. It should also be borne in mind that, at general law, and quite apart from the above difficulties with respect to review of Federal Executive Council decisions, the determination of the Minister in the present case to recommend inclusion in the grants of the Tennant Creek Water Control District (evinced by the letter of 23 December 1985) might not have attracted judicial review. The objection may have been that review would be premature as there were not as yet any decisions "affecting rights": cf Testro Bros. Pty. Ltd. v. Tait (1963) 109 CLR 353.
On the other hand, the application of the ADJR Act to the decisions involved in this present litigation is not completely at odds with the situation at general law. This is so because there has been no general law immunity from judicial review in cases where (a) legislation laid down conditions precedent to the exercise of the power of the vice-regal representative in Council, (b) the issue was whether that condition precedent had been satisfied and (c) judicial review took place (as in the present case) before the matter had gone to the Council: e.g. Brettingham-Moore v. Warden, Councillors and Electors of Municipality of St. Leonards (1969) 121 CLR 509 at 525. Nor has there been immunity from judicial review at general law where the decision-maker was not the Governor-General in Council, but a Minister: The Queen v. Toohey (supra) at 192, 202-204, 223-224, 234-235.
These complexities and uncertainties of the general law are dissolved by the ADJR Act in its operation upon the various steps provided for by s.11 of the Land Rights Act. As Gibbs C.J. observed in The Queen v. Kearney; Ex parte Northern Land Council (1984) 158 CLR 365, s.11 of the Act, in its application to cases such as the present, posits as independent discretions (a) the recommendation of the Minister to the Governor-General in Council and (b) the advice of the Federal Executive Council that the Governor-General make the proposed grant of land to the Land Trust in question. The first of these steps is a decision to which the ADJR Act applies viz, "a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment ...." The second would also be of this character, but for the exclusion from the definition of decisions by the Governor-General in Council. In our view the exclusion of the second decision from review does not bring the first decision within the protective umbrella of that exclusion.
In this setting, undoubtedly it is true that the participation of the Governor-General is formal in the sense that the advice tendered by the Executive Council must be accepted. In any event, ss. 11 and 12 of the Land Rights Act vest powers or functions only in the Governor-General acting on the advice of the Federal Executive Council. Without that advice the power or function has not been exercised. No power or function is reposed in the Governor-General as such by these provisions of the Land Rights Act. Further, in considering the position of the Federal Executive Council, one should bear in mind both the careful procedures which attend the tender and content of submissions to the Federal Executive Council (as to which see Sankey v. Whitlam (1978) 142 CLR 1 at 52-53) and the composition of the Federal Executive Council as a collegiate body which, on a particular occasion, may include Ministers other than the Minister from whom the business in hand comes. See generally, F.A.I. Insurances Ltd. v. Winneke (supra) at 364-5, 383, 400-401; Sawer "Councils Ministers and Cabinets in Australia" (1956) Public Law 110 at 120-122; and Crisp "Australian National Government" 4th Ed., 1978, pages 350-352. It is difficult to see how for the purposes of the ADJR Act an organ of government such as the Federal Executive Council does not reach a decision distinct from, albeit sequential to, that of a Minister exercising a power under an Act to make a recommendation to the Federal Executive Council.
As we have already noted, the first respondent submitted that to review the decisions of the Minister in this case to make recommendations to the Governor-General in Council would be to expose the latter body to collateral attack. That assumes an identity in the nature and quality of the powers and functions reposed by the Land Rights Act in the Minister and the Governor General in Council which in our view does not exist. Also to point to the limited role of the Governor-General is not to deny that the Governor-General in Council is a decision-maker for the purposes of the ADJR Act. Indeed, the existence of the exception in favour of that organ of government, to shield it from review, suggests the contrary.
The first respondent relied upon the decision of the Full Court of this Court in Thongchua v. Attorney-General for Commonwealth of Australia (supra) as support for the proposition that the decisions of the Minister in this case to recommend actions to the Governor-General in Council were immune from review. This reliance was not well placed. The statutory provision at the centre of the earlier case was, as we have already mentioned, not one which vested any power in the Governor-General in Council. The majority of this Court took the view that under that legislation only one decision was made for the purposes of the ADJR Act, that of the Governor-General upon the direct and sole advice of a particular Minister. This decision then fell within the words of exclusion from the application of the ADJR Act.
Accordingly, our conclusion is that the primary Judge correctly reached the view that he had jurisdiction under the ADJR Act.

Grounds of Appeal

In his notice of appeal the appellant challenged the first respondent's decisions on various grounds, some of which were abandoned during the hearing of the appeal. Three grounds are now relied on by the appellant.
The first of these is that, when making his decisions, the first respondent took the view that a legally binding agreement could be made between the Northern Territory and the Central Land Council on behalf of the traditional owners of the land in relation to the future development and use of water resources in the Tennant Creek Water Control District before the grant of the relevant land was made to a Land Trust. The primary Judge found that if the Minister had approached the matter on this basis he would have erred in law in respect of a material matter so that any decision to proceed with a recommendation for a grant would have been vitiated. His Honour found that the first respondent did not take this view.
After a grant of land has been made by the Governor-General to a Land Trust, pursuant to sub-s. 12(1) of the Land Rights Act, the Land Trust may, at the direction in writing of the relevant Land Council, grant a lease or licence in respect of land vested in it to the Northern Territory for any public purpose (sub-s. 19(3)). Obviously that power cannot be exercised before the Land Trust acquires title to the land. A power of negotiation is expressly conferred upon Land Councils by para. 23(1)(e) of the Land Rights Act; but it is plain from the language of that provision that the power of negotiation to which it refers cannot be invoked before the grant of the land has been made to the Land Trust. Of course, there is no bar to a Land Council engaging in informal discussions or negotiations before the land grant is made. Indeed, in the ordinary course of events it would not be unusual for a grant of land to be preceded by negotiations between the relevant Land Council and the persons desiring to use, occupy or obtain an interest in the land. The legal right of a Land Council to negotiate an agreement between it on behalf of the traditional owners and third persons can only arise, however, once the grant is made. A legally binding agreement is not possible before the grant of title.
It is clear from the correspondence that the Minister correctly understood the position and was under no misapprehension that a legally binding agreement for the future use and development of the land within the Warlmanpa and Kaytej land claims could be made between the Central Land Council and the Northern Territory Government before the land was granted to the Land Trust.
The letter dated 23 September 1983 from the Department of Aboriginal Affairs to the Department of the Chief Minister stated:

"Although neither a Land Council nor a Land Trust can be legally bound by any undertakings given before the land becomes Aboriginal land, it is reasonable to expect that undertakings which have been given in these cases will be honoured."

The first respondent said in his letter dated 25 October 1983 to the Chief Minister:

"... I expect that your Government will wish to enter into an agreement with the relevant Aboriginal Land Trust in respect of the development and use of water supply facilities in the Tennant Creek West Borefield area. The agreement would be signed immediately after the title has been granted to the Land Trust."

Counsel for the appellant based his submission essentially upon the following passage in the letter dated 23 December 1985, in particular the words which we have emphasised:

"... I am, however, satisfied that any potential detriment for the Northern Territory Government arising from a grant of all the land in the claim area can be satisfactorily mitigated through the existing provisions of the Land Rights Act and co-operation with the Central Land Council. While it is a matter for your Government, I would have thought a formal agreement between your Government and the Land Council would enable any final reservations concerning detriment to be put to rest. I do not regard the seriousness of potential detriment to be such to warrant holding up the grant in the absence of such an agreement."

The underlined passage must be read in the context of the correspondence as a whole passing between the two Governments with respect to the Warlmanpa and Kaytej land claims and, in particular, to the question of the future use of the land within the Tennant Creek Water Control District. The discussions and correspondence between the two Governments relating to this matter had been proceeding for years. The first respondent recognised that the grant of land included within the Tennant Creek Water Control District could have a substantial detrimental effect on the development of the township of Tennant Creek; but he held the view that satisfactory arrangements could be made between the Central Land Council and the Northern Territory Government to secure the future supply of water for the township.
It was open to the Northern Territory Government to negotiate with the Central Land Council before the land grants were made with a view to securing agreement in principle as to the security of the future supply of water for Tennant Creek. A legally binding agreement could not be reached because the land had not been granted to the Land Trust; but, in his letter of 23 December 1985, the first respondent was saying that the Commonwealth had given every reasonable opportunity to the Northern Territory, in particular over the previous nine months, to discuss the future land use with the Central Land Council preparatory to the making of the grants and that the Northern Territory had done nothing about it. The fair interpretation of the expression "formal agreement", when read in the context of the whole of the letter of 23 December 1985 and the correspondence generally, is that the first respondent was alluding to the possibility of the Northern Territory making an agreement in principle, not legally binding, but in the nature of heads of agreement or an informal arrangement which might be consummated by legally binding agreements after the land grants had been made. This attack on the first respondent's decisions fails.
The first respondent's decisions were challenged on a second ground, namely, that he had taken into account the possibility of future Commonwealth legislation being enacted to secure the availability of water resources to the township of Tennant Creek in mitigation of the detriment which the Northern Territory Government would otherwise suffer. It was submitted that it was impermissible for a decision-maker to take into account, for the purposes of exercising an administrative discretion, the possibility of an amendment to the law.
Reliance was placed in support of this proposition upon various cases including: Ramsey v. Aberfoyle Manufacturing Co. (Aust.) Pty. Ltd. (1935) 54 CLR 230 especially per Starke J. at 253; Willow Wren Canal Carrying Co. Ltd. v. British Transport Commission (1956) 1 WLR 213 at 216; R. v. Whiteway; Ex parte Stephenson (1961) VR 168 at 171; Fitzgerald v. Muldoon (1976) 2 NZLR 615 at 621-3; In Re S (Infants) (Adoption by Parent) (1977) Fam 173 at 176-7; Sydney City Council v. Ke-Su Investments Pty. Ltd. (1985) 1 NSWLR 246 at 257; and Wingate Holdings Pty. Ltd. v. Pan Continental Gold Mining Areas Pty. Ltd. 1986, judgment of the Full Court of the Supreme Court of Western Australia (Burt C.J., Wallace and Olney JJ.), 28 February 1986, unreported.

While placing emphasis on the effectiveness of the existing legislation, the first respondent recognised its deficiencies. The letter dated 10 September 1985 adverted to the absence of provisions in the Control of Waters Act (N.T.) which would authorise the construction of permanent facilities to draw water from the Tennant Creek Water Control District and pipe it outside the claim areas, a matter adverted to by Toohey J. in the report dated 26 March 1982 (par.126) and in his report "Seven Years On" (par.209). The letter also referred to the doubt as to the extent to which s.74 of the Act preserves the operation, in relation to Aboriginal land, of the provisions of the Control of Waters Act (N.T.) either in its existing form or as it might be amended to remove the deficiency mentioned above. Notwithstanding this, it was suggested that any work that was required to be done in the foreseeable future could be done under the legislation as it currently stood. In this latter regard it is not without significance to refer to the proposed covenants suggested by the Central Land Council. The first of those covenants proceeded on the basis, for which there is no foundation, that agreement between the parties could provide a foundation for the application to Aboriginal land of the Control of Waters Act (N.T.) and that it could do so conditionally.
The relationship between s.74 of the Act and the Control of Waters Act (N.T.) in its present form is not a matter for resolution in this appeal. For one thing the question has not been the subject of full argument. However, it cannot be said that the matter is so free from doubt that it provides a satisfactory answer to the perceived detriment concerning the future water supply to the township of Tennant Creek. In any event, I do not understand the first respondent to have taken that view. Nor can it be postulated in advance that pursuant to s.74 of the Act any amendments to the Control of Waters Act (N.T.) to remove the deficiencies to which reference has been made would operate in relation to Aboriginal land.
Another provision of the existing legislation, s.14 of the Act, was also referred to in the letter dated 10 September 1985 as providing adequate security to the Northern Territory in the period prior to the passage of the proposed amending legislation. This suggestion appears to have no foundation whatever.
The reference in the correspondence to amending legislation was to proposals which the first respondent intended to put to Federal Cabinet seeking its approval to the introduction into the Parliament of a Bill to amend the Act with a view to removing the identified deficiencies. A timetable was suggested for these amendments, a timetable which, in the event, has not been met.
The matters which, by virtue of pars (b) and (c) of s.50(3) of the Act, the first respondent was bound to take into account have been clearly identified in the Commissioner's reports in connexion with the land claims, in the report entitled "Seven Years On" and in the correspondence. There is nothing in the evidence to suggest that the detriment is other than real and the first respondent has not contended to the contrary. It cannot be said that it was inherently of no, or no substantial weight. Clearly the possibility, for it is nothing more, that the Act may be amended to ensure that the Northern Territory has ample power to secure the future water supply needs of the township of Tennant Creek provides no ground upon which to discount the detriment. Nor, in view of the deficiencies that have been identified, does the existing legislation provide any foundation for its mitigation. Nor was there material before the first respondent upon which he could be satisfied that arrangements ensuring the future water supply for the township could be put in place. Apart from the suggested covenants to which reference has been made, covenants which on any view were entirely inappropriate and insufficient, there was no relevant material. It has not been shown that the first respondent had more than a hope or expectation that satisfactory arrangements could be put in place. He had before him no definitive proposals as to the sufficiency of which he could form an opinion. Further, the recognised effect which the grants could have on the future development of the township of Tennant Creek is not to be ignored because of the failure of the Northern Territory Government to enter into negotiations with the Central Land Council even if its failure to do so was, as the first respondent seemed to think, politically motivated.
The examination which I have made of the decision-making process leads me to the conclusion that the first respondent, in exercising his power under s.11(1)(b) of the Act, failed to take into account the matters referred to in pars (b) and (c) of s.50(3). The effect of what the first respondent did was to acknowledge that to grant the land claims could result in the existence of a substantial detriment in relation to the securing of the future water supply needs of the township of Tennant Creek but to give that detriment no place in the deliberative process. In justification the first respondent relied on the matters to which I have referred but those matters, as I have shown, provide no foundation for the approach taken. It may be said that what the first respondent did was to take into account irrelevant considerations but, to my mind, the defect in the decision-making process is more fundamental. The evidence does not establish that this is a case in which the first respondent formed a different view from either Toohey J. or the Northern Territory as to the seriousness of the detriment that would attend the grants in the absence of reasonably adequate protection for the present and future requirements of the township of Tennant Creek. Nor does it seem to me that this is a case in which, weighing up the relevant considerations, the first respondent gave greater weight to one factor than other minds might do. That would, of course, be a matter for the first respondent and would provide no basis for the Court's intervention. It is a matter for the first respondent to determine how those conflicting interests are to be resolved. But, in my opinion, the first respondent has not properly assayed the task committed to him by the legislative provisions. The result is that the exercise of the discretion which s.11(1)(b) conferred on the first respondent miscarried.
I am unable to accept the submission put on behalf of the first respondent that, in the event that the appellant established a case for relief, that relief should be denied on discretionary grounds.
The appeal should, in my opinion, be allowed with costs, the judgment appealed from set aside and, in lieu thereof, it be ordered that the decision of the first respondent evidenced by the letter dated 23 December 1985 be set aside and that the first respondent pay the costs of the proceedings from which the present appeal is brought.

[1987] FCA 388

23 JULY 1987