FEDERAL COURT OF AUSTRALIA

Huddleston v Aboriginal Land Commissioner [2010] FCAFC 66

THE COURT DECLARES THAT:

1.         The determinations of the Aboriginal Land Commissioner made on 2 December 2009 under s 67A(7) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) with respect to the applications referred to in Schedule A are invalid and of no effect. 

THE COURT ORDERS THAT:

2.         An order in the nature of certiorari issue to quash the determinations of the Aboriginal Land Commissioner made on 2 December 2009 under s 67A(7) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) with respect to the applications referred to in Schedule A. 

3.         The second respondent pay the applicants’ costs of the proceedings in this Court.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                          Mr Huddleston is one of six claimants (the applicants) who have made traditional land claims under s 50(1)(a) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the Act) in respect of areas of unalienated Crown land in the Northern Territory.  Those claims are summarised in Schedule A to these reasons.  Pursuant to s 67A(7) of the Act, the Aboriginal Land Commissioner (the Commissioner) – who has the function under that section of inquiring into such an application – requested each of the applicants in writing to provide further information in relation to their application within six months.  On 2 December 2009, the Commissioner determined that the claimants had not provided the information sought.  Accordingly, the land claims of the claimants were “taken to have been finally disposed of” by virtue of s 67A(7) of the Act.

2                          Section 67A(7) of the Act came into force on 1 October 2006.  It provides:

If:

(a)        an application has been made under section 50 by or on behalf of Aboriginals claiming to have a traditional land claim to an area of land; and

(b)        after the commencement of this subsection, the Commissioner requests the applicants, in writing, to provide further information in relation to the application within a period specified in the request (which must be at least 6 months from the making of the request) and the Commissioner determines in writing that the further information is not provided within that period;

the traditional land claim is taken to have been finally disposed of.

3                          The applicants now seek to challenge the Commissioner’s determinations and to have this Court quash the determinations made by the Commissioner.  It is said on behalf of the applicants that the Commissioner’s decision miscarried, essentially because of a failure on his part to accord the applicant procedural fairness before making his determination. 

4                          We propose to set out the factual background only to the extent necessary to provide an understanding of the grounds of the applicants’ challenge to the decision of the Commissioner.

The factual background

5                          On 24 April 2009, the Commissioner wrote to the Northern Land Council (the NLC) as representative of each of the claimants.  The Commissioner said:

... I have decided to issue requests under s 67A(7) in relation to each matter.  The requests will seek information in terms of paragraph 10 of the practice directions and will require the information to be provided within 6 months.  I will however be prepared to consider any reasonable request for an extension of time where a genuine effort is being made to provide the requested information.

6                          The requests for information foreshadowed in the Commissioner’s letter of 24 April 2009 were made on 19 May 2009 and received by the NLC on 22 May 2009.  There were ten requests in all relating to ten land claims including the six claims made by the applicants.  The requests were accompanied by this indication by the Commissioner:

… I will be prepared to consider any reasonable request for an extension of time beyond the period of 6 months specified in the requests in the event that I am satisfied that a genuine effort is being made to provide the requested information.

7                          The information sought by each request was extensive.  It is not necessary to set the requests out at length because it has not been argued that the information sought was not relevant to each claim.  In short, the Commissioner requested further information concerning land tenure, personal details and of an anthropological nature designed to assist his inquiry into whether the applicants satisfied the definition of ‘traditional Aboriginal owners’ that appears in s 3(1) of the Act.

8                          By letter dated 18 November 2009 from the NLC to the Commissioner the claimants advised the Commissioner that:

(a)        the Commissioner’s requests of May 2009 had been mislaid by officers of the NLC;

(b)        the NLC had been engaged in attempts to negotiate a settlement in relation to access to commercial and recreational fishing in tidal waters. Each of the claims was said to concern tidal waters, and the resolution of each claim was said to involve a “consideration of the law as stated by the High Court on 30 July 2008 in the Blue Mud Bay case (Gumana v Northern Territory)” [Northern Territory v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24]. 

(c)        the NLC had prioritised its resources to those negotiations and to the provision of housing on Aboriginal land; and

(d)        the NLC’s legal and anthropological branches had been working to capacity on those other commitments during 2009.

9                          In the upshot, the NLC’s letter sought an extension of the six month period set by the letter of 19 May 2009.  The NLC’s letter, written by its Principal Legal Officer, concluded:

Later this week I anticipate meeting with the NLC anthropology branch manager, Robert Graham, and responsible solicitors to identify a proposed timeframe to respond to the notices should you be minded to grant an extension.  Upon doing so I shall further write to you with that proposal with a view to assisting in your consideration of this matter.

10                        It may be noted here that the NLC was, in terms, seeking an extension of time to comply with the Commissioner’s original request.  Section 33(3) of the Acts Interpretation Act 1901 (Cth) (the Acts Interpretation Act) permits the fixing by the Commissioner of an extended period for complianceby varying the terms of the request instrument under subsection (3).  However, it may also be noted that s67A(7) does not oblige the Commissioner to make a determination one way or the other upon the expiration of the period nominated in a request and so it would appear open to applicants at any time to ask the Commissioner to ‘extend’ the effective date of compliance by indicating that he will not make a determination until a certain date later than the date of expiration of the compliance period.

11                        On 20 November 2009, the Commissioner responded to the NLC’s letter noting that, as was the fact, only four of the claims the subject of the ten requests were claims to tidal lands.  On that basis, the Commissioner assumed that the NLC’s request for an extension of time applied only to those four claims to tidal areas.  The Commissioner advised that he would take no further action on those four claims without first giving the NLC notice. 

12                        On the same day, the NLC responded saying that the request for an extension related to all ten requests for information.  The NLC’s Principal Legal Officer said:

… I met yesterday with the NLC’s anthropology branch manager, Robert Graham, and responsible solicitors to identify a proposed timeframe to respond to all  notices should you be minded to grant an extension.

In light of your advice I propose to meet further with Mr Graham, and write to you early next week to further substantiate the requests for an extension of time in relation to all 10 requests.

I would appreciate if you would await my further advice before considering any action in relation to the 10 requests.

13                        In the event, the NLC did not write to the Commissioner during “the next week”; and  the Commissioner proceeded to determine that the information he had requested relating to the six claims had not been provided. 

The Commissioner’s determination

14                        On 2 December 2009, the Commissioner wrote to the NLC advising that he had come to the conclusion that no basis had been demonstrated to justify extending the time for complying with the six requests directed to the applicants’ claims and that, “as none of the requested information has been provided I have today made determinations to that effect.”

15                        Each of the determinations of 2 December 2009 recites:

(a)        the NLC, on behalf of Aboriginals claiming to have a traditional land claim, had made an application under s 50(1)(a) of the Act;

(b)        the Commissioner had requested the NLC to provide certain further information within six months of the making of the request; and

(c)        neither the NLC nor any other body or person representing the claimants has made any response to the request for further information;

“Now therefore the Commissioner, pursuant to the provisions of subsection 67A(7) of the Act, hereby determines that the further information requested was not provided within six months of making the request.”

The application to this Court

16                        On behalf of the applicants it is argued that the Commissioner erred in the exercise of the power conferred on him by s 67A(7) of the Actin one or more of three ways, namely:

(a)        in failing to take into account the time in which the information requested could be provided, his pre-emptory decision precluding the possibility of his being properly informed in that regard;

(b)        in failing to afford the claimants a fair hearing on the question whether he should proceed forthwith to make a determination under s 67A(7) of the Act;

(c)        in unreasonably proceeding to make a determination without obtaining, by simple request, information about NLC’s capacity to provide the requested information.

17                        On behalf of the applicants, reliance was placed on a letter dated 31 October 2006 from the Commissioner to the NLC, ie, shortly after the coming into force of s 67A(7).  In that letter, the Commissioner wrote:

… The period of 6 months specified in the new subsections [67A(7), (8) and (9)] is of course a minimum and it is my view that even after a request has been make (sic) it would be open to the Commissioner to extend that period if the merits of the case warranted that to be done.  Further, the mere failure to provide the relevant information within the specified period does not automatically finalise the claim.  Rather, once the period has expired the Commissioner is required to make a determination which in my view would necessitate giving the relevant parties an opportunity to be heard.

18                        In an affidavit filed in this Court on behalf of the applicants, Mr Graham, the manager of the NLC’s anthropology branch, estimates that if the anthropology branch were fully funded, 15 requests issued by the Commissioner in May and June 2009 (which includes the six requests in question), could be answered in two years. 

Consideration

19                        We have concluded that the applicants are entitled to the relief they seek.  Our decision rests on the particular nature of the power conferred on the Commissioner by s 67A(7) of the Act.  We will return to discuss the basis on which we consider that the applicants are entitled to relief after first dealing with the other bases advanced on their behalf. 

20                        It is no doubt true to say that, in deciding to make a determination that there has not been a response to a request for information under s 67A(7), the Commissioner should have regard to the difficulties involved for an applicant in making a meaningful response to a request for information as well as to the serious adverse consequences for an applicant of making a determination.  The automatic consequence of a determination is to shut out forever any possibility of a successful claim under the Act.   The difficulty for the applicants with this point is that there is nothing in the material before the Court to suggest that the Commissioner did not take these considerations into account.

21                        It may also be accepted that another consideration relevant to whether the Commissioner should allow an extension of time under s 33of the Acts Interpretation Actis the likelihood, having regard to the applicants’ explanation for their delay in responding, that the further extension will lead to a meaningful response within the extended time frame.   The Commissioner was entitled to take the view, acting upon the correspondence he had received, that he was not provided with a sufficient basis to fix the term of an appropriate extension of the six month period originally fixed by him.

22                        To understand why this is so, it is necessary to consider, in full, the correspondence between the NLC and the Commissioner of November 2009.  The NLC’s letter of 18 November 2009 was in these terms:

Dear Sir

INTERTIDAL ZONE/TIDAL RIVER LAND CLAIMS: SECTION 67A(7) NOTICES

I refer to your correspondence dated 24 April and 19 May 2009, and our discussion on 26 October 2009, regarding the issue of requests under s 67A(7) of the Land Rights Act in which require the provision of anthropological, tenure and related information in relation to ten outstanding land claims.

I confirm my advice on 26 October that, despite personally endorsing for receipt of the latter letter when personally provided to me on 22 May 2009, it was thereafter mislaid and not provided to responsible legal and anthropological officers.  The unfortunate consequence is that it was not then actioned.

I personally apologise for my omission in relation to this matter.

In light of the above, but also given other considerations, I seek an extension of time to respond to the notices on behalf of the respective claimants.

Each claim concerns tidal waters which overly Aboriginal land in the intertidal zone or in rivers.  The resolution of each claim thus involves consideration of the law as stated by the High Court on 30 July 2008 in the Blue Mud Bay case (Gumana v Northern Territory), namely that commercial and recreational fishing cannot occur in those waters unless access is authorised pursuant to the Land Rights Act.

The High Court relevantly upheld a judgement of a Full Court of the Federal Court on 2 March 2007.  At that time the NLC (together with the Anindilyakwa and Tiwi Land Councils) fulfilled a longstanding public commitment and, in good faith, implemented an agreed interim regime to ensure that commercial and recreational fishing could continue on the same or a similar basis as prior to the Federal Court judgment.

The purpose of the interim regime was to enable the parties, being traditional owners, the Commonwealth and NT Governments, and commercial and recreational interests, to identify and implement a settlement which applies to all tidal waters affected by the Court’s judgement in the Northern Territory.

Significant progress has been made since the High Court’s judgement, with regular meetings of the parties’ representatives, consultations with all traditional owner groups throughout the NLC’s region, and the provision of a comprehensive settlement proposal by the Territory on 16 November 2009.  The proposal focuses on delivering a range of outcomes to traditional owners and remote communities in coastal and river regions.

The next step involves consideration of the Territory’s proposal at representative or officer level, with a view to obtaining an agreed in principle position which will be considered by traditional owners during 2010.  It will be appreciated that thse consultations will take significant time to complete, bearing in mind the length of the coastline and tidal rivers in the NLC’s region.

In light of the progress made in relation to settlement, the NLC Full Council facilitated the extension of the interim licensing regime for a further 12 months to 31 December 2010 at its recent meeting at Crab Claw Island in the first week of November 2009.

The NLC is committed to maintaining momentum and completing the consultations, and has accordingly prioritised its resources in relation to the settlement process.  That process, as stated above, is intended to facilitate a resolution not only in relation to existing Aboriginal land, but also in relation to tidal Aboriginal land which has been successfully claimed but not yet granted or where the claim has not yet been heard.

It is submitted that the existence of this process, the parties’ commitment to it, and progress to date, provide a sufficient and compelling basis for an extension of time for response to the s 67A(7) notices.

The other consideration which I respectfully submit is relevant to the grant of an extension relates to the NLC’s resources generally.  In accordance with Commonwealth policy the NLC has prioritised its resources during 2009 to (inter alia) facilitate leases of Aboriginal land for urgent housing under the Strategic Indigenous Housing and Infrastructure Program.  Leases have been delivered regarding seven of the nine communities in the NLC region, with consultations regarding the remaining two communities, Numbulwar and Yirrkala, scheduled in the New Year.  These are the only leases facilitated on the Territory mainland, an outcome which has guaranteed land for the program for some years and which constitutes an ongoing and significant contribution to its ultimate success.

The effect of this and other major matters is that the NLC’s legal and anthropology branches have been working to capacity during 2009.  Further, this volume of work is likely to increase given changed government policy regarding development on Aboriginal land, to the effect that future development of any kind (including funding of third parties in relation to development) will not occur without a lease (or other interest) granted under s 19 of the Land Rights Act.  Leases are also to be negoitiated regarding all existing government infrastructure on Aboriginal land.  The Territory has indicated that this will involve in the order of 400 leases being negotiated and executed.

Notwithstanding the above I do not suggest that the NLC legal practice is unable to respond to the s 67A notices.  The increased volume of leasing work will likely require increased resources from governments, and the timely prosecution of land claims remains a major component of the NLC’s work.  It is submitted, however, that an extension of time to respond to the notices would, in the circumstances, be appropriate.

Later this week I anticipate meeting with the NLC anthropology branch manager, Robert Graham, and responsible solicitors to identify a proposed timeframe to respond to the notices should you be minded to grant an extension.  Upon doing so I shall further write to you with that proposal with a view to assisting in your consideration of this matter.

Please contact me should it be that I can assist in clarifying the above or other matters.

I look forward to further advising in relation to this matter.

…

23                        The Commissioner’s letter of 20 November 2009 was in these terms:

Dear Sir

re        Intertidal zone/tidal river land claims: s.67A(7) notices

I acknowledge receipt of your letter of 18 November 2009 contents of which are noted.

Of the 10 requests served on 22 May 2009, only 4, namely those relating to claims no. 188 (Legune Area), 189(Fitzmaurice River Region), 190(Peron Island Area) and 192(Woolner/Mary River Region), involve a claim to the ITZ or to a tidal river and I have assumed that the request for an extension of time applies to those particular claims.

I have recently written to the Minister seeking clarification of government policy concerning the granting of title under the Land Rights Act to the ITZ and tidal rivers generally.  As you are aware the 2006 amendments to the Act contemplated the making of regulations which could have the effect of finally disposing of the claims presently under consideration.  Despite earlier advice that regulations were in the course of preparation I now understand that no further progress has been made towards that end.

You will also be aware that some years ago I made a number of recommendations concerning the ITZ and tidal rivers along the coastline of the Gulf of Carpentaria, none of which have as yet been acted on.  In regard to these latter matters, apart from the regulation process, it would be open to the Minister to make a determination under s.67A(5)(d) to not recommend that a grant of title be made.

Until I have an indication of the government’s attitude to the granting of title to further areas of the ITZ and tidal rivers I am unable to make a sensible response to your request for an extension of time.  In the meantime I will not take any action on the s.67A(7) requests relating to claims no. 188, 189, 190 and 192 without first raising the matter with you and giving the NLC a reasonable opportunity to consider its position.

…

24                        The NLC’s letter of 20 November 2009 was in these terms:

Dear Sir

INTERTIDAL ZONE/TIDAL RIVER LAND CLAIMS: SECTION 67A(7) NOTICES

Thankyou for your letter of today’s date, in response to my letter dated 18 November 2009 seeking an extension of time.

Your letter noted that four of the 10 requests under s 67A(7) of the Land Rights Act relate to tidal waters, and advised that you “have assumed that the request for an extension of time applies to those particular claims” only.

My letter, although inaccurately expressed (for which I apologise), was intended to convey that an extension of time was also sought regarding the six requests which do not concern tidal waters, and to foreshadow that further information would shortly be provided in light of anthropological advice.

To that end I met yesterday with the NLC’s anthropology branch manager, Robert Graham, and responsible solicitors to identify a proposed timeframe to respond to all notices should you be minded to grant an extension. 

In light of your advice I propose to meet further with Mr Graham, and write to you early next week to further substantiate the requests for an extension of time in relation to all 10 requests.

I would appreciate if you would await my further advice before considering any action in relation to the 10 requests.

…

25                        As has been noted, the letter foreshadowed for “early next week” did not materialise.

26                        In the light of this correspondence, the conclusion of the Commissioner that “no basis has been demonstrated to justify extending the time for complying with (his) requests in relation to” the non-tidal claims was a conclusion which was reasonably open to him.  At the best for the applicants, the NLC’s letter of 20 November 2009 foreshadowed an intention to seek to “substantiate the requests for an extension of time in relation to all ten requests.”  By 2 December 2009, the NLC had been afforded ample opportunity to state the basis on which it sought an extension of time in which to respond to the Commissioner’s request. 

27                        The NLC had taken no action at all in relation to the six requests relating specifically to the non-tidal land claims in question, and more importantly, did not give any indication of the time-frame within which those requests would be answered.  The NLC had ample opportunity to give that information to the Commissioner.  And it had no reason to suppose that it was unnecessary for it to put its best foot forward to justify an extended period beyond the six months already afforded to it.  The Commissioner was left in a position where he was given no indication at all of the actual time frame within which he could expect his requests might be favoured with a response.

28                        As to Mr Graham’s evidence, a number of points can be made.  First, it does not address the time needed to reply only to the specific requests relating to the six claims of the applicants, these being the only claims in relation to which the Commissioner had not already indicated a willingness to take no further action without further notice to the NLC.  In any event, the information in this affidavit was not, in fact, placed before the Commissioner prior to his decision of 2 December 2009.  No good reason why the information in Mr Graham’s affidavit could not have been put before the Commissioner before 2 December 2009 appears in the material relied upon by the applicants.  The applicants were, in fact, afforded the opportunity to put further material before the Commissioner in the week following 20 November 2009.

29                        So far as the Commissioner’s letter of 24 April 2009 is concerned, it is not suggested that the Commissioner’s intimation of his general approach to the giving of time for a response to a request for information constituted an unlawful fetter upon the proper exercise of his discretion.  Nor is there any suggestion that this intimation caused the NLC to believe that in writing its letters of November and December 2009 the occasion had not yet arisen for the NLC to attempt to satisfy the Commissioner that “a genuine effort (was) being made to provide the requested information” if it was to be given an extended time to comply with the Commissioner’s request.

30                        So far as the Commissioner’s letter of 31 October 2006 is concerned, three points may be made.  First, the Commissioner’s indication of his then intention to allow an applicant an “opportunity to be heard” once the period specified in a request for information “had expired” before making a determination that the further information has not been provided for the purposes of s 67A(7) of the Act does not have any statutory force.  The real question is not whether an expectation as to process was observed but whether procedural fairness was denied: Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 at [24], [33]-[37], [103]-[106], [111]-[114], [149]-[150].  To that question, we will return.

31                        Secondly, whatever effect the Commissioner’s intimation of 31 October 2006 may have had upon the due process required by s 67A(7), that intimation was arguably superseded by the Commissioner’s letter of 24 April 2009.  And however that may be, there is no suggestion that the efforts made on behalf of the applicants to explain their delay or to provide their best indication of the likely time frame within which they expected to be able to comply with the Commissioner’s request were in any way affected by their reliance on the Commissioner’s letter of 31 October 2006.  In this respect, the present case is distinguishable from the decision of the High Court in ApplicantNAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2004) 221 CLR 1.

32                        NAFF was a case in which the Refugee Review Tribunal charged with the review of a decision refusing an application for a protection visa under the Migration Act 1958 (Cth) informed the applicant, after hearing his evidence, that it would write to him concerning perceived “inconsistencies” in his evidence and set a time for him to respond to the Tribunal’s questions and to put any further information before the Tribunal that he wished.  The Tribunal proceeded to make its decision without writing further to the applicant.  In the Tribunal’s decision, it did not refer expressly to the inconsistencies in the applicant’s evidence but the Tribunal did make adverse findings concerning the applicant’s credibility.  The High Court held that the applicant had been denied procedural fairness and that this denial constituted jurisdictional error on the part of the Tribunal.  That case was different from the present as can be seen in the following passage from the reasons of McHugh, Gummow, Callinan and Heydon JJ (2004) 221 CLR 1 at [34]:

The entitlement of the appellant to complain about the failure of the Tribunal to complete the review process does not depend on the tender of evidence that he was misled or prejudiced. It is true that in some cases it may be necessary for disappointed applicants for review to file evidence about what steps they would have taken if the alleged breach of procedural fairness had not occurred. But the failure of the present appellant to file evidence about what he would have done had the Tribunal member's promise been fulfilled is not fatal to the appeal for at least one reason specific to the present case. While the appellant knew that the foreshadowed questions would relate to inconsistencies in what he had said about the detentions, it would not have been possible for him to file an affidavit stating what answers he would have given to particular questions without knowing what the questions would have been. He could not anticipate what material he would be asked to supply, nor could he anticipate how any particular material to be requested would relate to the potential lines of reasoning of the Tribunal member, and hence he could not anticipate what he might usefully say on the subject generally.

33                        Having cleared the path of the arguments on behalf of the applicants which are without substance, we can now return to the basis on which we consider that the applicants are entitled to succeed.

34                        It was common ground between the parties that the power of determination conferred on the Commissioner by s 67A(7) is one which the Commissioner was not obliged to exercise upon the expiration of the specified period.  The expiration of that period is a necessary condition of the power to determine that the requested information has not been provided, but whether or not the Commissioner should so determine is, it was accepted by both sides, a matter for the exercise of his discretion at that time. 

35                        That discretion should not be confused with the general power conferred by s 33 of the Acts Interpretation Actto fix a later date for compliance with the original requests.   It was open to the Commissioner to decline a request for an extension for a further specified period and at the same time to decline to “determine that the further information is not provided” within the originally specified period.  The Commissioner could, for example, have refused an extension of time for a specified period while declining to make a determination, the effect of which would be to finally dispose of the applicants’ claims forthwith.  The correspondence between the NLC and the Commissioner did not focus clearly on the question whether the Commissioner should forthwith make the determination the automatic consequence of which would be to terminate finally the applicants’ claims under the Act; indeed it was, in terms, directed to the fixing of an extended time for compliance.

36                        Once attention is focussed on the question posed by s 67A(7), rather than that posedby the question whether the compliance period specified in the notices of request should be extendedunder s 33 of the Acts Interpretation Act or by the effective operation of s 67A(7) it may readily be accepted that the discretion to make the determination authorised under s 67A(7) could not be exercised adversely to the applicants or indeed to the interests of any other personswithout their having been afforded an opportunity to argue against the exercise of the power to determine that there had not been a response to his requests.  This constraint on the exercise of the power applies by reason of the principles explained by Mason J (as his Honour then was) in Kioa v West (1985) 159 CLR 550 at 584:

The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. It seems that as early as 1911 Lord Loreburn LC understood that this was the law when he spoke of the obligation to “fairly listen to both sides” being “a duty lying upon every one who decides anything”: Board of Education v Rice ([1911] AC 179 at p 182).

37                        There is nothing in the Act to suggest that the Parliament intended to preclude the provision of procedural fairness on the exercise of this discretion and such a proposition was not put forward by the Territory in this case.

38                        Once attention is focussed on the real question which arises under s 67A(7) of the Act, it cannot be said that it was nevertheless a forgone conclusion that the power conferred by s 67A(7) would have been exercised in the same way had the applicants been invited to address that issue.  It would have been relevant to the Commissioner’s exercise of the discretion to know whether the Northern Territory, as the other party to the claims, was disposed to contend that it would be prejudiced by a decision not to make a determination forthwith or whether it was prepared to accept that some further, perhaps very short, delay would be acceptable to it.  The Commissioner could have ascertained whether the applicants were willing and able to subject themselves to a more rigorous pursuit of a response to the requests than they were while the only subject of discussion was whether or not a fixed extension of time would be granted.  Doctor Johnson said that the thought of being hanged in the morning tends to concentrate a man’s mind.  The prospect of the immediate final disposal of the applicants’ claims may have focussed the applicants’ minds and the efforts of their representatives in a way which would have been sufficient to persuade the Commissioner to decline to proceed to make a determination under s 67A(7), at least while the applicants continued to provide evidence of actual endeavours directed to compliance with the requests. 

39                        For these reasons we have concluded that the Commissioner’s determinations were vitiated by a failure to accord the applicants procedural fairness in deciding to make his determinations under s 67A(7) of the Act.

40                        As to the costs of the proceedings in this Court, we consider that there is no sufficient reason why the costs should not follow the event.  Even though the Second Respondent did not actively contribute to the state of affairs that led the applicants to seek relief in this Court, the Second Respondent took an active role in seeking to maintain the decision of the Commissioner which we have decided must be set aside. 

Orders

41                        The Court declares that the determinations of the Aboriginal Land Commissioner made on 2 December 2009 under s 67A(7) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) with respect to the applications referred to in Schedule A are invalid and of no effect.  An order in the nature of certiorari issue to quash the determinations of the Aboriginal Land Commissioner made on 2 December 2009 under s 67A(7) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) with respect to the applications referred to in Schedule A.  The second respondent is to pay the applicants’ costs of the proceedings in this Court.

Associate:

Dated:         8 June 2010

SCHEDULE A