FEDERAL COURT OF AUSTRALIA

Rirratjingu Aboriginal Corporation v Northern Land Council [2017] FCAFC 48

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the costs of the first respondent and of the second and fourth respondents, as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the eighteenth respondent and of the nineteenth and twenty-first respondents, as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    Before the Court are two appeals which have been consolidated. Each appeal is from orders made by the primary judge on 24 August 2016.

2    In NTD 48/2016 the appellants appeal from orders 1, 2, 3 and 4 made on 24 August 2016 by the primary judge. The substantive reasons for those orders are largely to be found in Rirratjingu Aboriginal Corporation v Northern Land Council [2015] FCA 36; 324 ALR 240 (the first judgment). On 24 August 2016, in Rirratjingu Aboriginal Corporation v Northern Land Council [2016] FCA 1017, the primary judge made the orders under appeal and gave further reasons.

3    The first appellant is the Rirratjingu Aboriginal Corporation (RAC). Its associated parties are the senior members of the Rirratjingu clan, named as the second to seventeenth appellants. The first respondent is the Northern Land Council (NLC). The second and fourth respondents in NTD 48/2016 are Gumatj Corporation Limited and Galarrwuy Yunupingu (together the Gumatj). The third respondent, Djalu Gurruwiwi, the “Galpu appellant”, was aligned with the appellants in NTD 48/2016. The fifth respondent was Bunumbirr Marika, who did not participate in the appeal.

4    In NTD 49/2016, the appellant is Djalu Gurruwiwi, the “Galpu appellant”, being the third respondent in NTD 48/2016. The appellant appeals from “all of the orders of the Federal Court relating to the Amended Cross-Claim (Cross-Claim) of the third respondent given on 24 August 2016 at Darwin.” The first respondent in NTD 49/2016 is the RAC (the first appellant in NTD 48/2016). The senior members of the Rirratjingu clan are the second to seventeenth respondents. The NLC is the eighteenth respondent in NTD 49/2016. The nineteenth respondent is the Gumatj Corporation Limited. The twenty-first respondent is Galarrwuy Yunupingu. The twentieth respondent is Bunumbirr Marika, the fifth respondent in NTD 48/2016, who did not participate in the appeal.

5    To the extent that leave to appeal is necessary given that the primary judgment involved answers to separate questions and a consequential summary dismissal, to avoid doubt, by consent we granted leave to appeal in each of the two appeals.

6    Central to the appeal is s 35(4) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALRA), which provides:

Where a Land Council receives a payment in respect of Aboriginal land … the Land Council shall, within 6 months after that payment is received, pay an amount equal to that payment to or for the benefit of the traditional Aboriginal owners of the land.

Factual background

7    It was and is common ground that the NLC had received payment in respect of Aboriginal land and it appears to be common ground that members of the Yolngu clans known as the Rirratjingu, Gumatj, and Galpu are the traditional Aboriginal owners of the land: see the first judgment at [1] and [20].

8    As explained by the primary judge, at [5], the Gove Agreement is an agreement entered into on 26 May 2011 between Swiss Aluminium Australia Limited and Gove Aluminium Limited (RTA), the Arnhem Land Aboriginal Land Trust (the Land Trust), the NLC, and representatives of the Rirratjingu, Gumatj, and Galpu, who together are considered by the NLC to be the traditional Aboriginal owners of the land.

9    The NLC is a Land Council established under the ALRA and is the relevant Land Council for the Gove Peninsula in North East Arnhem Land.

10    The proceedings involved, inter alia, allegations that the NLC acted unlawfully, contrary to its obligations under the ALRA and the Gove Agreement, in the way it had disbursed the mining royalties or quarterly payments payable to the NLC by RTA pursuant to the Gove Agreement in respect of the areas of the Gove Leases (Special Mineral Lease 11 and Special Purposes Leases 213, 214, 217, 249, 250, 251, 253 and 277) and the expired SPL 403, and now the Residual Disposal Area Lease (RDA Lease), to members of the Yolngu clans (the Payments) and proposed to do so in the future.

The appeal

11    Subject to what we say at [17] and following of these reasons, the appellants in NTD 48/2016 pressed the following grounds of appeal:

Jurisdiction of the Federal Court to determine by declaration traditional Aboriginal ownership of land the subject of the ALRA

1.    The learned Judge erred in refusing to determine and, for that reason, dismissing the appellants’ claim in paragraph 1.3 of Part A of the Amended Originating Application to a declaration as to the land of which the Rirratjingu are the traditional Aboriginal owners under and for the purposes of the ALRA including s.35(4) of ALRA.

2.    The learned Judge erred in concluding that, on a true construction of the ALRA, the traditional Aboriginal owners of the subject Aboriginal land for the purposes of s.35(4) of ALRA are those determined to be so by the relevant Land Council in the course of performing its functions, not those who are in fact the relevant traditional Aboriginal owners of the subject Aboriginal land.

3.    The learned Judge ought to have concluded that disputes as to the identity of the local descent group who are the traditional Aboriginal owners of any particular portion of land under and for the purposes of the ALRA, including for the purposes of s.35(4) of ALRA, are matters arising under the ALRA which may be determined by the Federal Court.

The nature of the rights of traditional Aboriginal owners in relation to payments received by a Land Council under s.35(4) of the ALRA

4.    The learned Judge erred in refusing the appellants’ claim in paragraph 1.4 in Part A of the Amended Originating Application:

a.    to a declaration as to the respective entitlements of the Rirratjingu, the Gumatj and the Galpu to monies paid by RTA pursuant to cl.6 of the Gove Agreement to or for the benefit of the Rirratjingu, the Gumatj and the Galpu and received by the NLC and to which s.35(4) of ALRA applied including the July Payment; and

b.    to the declarations and to the orders set out in paragraphs 1.5 to 1.8 and 2 to 4 of Part A of the Amended Originating Application to give effect to these entitlements in relation to the Rirratjingu.

5.    The learned Judge erred in concluding that, on their true construction, ss.35(4) and 35(8) of ALRA do not impose on funds which had been paid to the NLC by RTA pursuant to cl.6 of the Gove Agreement at and from the time of their receipt by the NLC, a statutory trust which created:

a.    rights in the nature of a fixed trust in favour of the Rirratjingu as one of the relevant groups of traditional Aboriginal owners; or

b.    statutory obligations on the NLC with trust-like elements which are enforceable in equity by the appellants on behalf of the Rirratjingu.

6.    The learned judge ought to have concluded that, upon their receipt under s.35(4) of ALRA by the NLC, the appellants had a beneficial interest or other enforceable legal entitlement in the funds which had been paid to the NLC by RTA pursuant to cl.6 of the Gove Agreement to or for the benefit of the Rirratjingu to the extent as determined by law.

The appellants abandoned ground 7.

12    The notice of appeal sought orders setting aside orders 1, 2, 3 and 4 of the orders of the primary judge of 24 August 2016. Omitting orders in relation to costs, those orders were:

1.    The orders sought in paragraphs 1 to 5 and for interlocutory relief in Part A are refused.

2.    The orders sought in paragraphs A, B, C and 6 of Part B are refused.

3.    …

4.    …

Paragraphs 1 to 5 in Part A were as follows:

A.    Claims to enforce rights under the Gove Agreement and under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)

Details of claim

On the grounds set out in the accompanying affidavits, the Applicants, who represent the Rirraljingu Clan of East Arnhem land (“Rirratjingu”), apply to the Court for declaratory and other relief in respect of their entitlements under an agreement made on 26 May 2011 (“the Gove Agreement”) between Swiss Aluminium Australia Pty Ltd, Gove Aluminium Ltd, the First Respondent, the Arnhem Land Aboriginal Land Trust, Galarrwuy Yunupingu for and on behalf of the Gumatj Clan (“Gumatj”), Bakamumu Marika for and on behalf of the Rirrajingu and the Third Respondent for and on behalf of the Galpu Clan. The Gove Agreement concerns, amongst other matters, the grant of rights in relation to Schedule 1 land under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (“ALRA”) in relation to which the Rirratjingu are the traditional Aboriginal owners. The Applicants claim against the Respondents:·

1.    declarations that:

1.1.    the First Applicant on behalf of the Rirratjingu is entitled as against the Second Respondent or any other entity or entities on behalf of the Gumatj to 49.755% (being 50% of the payments remaining after account is taken of the 0.49% undisputed entitlement of the Third Respondent) of the payments payable under the Gove Agreement to traditional Aboriginal owners as defined therein (“the TAO Payments”);

1.2.    the First Respondent holds 49.755% of the TAO Payments it receives from time to time on trust for the Rirratjingu;

1.3.    the Rirratjingu are the traditional Aboriginal owners of the Undisputed Rirratjingu Land and the Disputed Rirratjingu Land;

1.4.    the respective entitlements of the Rirratjingu, the Gumatj and the Galpu to the quarterly payments payable under s.35(4) of the ALRA including the 2014 Quarter 2 payment, should be calculated as set out in paragraphs 50 to 71 and annexure SFM8 of the affidavit of Stuart Fairburn Maclean dated 25 August 2014, or on such other basis as the Court shall determine;

1.5.    49.755%, or such lesser percentage as the court determines, of the 2014 Quarter 2 payment should be paid to or for the benefit of the Rirratjingu;

1.6.    49.755% or such lesser percentage as the court determines, of the 2014 Quarter 2 payment is held on trust for the Rirratjingu or alternatively for the RAC;

1.7.    49.755%, or such lesser percentage as the court determines. of all future the (sic) quarterly payments should be paid to or for the benefit of the Rirratjingu;

1.8.    any amounts of past Quarterly Payments which have been retained by the NLC including as referred to in paragraph (sic) of the Statement of Claim and any interest thereon are held on trust for the Rirratjingu or alternatively for the RAC;

2.    a permanent injunction:

2.1    to compel the First Respondent to pay 49.755% of the TAO payments to the First Applicant; or alternatively

2.2     to restrain the First Respondent from paying more than 49.755% of the TAO payments to the Second Respondent or any other entity or entities on behalf of the Gumatj;

3.    an account of the TAO Payments received by the First Respondent past Quarterly Payments which are the subject of the decisions of the NLC referred to in paragraphs 35.1 and 35.2 of the Statement of Claim;

3A.    orders for the payment of the Rirratjingu’s share of the TAO payments to the First Applicant the sums referred to in paragraphs 1.5, 1.6 and 1.8 above;

4.    interest, including interest in equity;

5.    costs;

13    There was also an application for interlocutory relief to restrain the first respondent from paying more than 50.245% of the payments payable under the Gove Agreement to traditional Aboriginal owners as defined therein to any entities or persons other than the first applicant. This was overtaken by events.

14    Paragraphs A, B, C and 6 of Part B concerned the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), which claims were not pursued on appeal.

15    The notice of appeal in NTD 49/2016 was relevantly as follows:

Grounds of appeal

1.    The learned judge erred in concluding that the proper statutory construction of sub-section 35(4) and sub-section 35(8) of the Aboriginal Land Rights (Northern Territory) Act 1976 does not give rise to a fixed trust (at [80] [82] [83] [89][90]).

2.    The learned judge erred in concluding that the proper interpretation of clause 6(1)(a) of the Gove Agreement does not give rise to a fixed trust (at [82] [83] [88][90]).

3.    The learned judge erred in concluding that the trust in question is not a trust in the ordinary sense, but in the non-technical sense for statutory purposes and accordingly, its operations are principally governed by the relevant legislative provisions (at [88] [89] [90]).

4.    The learned judge erred in concluding that the (sic) Wurridjal v Commonwealth (2009) 237 CLR 309 at [128] and [171] and section 5, section 12 and section 19 of the Aboriginal Land Rights (Northern Territory) Act 1976 provide support for his conclusions referred to in Ground 1 and Ground 2 (at [89]).

5.    The learned judge erred in concluding that the entitlement of the collective beneficiaries is not fixed (at [77] [92] [101]).

6.    The learned judge erred in concluding that the legal and equitable interests of the collective beneficiaries of the payments that engage sub-section 35(4) and sub-section 35(8) of the Aboriginal Land Rights (Northern Territory) Act 1976 are restricted to an entitlement only to:

a.    ensuring that the payments are disbursed within six months of receipt, and

b.    ensuring that they are allocated to persons or bodies ‘to or for the benefit’ of the traditional Aboriginal owners, (at [80][95][101] [106]).

7.    The learned judge erred in concluding that upon a proper statutory construction of the Aboriginal Land Rights (Northern Territory) Act (the Act) that the Northern Land Council alone is intended to be the decision maker under sub-section 35(4) of the Aboriginal Land Rights (Northern Territory) Act 1976 (at [109] [110]).

8.    The learned judge erred in concluding that sub-section 35(4) of the Aboriginal Land Rights (Northern Territory) Act 1976 vests exclusively in the Northern Land Council power to relevantly determine who are the traditional Aboriginal owners of land (at [116] [129]).

9.    The learned judge erred in concluding that the payment required pursuant to clause 5.2 of the Gove Agreement is not a payment:

a.    in respect of Aboriginal land; nor

b.    that engages sub-section 35(4) of the Aboriginal Land Rights (Northern Territory) Act 1976 (at [145]).

10.    The learned judge erred in concluding that the Court has no role in determining;

a.    the identity of the traditional Aboriginal owners of the land; nor

b.    as to the allocation of income between the traditional Aboriginal owners under the Act (at [102] [108]).

11.    The learned judge erred in concluding that the Act does not confer or authorize the conferral of proprietary rights upon any person or persons beneficially (at [95] [99]).

12.    The learned judge erred in concluding that Risk v Northern Territory (2002) 210 CLR 392 at [75] provides support for his conclusions referred to in Ground 12 (sic) (at [95] [99]).

13.    The learned judge erred in concluding that there is no dispute that the Rirratjingu, Gumatj and Galpu comprise the traditional Aboriginal owners of the land (at [91]).

14.    The learned judge erred in concluding that the Act properly construed authorizes the Northern Land Council alone to make decisions concerning distributions of payments in respect of Aboriginal land pursuant to s 34(4) (sic) of the Act:

a.    without the consultation and consent obligations of the Northern Land Council under sub-section 19(5), sub-section 23(3) and section 77A of the Aboriginal Land Rights (Northern Territory) Act 1976 having already been discharged; and

b.    contrary to the nature and content of any relevant consent already given by the traditional Aboriginal owners under sub-section 19(5), sub-section 23(3) and section 77A of the Aboriginal Land Rights (Northern Territory) Act 1976 (at [80] [82] [90] [95] [106] [107] [108] [110]).

15.    The learned judge erred in concluding that his conclusions concerning s34(4) (sic) of the Act necessarily constrain the construction of clause 6(1)(a) of the Gove Agreement (at [114]).

16.    Leave to appeal is sought to the extent necessary.

Orders sought

1.    A declaration that all monies received by the Northern Land Council in respect of the Gove Agreement, including the Upfront Payments are held by the Northern Land Council on trust for the benefit of the traditional Aboriginal owners of the land from the time of receipt of the monies by the Northern Land Council.

2.    A declaration that the Northern Land Council cannot make decisions concerning distributions of payments in respect of Aboriginal land pursuant to sub-section 34(4) (sic) of the Act:

a.    without the consultation and consent obligations of the Northern Land Council under sub-section 19(5), sub-section 23(3) and section 77A of the Aboriginal Land Rights (Northern Territory) Act 1976 having already been discharged; nor

b.    contrary to the nature and content of any relevant consent already given by the traditional Aboriginal owners under sub-section 19(5), sub-section 23(3) and section 77A of the Aboriginal Land Rights (Northern Territory) Act 1976 (at [80] [82] [90 [95] [106] [107] [108] [110]).

3.    An order that the matter be remitted to a single judge of the Federal Court to determine:

a.    the identity of the traditional Aboriginal owners of the relevant land,

b.    the amount of trust monies received by the Northern Land Council under the Gove Agreement for distribution to date, and

c.    the equitable distribution of the trust monies to or for the benefit of the relevant traditional Aboriginal owners.

16    Grounds 1 and 2 were expressly abandoned in the course of the hearing of the appeal. It follows that some of the other grounds are moot, as dependent on grounds 1 and 2.

17    Much of the detail of the matters considered and decided by the primary judge, the trust case, fell away in the course of oral submissions on the hearing of the appeal.

18    Senior Counsel for the RAC and the other appellants in NTD 48/2016 submitted that the appeal concerned the meaning of s 35(4) of the ALRA and said that the point was ultimately one that was narrowly confined. He identified two legal issues of construction: does the Land Council have the power to determine authoritatively who are traditional Aboriginal owners of Aboriginal land, and secondly, under s 35(4), does the Land Council have the power to determine the proportions in which moneys are to be paid to traditional Aboriginal owners.

19    Senior Counsel submitted that the terms of the Gove Agreement did not assist in the resolution of the dispute because the terms could not affect the construction of the ALRA.

20    Senior Counsel submitted the question arose: could the NLC itself determine the appropriate payees, payment to whom will discharge its obligation. The NLC had no right whatever to identify the payees or to determine the proportions. There was no legal right in the NLC to do it although, as a practical matter, it does. As a legal right, the NLC will not discharge its obligation unless it had actually paid the owners or, at their direction, for the benefit of the owners. The appellants’ position was that the NLC did not decide anything: it had to pay the actual owners, and until it had done that it had not discharged its obligation. Senior Counsel submitted that unlike the other provisions in s 35 which conferred an express discretion as trustee upon the NLC to determine which corporations and in what proportions moneys were to be paid, s 35(4) created an absolute obligation on the NLC actually to pay the true owners, and if the NLC made a mistake, the money might be recoverable or not recoverable, but the NLC still had the obligation to pay. The true traditional Aboriginal owners alone could provide a discharge to the NLC for satisfaction of the obligation of payment. This, said Senior Counsel, reflected s 23(3) of the ALRA under which the NLC, in carrying out its functions with respect to Aboriginal land in its area, was not permitted to “take any action” unless satisfied that, relevantly, the traditional Aboriginal owners of the land understood the nature and the purpose of the proposed action and, as a group, consented to it. It is not apparent that these latter two arguments were put to the primary judge but, as they were put as an aid to construction of s 35(4) only, we do not consider that the appellants should be precluded from raising them in their appeal.

21    Senior Counsel for the appellants said in oral submissions that the trust case was a stepping stone or the foundation of the conclusion that was sought, namely that the NLC did not have any relevant power. He submitted that the Court did not need to concern itself with the trust case.

22    As we have said, counsel for the Galpu appellant abandoned grounds 1 and 2 of the notice of appeal which had raised the question whether the primary judge erred in rejecting the fixed trust case. He did however maintain his submission that the statutory trust created by s 35(8) commenced operation at the point that the monies were received and not at some later point.

23    The question then arose as to what the primary judge had decided, apart from rejecting the trust case of the present appellants (in both appeals). This was because, although it did not form part of the appeal since the grounds involving the ADJR Act were not pressed, the present appellants had commenced in this Court separate proceedings for review by the Court of the payment made by the NLC subsequent to the first judgment and in reliance on it, as contemplated by the primary judge. For example, although it is clear that the present appellants could not run their trust case again, it was not clear what, if any, other issues had been determined against them and, therefore, were to be determined on the appeals. Further, Senior Counsel for the NLC accepted that those who may be affected by the NLC’s actions had standing to secure the performance of the statutory obligations: he referred to Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; 194 CLR 247.

What did the primary judge decide?

24    In the first judgment, the primary judge noted, at [33], that it was accepted by the RAC and the other parties that the complex factual issue as to the proper proportions in which the NLC should apply the Payments from RTA, even if it were the Court’s responsibility to address it, could not properly be prepared for a hearing, and then heard and determined by 31 January 2015, that being the last date by which s 35(4) required the NLC to pay the July Payment, being the payment received by it on 31 July 2014.

25    For that reason, as recorded by the primary judge at [42], the primary judge made orders to hear, before other issues in the proceeding, issues arising from the then applicants’ judicial review claim and trust claim, and the third respondent’s (Djalu Gurruwiwi’s) cross-claim, to the extent to which they did not require consideration and determination by the Court of the appropriate proportions in which the Payments received by the NLC should be distributed. As recorded by the primary judge at [38], the cross-claim attacked the validity of the decisions as to apportionment made by the NLC in relation to the Galpu’s 0.49% share and claimed declaratory and consequential orders. The cross-claim included an asserted entitlement to a greater share of the quarterly payments, and to a one-third share of what was referred to as the “Upfront Payments” made to the Rirratjingu and Gumatj on or about 10 June 2011.

26    The primary judge noted, at [47], that the then applicants sought, and were granted, leave to assert that the nature of the trust referred to was either a fixed trust for, or a “statutory entitlement of”, the Rirratjingu, Gumatj, and Galpu, “enforceable by a court of equity” where the beneficial interest in “or share of” the Payments was held by the NLC for each clan in proportions which “are determined according to law”.

27    As stated by the primary judge at [49]-[50], two issues were addressed and the identification of those two issues was ultimately agreed by all parties: (1) whether the “trust claim” of the then applicants succeeded; and (2) whether the ADJR Act claim of the then applicants, and of the Galpu, could arguably succeed or should be summarily dismissed. It seemed to have been contemplated, at [50], that if the “trust claim” issue were answered adversely to the then applicants, “the NLC had the role of determining the appropriate proportions in which the Payments were to be applied”. The primary judge also reasoned, at [67], that if the argument of the then applicants was correct, the determination of the shares of the Rirratjingu, the Gumatj and the Galpu was not within the role or powers of the NLC. This was in light of the then applicants’ contention that under the fixed trust for which they then contended, there was no role for the NLC to form any judgment about the appropriate proportions of each group: the respective entitlements simply existed as a matter of complex fact.

28    At the time of the hearing which led to the first judgment, the focus was upon the proposed decision concerning the allocation of the July 2014 payment received from RTA on 31 July 2014.

29    In our opinion the primary judge decided the following matters against the appellants. At [80], the primary judge decided there was no trust of the character proposed by the then applicants. At [83], the primary judge decided the proper construction of ss 35(4) and (8) did not give rise to a fixed trust: nor did the terms and provisions in the Gove Agreement. At [110], the primary judge did not accept the then applicants’ primary (or alternative) contention that the Gove Agreement, along with ss 35(4) and (8), created a species of statutory trust enforceable in equity.

30    Importantly, the primary judge decided that this was not a case where the Court should intervene before the NLC had acted pursuant to s 35(4) to pay an amount equal to that payment it had received in respect of Aboriginal land to or for the benefit of the traditional Aboriginal owners of the land. The primary judge did not accept, at [102], that any disputes as to allocation of income between the traditional Aboriginal owners under the ALRA were to be determined by the Court as the primary decision-maker. Thus, at [102], the primary judge rejected the then applicants’ contention that s 35(4) of the ALRA did not “confer power to the NLC to determine who the traditional Aboriginal owners are, and as there are three groups, what their respective entitlements should be.” At [108], the primary judge concluded that it was intended by s 35(4) that the NLC should in the first instance make the decision about the application of the Payments, including in this instance the proportions applicable to each of the three groups as well as the individual or group or corporate recipients, and where appropriate the purposes for which the payment is to be received and applied. The primary judge continued, at [109], that the decisions of the NLC must of course be lawful and he did not therefore foreclose the possibility of judicial review or oversight of the decisions in appropriate circumstances. It was clear, the primary judge said, that the NLC was intended to be the decision-maker under s 35(4). The primary judge said, at [110]:

For those reasons, I do not accept the trust case put forward by the applicants. The “trust” which s 35(8) establishes is a statutory trust, simply recognising that the relevant Land Council has no beneficial interest in moneys received under s 35(4), and must deal with funds received under s 35(4) in accordance with its terms. Where, as here, there are three separate groups of people who are the traditional Aboriginal owners of the land, the NLC has the responsibility to decide, in accordance with its statutory obligations, how to apportion the Payments, including the July Payment, as part of its function of deciding under s 35(4) what amount or amounts are payable “to or for the benefit of the traditional Aboriginal owners” of that land.

31    The balance of the first judgment considered the ADJR Act claim. It is sufficient to note that it was not summarily dismissed.

32    The primary judge found that it was not the role of the Court to determine as a primary decision-maker the allocation of the quarterly payments: it was the role of the NLC under the ALRA to determine who were the traditional owners of the land on and from which the mining activities of RTA were carried out and to decide upon the proper apportionment or allocation of those payments it had received and the person or persons to receive those payments, particularly under s 35. The primary judge also decided that the decisions of the NLC must be lawful and he did not therefore foreclose the possibility of judicial review or oversight of the decisions in appropriate circumstances.

33    We do not accept the submission on behalf of the appellants that the primary judge at [107]-[108] decided that it was one of the functions of the NLC to make a binding, in the sense of unreviewable, determination of who were the relevant traditional Aboriginal owners. Neither do we accept the submission that the primary judge there decided that it was one of the functions of the NLC to make a binding, in the sense of unreviewable, determination about the proportions payable to each group. In our opinion, the primary judge was stating his conclusion that the trust case as then advanced by the present appellants failed and it was for the NLC in the first instance to make the decision about the payments under s 35(4) of the ALRA to be made to or for the benefit of the traditional Aboriginal owners, including the proportions applicable to each of the three groups.

34    In our opinion, despite the language used by the primary judge in the first sentence of [107], the primary judge did not decide whether, for the purposes of s 35(4), the identification of the traditional Aboriginal owners was or was not a jurisdictional fact. Neither did the primary judge decide, for those purposes, that the question of the proportions payable was or was not a jurisdictional fact. What the primary judge did decide was that the Court did not have the primary role in those respects and the NLC did have that role.

35    Neither do we accept that the primary judge, at [109], in stating that the NLC is intended to be the decision-maker under s 35(4), foreclosed a contention that there was no discretion in the NLC to determine the proportion from time to time to be paid to each of the traditional Aboriginal owners.

36    We accept that the primary judge rejected the submission that the NLC had no role at all in paying, or deciding to pay, to the traditional Aboriginal owners of the land, and in proportions, the amount it received. Although the primary judge rejected the contention that the Court had the primary role in deciding the issue of apportionment, we do not see this as preventing a contention in judicial review proceedings that what the NLC did by way of apportionment is reviewable. We accept the submission put on behalf of the NLC that the primary judge did not decide that the NLC determines matters authoritatively. We do not accept that his Honour decided anything about whether the payment to traditional Aboriginal owners, either at all or in proportions, involved jurisdictional facts.

Disposition of appeal

37    As to the matters decided by the primary judge, for the reasons which follow we would dismiss the appeal as the NLC was under a statutory obligation to pay the money and that necessarily involved forming a view on who were the traditional Aboriginal owners and the proportions in which the money was to be paid. The NLC therefore had a role, the primary role in the circumstances of this case, albeit what it did is reviewable by the Court. We see no error in the conclusion of the primary judge that there was no fixed trust or statutory trust under which there was no role for the NLC to form any judgment about the appropriate proportions of each group.

The proceedings and judgment at first instance

38    Before the primary judge, the present appellants made the trust claim which (apart from its precise quantification), did not turn on any contested evidence. It was an argument based upon a matter of statutory construction, and in the context of material which was not disputed. The evidence referred to by the parties for the determination of this issue included the Gove Agreement and the title documents for the subject land, which set out the undisputed factual background. The primary judge said that if the trust claim in principle were to be made out, the determination of the shares of the Rirratjingu, the Gumatj and the Galpu would be a complex one.

39    If the argument of the present appellants was correct, the primary judge said at [67], that question was not within the role or powers of the NLC.

40    At [68], the primary judge said that the present appellants asserted that where the NLC had received one of the quarterly payments of the Payments but had yet to disburse those funds to or for the benefit of the Rirratjingu, Gumatj, and Galpu, the Payments were held on trust for those people. They contended that the Payments were held in a fixed and simple trust where the beneficial interest was held by each clan in proportions which reflected the particular interests in land over which, by the Gove Agreement, the traditional Aboriginal owners of that land had granted the Gove Leases and the RDA Lease. There was under that fixed trust no role for the NLC to form any judgment about the appropriate proportions of each group. The respective entitlements simply existed as a matter of complex fact.

41    On such an analysis, the primary judge said at [69], the present appellants asserted that the correct proportions ought to be 49.755% to the Rirratjingu, 49.755% to the Gumatj, and 0.49% to the Galpu. In reaching this figure, the geographical breakdown was not the sole consideration. Rather, other relevant factors such as the significance of the land under Aboriginal tradition were involved.

42    The Galpu also contended that their interest should be greater than 0.49%, after considering the importance of that land in relation to their Aboriginal tradition and culture, and the mining impacts suffered.

43    The NLC disputed the existence of a fixed trust of the kind described by the appellants. Section 35(8) of the ALRA provided that each amount of money that was paid to a Land Council as mentioned in ss 35(2), (3), (4) or (4B) shall be held in trust for the bodies to which or persons to whom that amount was eventually to be paid in accordance with s 35 until that amount was so paid. The NLC contended that neither the Gove Agreement nor the ALRA created or imposed a fixed trust, where the beneficial interest in the quarterly payments was held by each clan in fixed and complex but measurable proportions representative of the particular interests in land and other covenants of each group, so that the NLC had no decision-making role to play. It said that the trust, as s 35(8) of the ALRA provided, was a trust in a non-technical sense for the statutory purposes in s 35. It was one which required the NLC to ascertain who the traditional Aboriginal owners of the Aboriginal land in respect of which the payment had been received were, and then to decide upon the making of a payment of an amount equal to that payment that will be to, or for the benefit of, the traditional Aboriginal owners of the land. The Gumatj took the same position as the NLC.

44    The primary judge referred to Gagudju Association v Northern Land Council [1995] FCA 304 (Gagudju) at 9-10 and said, at [75], that the circumstances of Gagudju were relevantly analogous to the present case. There had yet to be a determination by the NLC in relation to the July Payment received on 31 July 2014. One of the features of a “fixed trust” was that the beneficial interests of all the beneficiaries, as owners in equity, were ascertainable and fixed immediately: see Federal Commissioner of Taxation v Vegners (1989) 90 ALR 547 at 551-552 per Gummow J. However, it was evident that neither the ALRA nor the Gove Agreement required the fixing of or did fix the actual beneficial apportionment of interests among the three groups. The entitlement of the collective beneficiaries was not fixed. Further, the Gove Agreement only referred to “traditional Aboriginal owners”. It did not expressly identify that the Rirratjingu, Gumatj, and Galpu were the traditional Aboriginal owners and the only traditional Aboriginal owners. The Gove Agreement provided that RTA will pay all moneys which it is liable to pay under the Gove Agreement to the NLC to or for the benefit of the “traditional Aboriginal owners”, as so defined, and made specific provision in case Aboriginal persons other that the Rirratjingu, Gumatj, and Galpu people established to the satisfaction of the NLC that they were traditional Aboriginal owners of the subject land. The Gove Agreement further provided that the NLC had the function of identifying any further traditional Aboriginal owners, as defined and not named, and the function of receiving and distributing payments to or for the benefit of the traditional Aboriginal owners in accordance with s 35(4) and other provisions of the ALRA.

45    Moreover, the primary judge said, at [79], the Payments were to be applied to cultural, economic, and social purposes. He referred to JD Heydon and MJ Leeming of Jacobs' Law of Trusts (7th ed, LexisNexis Butterworths, 2008), at [107]:

[T]here may be a valid trust in favour of a class of persons, the exact constitution of which is unknown at the time of the creation of the trust. In the case of public or charitable trusts, there will be no individuals as beneficiaries. There, the beneficiary must be regarded as the charitable purpose to which the trust property is devoted.

The primary judge said the purposes of the Payments were broadly expressed. They were not directed to be paid (assuming the proportions were fixed) to the RAC, or to the Gumatj Aboriginal Corporation (sic) (GAC), or to any particular person or body. They were not directed to be paid without qualification or direction as to their application. They were not directed to be paid without regard to their application, or without regard to the person or body who will be expected to fulfil or achieve that purpose.

46    Accordingly, the primary judge said, at [80], whilst the Payments were received under s 35(4) and held under s 34(8), at the time of their receipt by the NLC there was no present entitlement to the present appellants (or any of them) or to others to any particular sum or for any particular use until the NLC had decided in terms of s 35(4) the amount, and the person or persons or body or bodies to whom the amount was to be paid, and in this case in what proportions as between the three groups.

47    The primary judge said, by way of example, that at the time the NLC received the July Payment, neither the RAC nor any of the present appellants, either alone or in any grouping of them, was entitled to a particular payment from the NLC. The NLC was obliged under s 35(4) to disburse that Payment within six months, but until it decided to whom and in what amounts and (if appropriate) for what purposes that Payment was to be applied, there was no enforceable legal entitlement on the part of the RAC or any of the present appellants to receive any of that Payment. Of course, there may be an entitlement to oblige the NLC to make its decision so that it complied with the obligations to disburse the Payment within six months, but that did not give rise to a trust of the character proposed by the present appellants.

48    The primary judge said, at [81], the decision was that of the NLC. Section 35(8) contemplated the payment may be made to a person or a body to be decided. The “trust” it prescribed did not, at the time of receipt of each quarterly payment, entitle the RAC, the GAC, any particular body or any particular person or persons immediately to that payment or to any particular portion of that payment.

49    At [83], the primary judge concluded that the proper statutory construction of ss 35(4) and 35(8) did not give rise to a fixed trust. Nor did the terms and provisions in the Gove Agreement.

50    The present appellants’ primary (or alternative) contention was that the Gove Agreement, along with ss 35(4) and 35(8), created a species of statutory trust enforceable in equity.

51    The primary judge, at [85], said a statute may adopt some attributes of a trust, such as the fixing of liability for application of funds other than for specified statutory purposes, but that did not constitute making those interested in the fund owners in equity: see Occidental Life Insurance Co of Australia Ltd v Bank of Melbourne (1991) 7 ANZ Insurance Cases 61-201 at 78,316. Those with an interest in the trust fund have standing for relief to enforce the relevant statutory obligations about administration of the fund: see Fouche v Superannuation Fund Board (1952) 88 CLR 609 at 640.

52    In Wik Peoples v Queensland (1996) 187 CLR 1 (Wik), Gummow J observed at 197:

A statutory body in which a fund is vested may be styled as a “Trust”, or may be given by its constituent the investment powers of trustees. In neither case may contributors to the fund have the beneficial interest of an ordinary cestui que trust [Fouche v Superannuation Fund Board (1952) 88 CLR 609 at 640; Superannuation Fund Investment Trust v Commissioner of Stamps (SA) (1979) 145 CLR 330 at 353-354 and 362-364]. On the other hand, from an express statement that a statutory body is not bound by the law relating to the administration of trust funds by trustees, it does not necessarily follow that in other respects the body is a trustee in the ordinary sense of moneys held by it [Registrar of Accident Compensation Tribunal v Federal Commissioner of Taxation (1993) 178 CLR 145 at 161-168]. In such ways the legislature may create entities which have some but not all of the characteristics of a trust. In each case the true construction of the law determines the degree of the analogy.

53    Justice Gummow’s observation was reinforced in Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566, where the notion of a trust for statutory purposes was applied, in the context of local government legislation using the term “trust” in relation to land held by a Council for public purposes, and held to be used in a “non-technical sense” to control what otherwise would have been the freedom of disposition enjoyed by the registered proprietor of an estate in fee simple: see [44], [47], and [67] per curiam.

54    The primary judge said, at [88], the question of whether there was a statutory trust depended on the construction of the provisions of the ALRA. It was important to recognise that even if the statute created funds characterised as a “trust”, that was simply a creature of statute and accordingly, its operations were principally governed by the relevant legislative provisions.

55    The ALRA provided for the Land Trust to hold an estate in fee simple in the land for the “benefit” for the Aboriginal people concerned, a class that may fluctuate as traditional affiliations wane or wax: see R v Toohey; Ex parte Meneling Station Pty Ltd and Others (1982) 158 CLR 327 at 359 (Meneling Station). The terminology used, Aboriginal people concerned, was also couched in wider terms than traditional Aboriginal owners. It was clear that the wider grouping reflected the Land Trust’s status as holder of an estate in fee simple. However, the fact that the Land Trust was subject to express constraints in ss 5, 12, and 19 of the ALRA as to how it can deal with the land was further indication that the trust in question was not a trust in an ordinary sense, but in the non-technical sense for statutory purposes: see Wurridjal v Commonwealth (2009) 237 CLR 309 at [128] and [171] (Wurridjal).

56    The primary judge concluded that the Gove Agreement and s 35(4) did not create a statutory trust in a strict technical sense. Rather, it was a trust in a non-technical sense for statutory purposes. However it was described, the role of the NLC included the identification of the traditional Aboriginal owners of the land and the allocation of the Payments to individuals, groups, or other persons which must be to, or for the benefit of, those traditional Aboriginal owners.

57    Before the primary judge, the present appellants advanced the following main submissions in relation to their trust claim.

58    First, the primary judge said, the present appellants’ contended that the quarterly payments payable by RTA under the Gove Agreement and received by the NLC under s 35(4) of the ALRA were held by the NLC on trust for the traditional Aboriginal owners of the relevant land. If s 35 created a trust, it was said that it was therefore clear that the Aboriginal owners of the land were the beneficiaries of that trust. There was no dispute that the Rirratjingu, Gumatj, and Galpu were the traditional Aboriginal owners of the relevant land. Thus, the Rirratjingu, Gumatj, and Galpu in a general or colloquial sense were the beneficiaries of that trust.

59    The term “to or for the benefit” of traditional Aboriginal owners of the land as used in s 35 was consistent with the proposition that it was a notion of a trust for statutory purposes. That did not necessarily mean that payment of an amount equivalent to a payment received in respect of Aboriginal land must be directly disbursed to individual Aboriginal persons, or entities, as the application of the “trust” funds may be effected by the application of an amount to purposes that promote their well-being, or to an entity like the RAC or another relevant Aboriginal corporation that existed for those purposes. The class of owners defined in s 35(4) and the Gove Agreement were not fixed. The composition of a group will change over time, as too may affiliations to the land.

60    Even if it was currently common ground that the traditional Aboriginal owners of the land were members of the three Aboriginal groups, neither the ALRA nor the Gove Agreement expressly identified, or expressly required the identification of, particular Aboriginal persons or entities to receive payments. It was the object of the legislation and the Gove Agreement that all traditional Aboriginal owners, regardless of their connection to particular groups, benefitted from the funds payable through mining operations.

61    Second, the present appellants pointed to the fact that the fund which was the subject of the trust was the consideration payable by RTA under the Gove Agreement in return for the grant of leases and other covenants given by the traditional Aboriginal owners of the land the subject of those leases and that the fund was payable in the form of regular payments under the Gove Agreement.

62    Whilst that was so, the primary judge said at [93], it did not lead to a trust of the character argued for. Whilst s 35(4) conferred an obligation on the NLC to pay “an amount equal to” the Payments it received to, or for the benefit of, the traditional Aboriginal owners of the land concerned, it was not expressly obliged to pay the payment to a particular person or entity. It also did not require that the payment be apportioned among subsets of traditional Aboriginal owning groups, or to the three groups of traditional owners (as was the present case) in a particular way. It was to be for their benefit. Upon receipt of the funds, there was no person or body with rights to lay claim to any of those funds: see Superannuation Fund Investment Trust v Commissioner of Stamps (SA) (1979) 145 CLR 330 at 353-354 per Mason J. The ALRA did not authorise the conferral of proprietary rights beneficially upon any particular party: see, for example, s 71 of the ALRA and Risk v Northern Territory (2002) 210 CLR 392 at [75]. Any moneys paid were subject to the NLC carrying out its statutory functions pursuant to the ALRA, such as those outlined in ss 23 and 35. Besides lawfully carrying out its duties under the ALRA, it was not obliged to make any particular payments to any particular person or entity. Since the execution of the Gove Agreement, the NLC had paid out the Payments received from RTA to the “traditional Aboriginal owners” within the mandatory statutory period of six months.

63    Third, it was said that the Rirratjingu possessed a single proprietary community title in relation to certain parts of that land. They were the sole Aboriginal owners of some of that land. Allied to that was the fourth point, namely that the income which was attributable to the Rirratjingu belonged to them. It was said that there was also no express indication from the Gove Agreement or the ALRA that the beneficial entitlement of the traditional Aboriginal owners was not absolute in the sense that their right to enjoy the income from their land was not dependent upon a prior decision of the NLC.

64    The primary judge said, at [97], that the Gove Agreement was silent as to the apportionment of the funds payable to traditional Aboriginal owners under the Gove Agreement between the Rirratjingu, Gumatj, and Galpu. Absent agreement, the present appellants submitted that the apportionment of income generated from an estate in fee simple between the beneficial co-owners of the component parts of the estate would be based on an equitable accounting reflecting the contributions that each co-owner has made towards generating that income, by analogy with the calculation of the beneficial interest enjoyed by persons who contribute in different ways to the acquisition of property: see Calverley v Green (1984) 155 CLR 242.

65    On these points, the primary judge said at [98], it was important to contrast the provisions in the Gove Agreement in relation to the payments derived from mining operations, which referred only to “traditional Aboriginal owners”, and other financial benefits. These included sub-lease and asset transfers to be made expressly in favour of the Rirratjingu and Gumatj, rather than “traditional Aboriginal owners”. In some instances, benefits were directed to one of the two groups, such as a land transfer to the Rirratjingu, and the grant of timber rights to the Gumatj. The Gove Agreement recognised the interests that were clearly held solely by a particular Aboriginal group and, in the context of mining operations which covered a vast area, contemplated the possibility of claims by a person as a “traditional Aboriginal owner” in the future.

66    It appeared, the primary judge said at [99], that the present appellants’ trust case was premised on the proposition that, under the ALRA, “traditional Aboriginal owners” have “ownership” of the land and consequently of the proceeds of it, that is, relevantly, the Payments. However, the ALRA did not confer or authorise the conferral of proprietary rights upon any particular person or persons beneficially: see Risk at [75]. Prior to the decision in Mabo v Queensland (No 2) (1992) 175 CLR 1, it was observed by Blackburn J in Milirrpum v Nabalco (1971) 17 FLR 141 that the general law, at the time, did not recognise the interests in land possessed by the Yolngu clans on the Gove Peninsula under Aboriginal laws and customs. The ALRA was introduced after that decision by Blackburn J. Thus, in Meneling Station at 355, Brennan J explained that the ALRA:

[P]rovides for the restoration of some areas of land within the Northern Territory to Aboriginal control and gives legislative recognition to Aboriginal rights and interests in that land. The Act does not confer or authorise the Crown to confer proprietary rights upon particular Aboriginals beneficially: Land Trusts are created to hold the title to an estate in fee simple in Aboriginal lands (s 4).

…

The granting of land under the Act vests in the hands of Aboriginal Land Trusts proprietary rights which, unlike the traditional usufructuary rights which Blackburn J held not to be property, are recognised by the common law. Those proprietary rights are carved out of the Crown’s radical title.

67    Particularly, s 71 of the ALRA restored traditional rights by which Aboriginal people became entitled to their traditional rights of entry, occupation, and use with respect to Aboriginal land granted in fee simple to an Aboriginal Land Trust: see Meneling Station at 358. This construction was reinforced in Wurridjal at [98]-[100] and [382]-[391] per French CJ and Crennan J respectively, where it was found that the rights involved were sourced in statute and were not native title rights recognised by common law.

68    At [101], the primary judge said the words in ss 35(4) and 35(8) indicated that neither the RAC nor any of the individual present appellants were beneficiaries in the ordinary sense, because none of them had a beneficial interest in the Payments as they were not absolutely entitled to them or any particular portion of them. They could not as individuals call for a transfer of moneys, even though they were within the category of traditional Aboriginal owners of the land. A traditional Aboriginal owner did have a right to have the funds administered properly in accordance with the statute. That is, they were entitled to ensure that the Payments were disbursed within six months of receipt, and that they were allocated to persons or bodies “for the benefit” of the traditional Aboriginal owners.

69    At [102], the primary judge said he did not accept that any disputes as to allocation of income between the traditional Aboriginal owners under the ALRA were to be determined by the Court as the primary decision maker. The present appellants contended that the express terms of s 35(4) did not confer power to the NLC to determine who the traditional Aboriginal owners were, and, as there were three groups, what their respective entitlements should be. The present appellants said the absence of an express grant of power to make such a determination was a strong indication that no such grant of power was intended. This was contrasted with ss 35(2) and 35(3)(b), where a Land Council was given the express power to determine proportions between the corporations of the traditional owners affected, and s 35(6C), which empowered the Land Council to vary or revoke an existing determination and to “make a new determination” in favour of another corporation. The present appellants also relied on the text of s 35(8) in support of their contention. Thus, in circumstances where there was a dispute as to allocation of funds between Aboriginal groups in relation to land rights, it was argued that s 25 of the ALRA conferred power upon the Court to resolve such disputes.

70    At [104], the primary judge said that s 35 and the accompanying provisions provided for the accountability of expenditure of money of a Land Council sourced mainly from the Consolidated Revenue Fund. There was authority that recognised that persons with an interest in payment out of a statutory account styled as a “trust” were entitled to insist, by mandamus and through other remedies, that the relevant statutory obligations were adhered to, but nevertheless held that they were not beneficially entitled to any part of the funds in the account: see Harmer v Commissioner of Taxation (1991) 173 CLR 264 at 272-273. Persons who stood to benefit as the object of the obligations may be said, in a loose sense, to be entitled to the repayment of an equivalent sum in the event of misapplication, but they could not lay claim to any particular money in specie simply on its receipt under the statute as if they were beneficially entitled to any part: see New South Wales v Commonwealth (1932) 46 CLR 246 at 260-261.

71    At [105], the primary judge said that once steps were taken to effectuate the objects of s 35(4) for payment of an “amount equal” to the payment received, by identification of the relevant traditional Aboriginal owners and by deciding upon a payment or payments of the amount or amounts considered to be to or in their benefit, it might be said that at that point the decision of the NLC about the payments to be made meant the particular proposed payments were required under s 35(8) to be held on trust for the persons or bodies who were eventually to receive payment. At that point, after the decision under s 35(4), there may be required a segregation, and dedication, of an amount required to effectuate that object: see New South Wales v Commonwealth (1932) 46 CLR 246 at 260. The objects and subject matter of s 35(8), and of the trust obligation, concerned the “persons or bodies” to whom an “amount” was eventually (within six months) to be paid. That obligation was different from the objects and subject matter of s 35(4) which concerned the “traditional Aboriginal owners” and the “payment received”.

72    At [106], the primary judge said s 35(4) merely provided the preconditions to establish any such trust imposed by s 35(8). The preconditions required identification of the objects, the traditional Aboriginal owners, and the subject property, the payment equal to the amount received, to enliven s 35(8). Thus, until such “traditional Aboriginal owners” were identified, no individual had any entitlement to require payment. The identification was necessary because, “traditional Aboriginal owners”, was an unincorporated association of persons without separate legal personality whose membership fluctuated. Also the preconditions required in s 35(4) involved the evaluation of complex factual matters. Whether such a “trust” arose so that, when the NLC had made its decision as required by s 35(4), the person or body to whom some funds were to be paid pursuant to that decision was entitled, as the beneficiary of a trust, to enforce the decision was not a point which it was necessary finally to resolve. There had been no such decision in relation to the July Payment, and any such decision was not the foundation for the present appellants’ case.

73    At [107], the primary judge said ss 23 and 24 made it clear that the groups who were the relevant traditional Aboriginal owners of the land concerned were those groups determined to be so by the relevant Land Council in the course of performing its functions: see also Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2014] FCA 25; 220 FCR 202 (Gondarra) at [86]. It was well established that the persons comprising the group, being the traditional Aboriginal owners of any land, may change over time, and that a Land Council was required to form an opinion on which persons constituted the group from time to time: see Jungarrayi v Olney (1992) 34 FCR 496 at 503. Then, apart from the time limitation, the NLC needed to decide the manner and amounts of any payout or payments (to the total of the quarterly payments) which were to be made to or for the benefit of traditional Aboriginal owners.

74    Those matters, the primary judge said at [108], together with the general functions and responsibilities of the Land Council under the ALRA already referred to, indicated that it was intended by s 35(4) that the NLC should in the first instance make the decision about the application of the Payments, including in this instance the proportions applicable to each of the three groups as well as the individual or group or corporate recipients, and where appropriate the purposes for which the payment was to be received and applied. It was a representative body, with characteristics and qualities which indicated it should have the capacity to do so. There was no other body or entity with the appropriate qualities to do so, under the ALRA.

75    At [109], the primary judge said the decisions of the NLC must of course be lawful. He did not therefore foreclose the possibility of judicial review or oversight of the decisions in appropriate circumstances. However, it was clear that the NLC was intended to be the decision maker under s 35(4).

76    For those reasons, the primary judge did not accept the trust case put forward by the present appellants. The “trust” which s 35(8) established was a statutory trust, simply recognising that the relevant Land Council had no beneficial interest in moneys received under s 35(4), and must deal with funds received under s 35(4) in accordance with its terms. Where, as here, there were three separate groups of people who were the traditional Aboriginal owners of the land, the NLC had the responsibility to decide, in accordance with its statutory obligations, how to apportion the Payments, including the July Payment, as part of its function of deciding under s 35(4) what amount or amounts were payable “to or for the benefit of the traditional Aboriginal owners” of that land.

Consideration

77    In our opinion, despite the length and detail of the submissions and of the grounds of appeal, the appeals may be disposed of relatively shortly.

78    Section 35(4) of the ALRA imposes a statutory obligation to pay an amount equal to the amount received by the Land Council and to do so within six months after that payment is received. Plainly the Land Council must act in order to make the payment. The payment must be “to or for the benefit of the traditional Aboriginal owners of the land, the term “traditional Aboriginal owners” being defined in s 3(1) to mean, unless the contrary intention appears, “in relation to land, … a local descent group of Aboriginals who: (a) have common spiritual affiliations to a site on the land, being affiliations that place the group under a primary spiritual responsibility for that site and for the land; and (b) are entitled by Aboriginal tradition to forage as of right over that land.”

79    The obligation on the Land Council to pay the amount to or for the benefit of the traditional Aboriginal owners of the land necessarily involves a decision or determination, in the sense of forming an opinion, by the Land Council of who the traditional Aboriginal owners are at the time it is to make the payment. Nevertheless, this does not make the action of the NLC in the present case unreviewable, as the primary judge correctly held, particularly at [109] of the first judgment.

80    Because the provision is cast in terms of a statutory obligation, in our opinion it is a distraction to contrast the use of the word “determines” in ss 35(2) and 35(3) so as to reason that the absence of the word “determines” in s 35(4) signifies that the Land Council has no decision-making role in paying the amount under s 35(4). Therefore, we see no difference in substance in the reporting requirements in s 37 referring separately to determinations made by the Land Council under ss 35(2) and 35(3) and to details of amounts paid under s 35(4).

81    In our opinion, the statutory duty to pay necessarily involves determining to whom the payment is to be made. Where there is only one local descent group of Aboriginals within the definition of “traditional Aboriginal owners” then the amount is to be paid by the Land Council to or for the benefit of that group. Where there is more than one such local descent group then the Land Council must pay to or for the benefit of each such group and, except in the case where the Land Council makes the payment to a single entity for the benefit of all the local descent groups, that necessarily involves apportioning the payment.

82    We reject the submission made by the appellants that the words “for the benefit of” in s 35(4) are limited in their meaning to “at the direction of” the traditional Aboriginal owners of the land. We see no support for that limited meaning in the terms of the provision.

83    We do not accept the appellants’ submission that the concept of a valid discharge for the payment has any relevance to the construction of s 35(4). There is no reference to a discharge for a payment in s 35. This may be contrasted with s 27(1)(d), by way of example, which empowers a Land Council to receive moneys on behalf of a Land Trust and provide a valid discharge (inferentially, on behalf of the Land Trust) for such moneys. No equivalent concepts are apparent in s 35.

84    Nor would we construe s 23(3) as a provision which has the effect of denying to the NLC any decision-making role under s 35(4). In Alderson v Northern Land Council (1983) 20 NTR 1 at 9, Muirhead J concluded that the word “action” in s 23(3) could not be construed to apply to mere negotiations by the NLC. His Honour said, at 10, that only when the outcome of the negotiations was known could the NLC be satisfied that the traditional owners understood and consented to the outcome. Otherwise there would be a “substantial, if not total impediment to the Land Council’s functions”. The same might be said about s 35(4). A literal construction of s 23(3) would prevent the NLC from discharging its duty under s 35(4). The only way in which the provisions may operate is for a Land Council to be able to discharge its duty under s 35(4) irrespective of the consent of traditional owners. If, in so doing, a Land Council errs, any remedy lies in review by the courts.

85    We turn to consider briefly two decisions relied on by the primary judge.

86    In Gagudju, Olney J considered s 35(2) of the ALRA. It provided expressly for the Land Council to determine proportions as between the Councils and Aboriginal Associations referred to in the provision. His Honour was considering whether or not the respondent NLC was obliged to make any payment before the period of six months had expired since the NLC had received the s 64 payments. In those circumstances, his Honour held that, where there were two or more bodies potentially entitled to receive payments under s 35(2), the entitlement did not arise until the NLC had made a determination as to the proportions to be paid to each body. Where there was only one body to which the Land Council was required to pay the money it had received, his Honour said as follows, at page 10:

Although the Act does not address this question, I think that in each case it is necessary for a land council to first address the question of which, if any, councils or associations meet the criteria of s 35(2)(a) and (b) and then to determine the proportion of the moneys received to be paid to such body or bodies as meet those criteria. In my view no entitlement to the money is created before a determination is made. But once a determination is made the land council becomes obliged to pay the money in accordance with the determination. However, provided a determination is made and the money paid to the appropriate body or bodies within 6 months of its receipt by the land council, the statutory duty created by s 35(2) will have been observed.

87    In Gondarra, Kenny J was considering a judicial review challenge to decisions of the Minister to consent under s 19(4A) of the ALRA to the Arnhem Land Aboriginal Land Trust granting a lease over land in the Gove Peninsula and, secondly, approving under s 27(3) of the ALRA the NLC entering into, and permitting the Land Trust to enter into, a contract entitled “RTA Gove Traditional Owners Agreement”. Her Honour dismissed the application for judicial review. Her Honour said, at [86]:

Significantly for this case, however, the Minister was herself required (by the combination of s 27(4) and the terms of s 23(3) (prior to paras (a) and (b)) to be satisfied that the NLC had in fact had “regard to the interests of, and … consult[ed] with, the traditional Aboriginal owners … and … other Aboriginals interested in the” Relevant Land. These two groups were, however, determined by the NLC. This is evident from s 23(3), as well as from other provisions of the Land Rights Act: see, especially, s 24; and Myoung [v Northern Land Council (2006) 154 FCR 324] at 330 [22]; Alderson v NLC at 359–360, 362; and Tapgnuk [v Northern Land Council (1996) 108 NTR 1] at 9. Thus, the Minister rightly accepted that, as Dr Gondarra submitted, by virtue of s 27(4), the Minister was required to be satisfied that the NLC had complied with the duty to consult to which s 23(3) gave rise, before giving her approval to the Agreement under s 27(3). It was this state of satisfaction that Dr Gondarra said had miscarried.

88    Section 23(3) of the ALRA provided:

In carrying out its functions with respect to any Aboriginal land in its area, a Land Council shall have regard to the interests of, and shall consult with, the traditional Aboriginal owners (if any) of the land and any other Aboriginals interested in the land and, in particular, shall not take any action, including, but not limited to, the giving of consent or the withholding of consent, in any matter in connexion with land held by a Land Trust, unless the Land Council is satisfied that:

(a)    the traditional Aboriginal owners (if any) of that land understand the nature and purpose of the proposed action and, as a group, consent to it; and

(b)    any Aboriginal community or group that may be affected by the proposed action has been consulted and has had adequate opportunity to express its view to the Land Council.

89    In our opinion, in light of the substantial shift in the matters argued on the appeals from the issues before the primary judge, these decisions are of limited relevance. Gagudju provided support for the conclusions of the primary judge in the trust case. The conclusions of Olney J are not inconsistent with the conclusions we have reached in relation to s 35(4). Similarly, Gondarra is not inconsistent with those conclusions. However we prefer to rely on the terms of s 35(4), a provision which was not considered in either Gagudju or Gondarra.

90    We therefore reject the contention on behalf of the appellants that the NLC had no role in paying the amount to traditional Aboriginal owners and had no role in apportioning a payment to or for the benefit of each such local descent group. In our opinion, the NLC had the power to pay the amount to those which it considered were the traditional Aboriginal owners of the Aboriginal land, and the NLC had the power to apportion the moneys to be paid for and behalf of those traditional Aboriginal owners.

Conclusion and orders

91    For these reasons, each appeal should be dismissed, with costs.

Associate:

Dated:    23 March 2017

SCHEDULE OF PARTIES