The Attorney-General for the Northern Territory of Australia v The Honourable Sir Kearney, W.J

[1990] FCA 334

Re: THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA
And: THE HONOURABLE SIR WILLIAM JOHN KEARNEY, ABORIGINAL LAND COMMISSIONER;
NORTHERN LAND COUNCIL and DRIFFIELD MINING PTY LTD
No. DG53 of 1990
FED No. 334
Aboriginal Land Claim - Judicial Review
25 FCR 408

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Morling(1), Beaumont(1) and Lee(1) JJ.

CATCHWORDS

Aboriginal Land Claim - grant of exploration licence after making of land claim - whether exploration licence is an estate or interest in land for the purposes of s.67A of the Aboriginal Land Rights (Northern Territory) Act 1976.

Judicial Review - whether determination of discrete question of law under Land Rights Act is a "decision" under Administrative Decisions (Judicial Review) Act 1977 - whether jurisdiction under s.39B of the Judiciary Act 1903 or by virtue of the cross-vesting legislation - declaratory relief - whether proper contradictor - discretion.

HEARING

DARWIN

#DATE 10:7:1990

Counsel and solicitors for the applicant: T. Pauling QC (Solicitor- General for the Northern Territory) instructed by the Solicitor for the Northern Territory

Counsel and solicitors for the first respondent: L Woodward instructed by the Australian Government Solicitor

Counsel and solicitor for the second respondent: B I Midena

Counsel and solicitor for the third respondent: S J O'Reilly

ORDER

1. Driffield Mining Pty. Limited be added as a third respondent.

2. Declare that the exploration licences held by the third respondent known as EL5383, EL6229 and EL(A) do not constitute an estate or interest in land for the purposes of s.67A of the Aboriginal Land Rughts (Northern Territory) Act 2976.

3. No order as to costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an application under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") by the Attorney-General for the Northern Territory of Australia for review of a decision of the first respondent, the Honourable Sir William Kearney ("the Commissioner"), given in his capacity as an Aboriginal Land Commissioner pursuant to the provisions of Part V of the Aboriginal Land Rights (Northern Territory) Act 1976 ("the Act").

The background

1. Between 1978 and 1983 a series of claims were made under the Act in respect of land in and near the Upper Daly Basin in the Northern Territory. These claims became known as the Upper Daly Land Claim. The second respondent is a statutory body incorporated under Part III of the Act and made an application to the Commissioner under s.50(1) of the Act on behalf of Aboriginals claiming to have a traditional land claim to certain areas within the abovementioned land.

2. Driffield Mining Pty. Limited ("Driffield"), the third respondent, was added as a party at a late stage in the proceedings in circumstances to be explained later in this judgment.

3. For the purposes of disposing of the present application it is unnecessary to refer in any detail to the history of the Upper Daly Land Claim. It is sufficient to say that on 22 March 1990 the Commissioner made a report containing a number of findings, comments and recommendations, including a finding that there were traditional Aboriginal owners of some of the land claimed and recommendations that certain lands identified in the report be granted to specified Land Trusts.

4. In making a report in connection with a traditional land claim, a Commissioner is required to have regard to the strength, or otherwise, of the traditional attachment by the claimants to the land claimed, and to comment on, inter alia, detriment to persons that might result if the claim is acceded to, either in whole or in part: s.50(3)(b) of the Act (see, generally, R v. Toohey; Ex parte Meneling Station Pty. Ltd. (1983) 158 CLR 327).

5. Certain lands within the area of the Upper Daly Land Claim were the subject of exploration licences and mineral leases granted pursuant to Part IV of the Mining Act 1986 (N.T.). In his report, the Commissioner addressed the question whether the granting of the application would cause detriment to the holders of these licences and leases. He said:
   

"140. Appendix 1 is a ruling made during the inquiry on the admission into evidence of certain Northern Territory Government materials on mining. It discusses the concept of 'detriment' with particular reference to mining; a factual basis for detriment must be laid before comment under s.50(3)(b) of the Act is required. Part IV of the Act deals with mining on Aboriginal land; its provisions taken alone do not constitute detriment. Owners of mining interests seeking comment under s.50(3)(b) must show that their activities on the land in question have been such that it can fairly be said that detriment to them might result from a grant; ...

141. Six exploration licences have been granted, and one applied for, in relation to parts of Area 1 west of Dorisvale; in that area there are also eight mineral leases...These mining interests are shown on the plan item 16 in Exhibit 104. Item 13 in Exhibit 104 discloses the following details of the mining interests mentioned above:-

Mining interest Owner Date effected Mineral leases Baroid Australia 12 March 1973

(North) nos. 701, Pty. Ltd. 702, 703,

706-710

.....

EL 4904 and Top End Mineral 20 March 1986 EL 4905 Ventures Pty Ltd EL 4821 Driffield Mining P/L 21 May 1987 EL 5383 Driffield Mining P/L 13 August 1987 EL 6229 Driffield Mining P/L 11 Oct 1988 EL (A) 6080 Driffield Mining P/L The amalgamated claim by the claimants and others was made on 11 April 1983. Section 67A(1)(b) of the Land Rights Act came into force on 5 June 1987. Its effect in this case is that EL 5383, EL 6229 and EL(A) 6080 are deemed to be of no effect. This effect of s.67A does not as such amount to detriment, in terms of s.50(3)(b); see para.140 above. The other mining interests listed above will not be affected by a grant of the land. They do not fall within the scope of s.67A of the Act. Pursuant to s.66 they constitute estates or interests for the purposes of Part VII of the Act; the owners of those interests are entitled under s,.70(2) to enter and remain on the land for any purpose necessary for the use or enjoyment of their interests; their access to the land for that purpose is provided for by s.70(4)-(6).

142. No owners of mining interests have sought to give evidence in the inquiry in relation to the lands recommended for grant; it is reasonable to conclude that they have not as yet considered that they might suffer detriment from a grant." (Emphasis added)

1. The applicant's contention is that the Commissioner was in error in finding that the effect of s.67A(1)(b) is to deem exploration licences granted pursuant to the Mining Act to be of no effect. His counsel submits that s.67A(1)(b) has no effect on mining interests granted after a claim has been lodged and that, accordingly, the exploration licences are unaffected by the making of the application, which was made under s.50(1)(a) of the Act.

2. Section 67A(1), which was added to the Act in 1987, provides as follows:
   

"67A. (1) Where an application referred to in paragraph 50(1)(a) in respect of an area of land was made before the day of commencement of this section -

(a) any grant of an estate or interest in that area of land, or in a part of that area of land, that was purportedly effected on a day before that traditional land claim, in so far as it related to the area of land to which the grant relates, was finally disposed of, being a day after 28 May 1986 and before the day of commencement of this section, shall be taken to be, and at all times to have been, of no effect; and

(b) any grant of an estate or interest in that area of land, or in a part of that area of land, that was purportedly effected on a day before that traditional land claim, in so far as it relates to the area of land to which the grant relates, is finally disposed of, being the day of commencement of this section or a later day, shall be of no effect."

1. It is common ground between the parties that the exploration licences in question were granted after the date of the making of the amalgamated land claim application and after s.67A commenced. It is also common ground that the area of land recommended for grant by the Commissioner, which includes the area covered by the exploration licences, is not yet Aboriginal land. Counsel for the applicant submits that the grant of an exploration licence is not the grant of an estate or interest of that land within the meaning of s.67A(1)(b) of the Act. He relies upon s.3(2) of the Act which provides, in part, as follows:
   

"(2) Unless the contrary intention appears, a reference in this Act to an estate or interest in land includes a reference to an interest by way of a right against the Crown to a grant of an estate or interest in land, but does not include a reference to -

(a) a mining interest;

(b) ..."

"Mining interest" is defined in s.3(1) as follows:

"'mining intererst' means any lease or other interest in land (including an exploration licence) granted under a law of the Northern Territory relating to mining for minerals other than a lease or other interest in land, or a right, granted under a law of the Northern Territory relating, in whole or in part, to the mining or development of extractive mineral deposits, but in Part IV does not include an exploration licence or exploration retention lease;"

1. Since s.67A is contained in Part VII of the Act, the reference, in the above definition, to Part IV is of no application in the present case.

2. Section 66 of the Act provides, inter alia, that a reference in Part VII to an estate or interest in Aboriginal land includes a reference to a mining interest. However, it is common ground between the parties that the area of land recommended for grant by the Commissioner, which includes the area covered by the exploration licences, is not, at the present time at least, Aboriginal land. Such land is defined in s.3(1) as meaning (a) land held by a Land Trust for an estate in fee simple or (b) land the subject of a deed of grant held in escrow by a Land Council. The subject land does not fall within either of these categories.
   The joinder of Driffield

3. When the application was called on for hearing, the need to join Driffield, as the holder of the exploration licences in question, as a party to the proceedings was raised. We directed that it be added as a respondent, which was done. Subsequently, it appeared and supported the application.
   Jurisdiction

4. The first question for determination is whether the ruling of the Commissioner that the exploration licences were deemed, by virtue of the operation of s.67A, to be "of no effect" is a "decision" to which the Judicial Review Act applies.

5. By s.3(1) of the Judicial Review Act, a "decision" to which that Act applies is defined, relevantly, as "a decision of an administrative character made...under an enactment..."

6. In Director-General of Social Services v. Chaney (1980) 31 ALR 571, Deane J., Fisher J. concurring, said (at p 591):
   

"A reference to 'decision' in the (Administrative Appeals Tribunal) Act is, prima facie, a reference to the ultimate or operative determination rather than a reference to an adjudication or determination of issues arising in the course of making such an ultimate or operative determination."

1. It is true that not every opinion expressed by a decision-maker in the course of his reasoning towards a conclusion is a "decision" to which the Judicial Review Act applies (see National Companies and Securities Commission v. Bankers Trust Australia Ltd. (1989) 91 ALR 321 per Lockhart J. at p 323). It is also true that the principal functions of the Commissioner, as described in s.50 of the Act, are to inquire into, and report on, land claims. But by s.51 of the Act, the Commissioner is empowered to do all things necessary or convenient to be done for or in connection with the performance of his functions. Where, as here, a discrete question of law arises as to the possible operation of s.67A on a mining interest, in our opinion, s.51 empowers the Commissioner to "decide" that question, even if, strictly speaking, he is acting in an administrative capacity. It may follow that the Commissioner's decision that s.67A applied here was a reviewable decision under the Judicial Review Act.

2. But we need not decide whether this is the case. Even if there was here no "decision" under the Judicial Review Act, the Court's jurisdiction is attracted under s.39B of the Judiciary Act 1903 or by virtue of s. 4(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987.
   The meaning of "estate or interest" in land for the purposes of s.67A.

3. Ordinarily, the grant of a mere licence does not create an estate or interest in land under the general law (see Meneling Station, above, at pp 332, 340-344, 350-4; 363-4). Moreover, as has been noted, by s.3(2) (as explained by the definition of "mining interest" in s.3(1)), unless a contrary intention appears, a reference in the Act to an estate or interest in land does not include a "mining interest", that is to say - "any lease or other interest in land (including an exploration licence) granted under a law of the Northern Territory relating to mining for minerals...but in Part IV does not include an exploration licence..." (emphasis added); there is also excepted from this definition certain mining rights, not here relevant, relating to "extractive mineral deposits").

4. As has been said, s.67A is in Part VII of the Act, so that the exception of Part IV from the definition of "mining interest" is not presently material.

5. It follows, in our view, that, unless a contrary intention appears, by virtue of s.3(2), an exploration licence of the kind granted to Driffield is not deemed an estate or interest in land for the purposes of s.67A. In our opinion, there is no such contrary intention. As has been said, under the general law a licence, as distinct from a lease, does not usually create an interest in land. There is nothing in the statutory context to suggest that an exploration licence is given the elevated status of an interest in land. In the circumstances, we hold that the Commissioner erred in his construction of s.67A.

6. (It should be noted that it is common ground that if a land grant were to be made here pursuant to s.12 of the Act, the exploration rights conferred upon Driffield by the Mining Act would nonetheless be preserved by virtue of the operation of s.70(1) of the Act.)
   Relief

7. By s.16 of the Judicial Review Act, the Court is given a wide discretion as to the appropriate form of relief (see Minister for Immigration and Ethnic Affairs v. Conyngham (1986) 68 ALR 441 at pp 448-9). The applicant seeks an order in these terms:
   

"THE COURT DECLARES THAT for the purposes of the Aboriginal Land Rights (Northern Territory) Act a 'mining interest' is not an 'estate or interest' in land that is not 'Aboriginal land'."

1. We think that relief should be granted, but it should be limited in its operation to the present circumstances. In our opinion, declaratory relief should be granted but only for the puposes of s.67A and in relation to Driffield's exploration licences. What is now sought by the applicant would go beyond this and we decline so to order.

2. It should be noted that, in our view, the applicant has "secured" a "proper contradictor" (see Young, Declaratory Orders, 2nd ed. at p 10). The second respondent was properly joined and, no doubt, if a contrary contention had been reasonably arguable, it might reasonably be expected that the second respondent would have contested the grant of any relief. The present point is not an academic one and the second respondent has taken the approach that, because the contrary argument is not tenable, it does not oppose the grant of appropriate declaratory relief.

3. The applicant seeks no relief in addition to the grant of the declaration. In the circumstances, we do not propose to make any further orders.

4. We have been informed that none of the parties seeks an order for costs.

5. We propose to make the following orders:
   

1. Order that Driffield Mining Pty. Limited be added as a third respondent.

2. Declare that the exploration licences held by the third respondent known as EL5383, EL6229 and EL(A) do not constitute an estate or interest in land for the purposes of s.67A of the Aboriginal Land Rights (Northern Territory) Act 1976.

3. No order as to costs.