FEDERAL COURT OF AUSTRALIA

Ellis v Central Land Council [2019] FCAFC 1

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The cross-appeal be dismissed.

3.    Within seven days hereof, the parties should seek to agree orders as to costs and any other consequential relief arising from these reasons for judgment. If they are unable to reach agreement, within that period each should file and serve a brief outline of submissions, not to exceed five pages, in support of their respective orders.

4.    Final orders will be made on the papers and without a further oral hearing.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    This appeal is from a judgment of a Judge of this Court, which is reported as Ellis v Central Land Council [2018] FCA 35. The primary judge’s reasons for judgment are lengthy (140 pages), which reflects the extensive evidentiary material adduced below, as well as the multiple grounds raised by the then applicants (now appellants) in their unsuccessful judicial review challenge in the proceedings below. That challenge related to the proposed grant by the Amoonguna Aboriginal Land Trust (AALT) of four leases and a licence (Interests), each for a term of 40 years, in respect of “Aboriginal land” in Amoonguna in the Northern Territory. The proposed grants were to the Northern Territory (NT), the MacDonnell Regional Council (MRC), Central Australian Aboriginal Congress Aboriginal Corporation (Congress) and Indigenous Essential Services Pty Ltd (IES).

2    The proposed grants were preceded by directions made by a Committee of the Central Land Council (CLC), acting as delegate of the CLC. The directions were issued pursuant to ss 19(3) and 19(4A) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALR Act). Under s 19(5)(a) of the ALR Act, the CLC is prevented from giving a direction for the grant of an estate or interest in land unless it is satisfied that the traditional Aboriginal owners of the land understand the nature and purpose of the proposed grant and, as a group, consent to it. The primary judge rejected the appellants’ challenge to the lawfulness of the Committee’s directions, but found that the AALT had not granted the Interests because of a failure properly to apply the corporate seal, contrary to requirements imposed by ss 4(3)-(6) of the ALR Act.

3    The appellants appeal from the primary judge’s rejection of their challenge to the validity of the Committee’s directions and the decision of the AALT to grant the Interests. The CLC and the AALT cross-appeal from the primary judge’s decision that the AALT had not granted the Interests. The first and second appellants (Ms Marie Ellis and her sister Ms Roseanne Ellis) are traditional Aboriginal owners, for the purposes of the ALR Act, of Amoonguna land. The third appellant (ICL) is a body corporate established by some traditional owners from the Amoonguna community. Ms Marie Ellis is the driving force behind ICL. There are also two notices of contention.

4    The appeal raises questions concerning the circumstances in which the CLC can legally be satisfied that traditional Aboriginal owners of land, as a group, consent to a proposed grant, as well as the legal consequences which ensue if the CLC’s state of satisfaction is legally flawed.

5    Reflecting the way in which the case was conducted below, the appellants raise multiple grounds of appeal which, unfortunately, give rise to these somewhat lengthy reasons for judgment.

6    For the following reasons:

(a)    the appeal will be dismissed;

(b)    the cross-appeal will be dismissed; and

(c)    it is not necessary to express concluded views on the issues raised by the notices of contention.

7    It is well to start with an outline of the relevant statutory framework, summarise the relevant background facts, summarise the primary judge’s reasons for judgment, outline the parties’ respective submissions and then explain why we consider that the proceeding should be determined in the manner foreshadowed above.

Relevant statutory framework summarised

8    The objectives and scheme of the ALR Act have been analysed in several cases, including R v Toohey, Ex parte Meneling Station Pty Ltd [1982] HCA 69; 158 CLR 327 (Meneling Station) at 354-355 per Brennan J; Wurridjal v Commonwealth [2009] HCA 2; 237 CLR 309 (Wurridjal) at [18]-[22] per French CJ and Alderson v Northern Land Council (1983) 20 NTR 1 (Alderson) at 7-8 per Muirhead J (the primary judge’s analysis of these and other authorities, with which we respectfully agree, is set out at [118] below).

9    The legislation creates a regime through which Aboriginal people in the Northern Territory obtain rights or interests in land over which they have “affiliations” in accordance with traditional law and custom. As the long title of the ALR Act states, the legislation provides “for the granting of Traditional Aboriginal Land in the Northern Territory for the benefit of Aboriginals, and for other purposes”. Such land is held by a Land Trust. There is a process for identifying who are the traditional Aboriginal owners (as defined in s 3(1)), and whether other Aboriginal people have interests in the area which should either be recognised or otherwise affect a grant to the traditional owners. The land the subject of these proceedings has been held by the AALT on behalf of the Amoonguna community since 1978.

10    A Land Trust is established under s 4. It is entitled to “hold title to land in the Northern Territory for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of the land concerned…” (s 4(1)).

11    Because, as noted above, the use of the common seal by the AALT is a relevant issue in the cross-appeal, it is desirable to set out the relevant provisions of s 4 on this topic:

4    Land Trusts

…

Legal status of Land Trust

(3)    A Land Trust:

(a)    is a body corporate, with perpetual succession;

(b)    shall have a common seal;

(c)    subject to this Part, may acquire, hold and dispose of real and personal property; and

(d)    may sue and be sued in its corporate name.

Common seal of Land Trust

(4)    The common seal of a Land Trust shall be kept by a member of the staff of the Land Council in the area of which the Land Trust holds land who has been authorized by the Land Council for the purpose.

(5)    The common seal of a Land Trust is to be affixed to a document only with a written authority signed by:

(a)    if the Trust consists of 4 or more members—at least 3 of those members; or

(b)    if the Trust consists of 3 members—at least 2 of those members.

Note:    Section 7 deals with the membership of a Land Trust.

(6)    All courts, judges and persons acting judicially shall take notice of the common seal of a Land Trust affixed to a document and shall presume that it was duly affixed.

Notices are not legislative instruments

(7)    A notice under subsection (1), (1AC) or (2B) is not a legislative instrument.

12    One of the functions of a Land Trust is to hold title to land vested in it in accordance with the ALR Act and to exercise its powers as the titleholder of such land for the benefit of the Aboriginals concerned (s 4(1)). A Land Trust is prevented from exercising its functions in relation to land held by it except in accordance with a direction given to it by the Land Council for the area in which the land is situated. A Land Trust is obliged to take action in accordance with such a direction (s 5(2)).

13    Land Councils are established under s 21 of the ALR Act. Like a Land Trust, a Land Council is a body corporate, with perpetual succession, is required to have a common seal, and is empowered to acquire, hold and dispose of real and personal property (s 22(1)). Section 22(2) contains a provision in similar terms to those set out in s 4(6) (see [11] above).

14    The functions of a Land Council are described in s 23. It is sufficient to highlight only some parts of that provision:

23    Functions of Land Council

(1)    The functions of a Land Council are:

(a)    to ascertain and express the wishes and the opinion of Aboriginals living in the area of the Land Council as to the management of Aboriginal land in that area and as to appropriate legislation concerning that land; and

(b)    to protect the interests of traditional Aboriginal owners of, and other Aboriginals interested in, Aboriginal land in the area of the Land Council; and

…

(c)    to consult with traditional Aboriginal owners of, and other Aboriginals interested in, Aboriginal land in the area of the Land Council with respect to any proposal relating to the use of that land; and

    …

15    Important constraints are imposed by s 23(3) on a Land Council’s functions concerning Aboriginal land in its area. There are two constraints, one substantive and the other procedural. The substantive constraint is the Land Council’s obligation to “have regard to the interests” of any traditional Aboriginal owners of the land and any other Aboriginals interested in the land. The procedural constraint is the Land Council’s obligation to consult with those same classes of Aboriginals. It is important to note the terms of s 23(3), which imposes important preconditions to the carrying out of a Land Council’s functions with respect to any Aboriginal land in its area:

(3)    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.

16    The powers of a Land Council are set out in s 27. In general terms, a Land Council is empowered to do all things necessary or convenient to be done for or in connection with the performance of its functions, including:

(a)    employing staff;

(b)    obtaining the advice and assistance of persons who are expert in any matter with which the Council is concerned; and

(c)    giving lawful directions to a Land Trust holding land in its area concerning the performance of its functions.

17    Section 29 is an important provision. It provides for who can be a member of a Land Council. Generally, membership is restricted to Aboriginals who live in the area of the Land Council, or whose names are set out in the register maintained by the Land Council under s 24 (a Land Council has a discretion under s 24 to compile and maintain a register setting out the names of the persons who, in the opinion of the Council, are the traditional Aboriginal owners of Aboriginal land in the Land Council’s area). The members must be chosen by Aboriginals living in the area of the Land Council in accordance with procedures which have been approved by the Minister. It is desirable to set out ss 29(1) and (2):

Membership of Land Council

(1)    The members of a Land Council shall be Aboriginals living in the area of the Land Council, or whose names are set out in the register maintained by the Land Council in accordance with section 24, chosen by Aboriginals living in the area of the Land Council in accordance with such method or methods of choice, and holding office on such terms and conditions, as is, or are, approved by the Minister from time to time.

(2)    A Land Council may, with the approval of the Minister, co-opt Aboriginals living in the area of the Land Council as additional members, but not more than 5 such members may hold office at any one time.

18    The expression “traditional Aboriginal owners” is defined in s 3(1) to mean, 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.

19    Land Councils are empowered to delegate some of their functions and powers to a committee (s 28(2)), as established under s 29A. The powers which may be delegated to a committee include the power to give a direction under s 19. A committee must comprise members of the Land Council (s 29A(1)) and conduct its meetings in accordance with written rules made by the Land Council (s 29A(4)). A committee is required to keep minutes of its meetings (s 29A(6)).

20    Section 19 of the ALR Act contains provisions which are of central importance in the proceedings. It relates to dealings by a Land Trust with interests in land. It is important to note the terms of ss 19(3) and (4A) to (6) (noting also how they substantially reflect the consultation obligations imposed by s 23(3)):

19    Dealings etc. with interests in land by Land Trusts

…

(3)    With the consent, in writing, of the Minister, and at the direction, in writing, of the relevant Land Council, a Land Trust may, subject to subsection (7), grant an estate or interest in land vested in it to the Commonwealth, the Northern Territory or an Authority for any public purpose or to a mission for any mission purpose.

…

(4A)    With the consent, in writing, of the Minister, and at the direction, in writing, of the relevant Land Council, a Land Trust may, subject to subsection (7), grant an estate or interest in the whole, or any part, of the land vested in it to any person for any purpose.

(5)    A Land Council shall not give a direction under this section for the grant, transfer or surrender of an estate or interest in land 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 grant, transfer or surrender and, as a group, consent to it;

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

(c)    in the case of a grant of an estate or interest—the terms and conditions on which the grant is to be made are reasonable.

(6)    Where a Land Council, in giving a direction for a proposed grant, transfer or surrender of an estate or interest in land, fails to comply with subsection (5), that failure does not invalidate that grant, transfer or surrender unless the person to whom the grant, transfer or surrender was made procured the direction of the Land Council by fraud.

…

21    It is notable that the requisite state of satisfaction in both ss 19(5)(a) and 23(3) involves the Land Council being satisfied that the traditional Aboriginal owners in the area understand the nature and purpose of the proposed grant and, as a group, consent to it. This is to be contrasted with the state of satisfaction regarding any individual Aboriginal or Aboriginal group in respect of whom a lesser level of satisfaction is required under ss 19(5)(b) and 23(3)(b), namely that any Aboriginal community or group that may be affected by the proposed action has been consulted and has had a adequate opportunity to express its view to the Land Council. As Kenny J observed in Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2014] FCA 25; 220 FCR 202 (Gondarra) at [72], there are different formulations of the requisite state of satisfaction in respect of Aboriginal people. Traditional Aboriginal owners need to be better informed about a proposal than those Aboriginal communities or groups who may simply be affected by such a proposal and who are not the traditional owners. A separate and additional state of satisfaction on the part of the Land Council must exist under s 19(5)(c), namely satisfaction that the terms and conditions on which the grant of an estate or interest is to be made are reasonable (see Gondarra at [143] per Kenny J).

22    The definition of “grant” in s 3(1) provides:

grant, in relation to an interest in land (including any interest referred to in a paragraph of subsection (2) of this section), includes the doing of any action by reason of which the interest arises.

23    The definition of “estate or interest in land” is in s 3(2).

24    Under s 71, the traditional rights of Aboriginal people to use or occupy Aboriginal land are made subject to grants such as those made under s 19:

71    Traditional rights to use or occupation of Aboriginal land

(1)    Subject to this section, an Aboriginal or a group of Aboriginals is entitled to enter upon Aboriginal land and use or occupy that land to the extent that that entry, occupation or use is in accordance with Aboriginal tradition governing the rights of that Aboriginal or group of Aboriginals with respect to that land, whether or not those rights are qualified as to place, time, circumstances, purpose, permission or any other factor.

(2)    Subsection (1) does not authorize an entry, use or occupation that would interfere with the use or enjoyment of an estate or interest in the land held by a person not being a Land Trust or an incorporated association of Aboriginals.

(3)    A reference in this section to an estate or interest in Aboriginal land includes a reference to:

  (a)    a licence granted under section 19; and

(b)    a licence granted by the lessee of a lease granted under section 19A; and

(c)    a licence granted by a sublessee of a sublease of a lease referred to in paragraph (b); and

(d)    a licence of a kind prescribed by the regulations for the purposes of this paragraph.

(4)    Subsection (3) does not limit section 66.

25    Another provision which assumed some significance in the primary judgment is s 77A. It provides for the circumstances in which the consent of traditional Aboriginal owners can be taken to have been given:

77A    Consents of traditional Aboriginal owners

Where, for the purposes of this Act, the traditional Aboriginal owners of an area of land are required to have consented, as a group, to a particular act or thing, the consent shall be taken to have been given if:

(a)    in a case where there is a particular process of decision making that, under the Aboriginal tradition of those traditional Aboriginal owners or of the group to which they belong, must be complied with in relation to decisions of that kind—the decision was made in accordance with that process; or

(b)    in a case where there is no such process of decision making—the decision was made in accordance with a process of decision making agreed to and adopted by those traditional Aboriginal owners in relation to the decision or in relation to decisions of that kind.

26    As will shortly emerge, although the primary judge referred several times to s 77A and even described it at [30] as an “important” provision and at [299] as “a key provision in the legislative scheme”, the provision itself was not decisive in her Honour’s reasoning in rejecting all of the then applicants’ judicial review grounds. That is primarily because the primary judge considered that there was insufficient evidence of the nature of the decision-making process to enliven the operation of the deeming provision in s 77A.

Factual background summarised

27    The primary background facts may be summarised as follows (with particular references to the primary judge’s reasons for judgment (J)).

(a)    Between June and September 2016 (including on 21 September 2016), the CLC conducted information meetings with traditional Aboriginal owners and other affected Aboriginals in relation to the proposed grants at Amoonguna, which culminated in a key meeting on 12 October 2016 at the Chifley Hotel in Alice Springs.

(b)    At the 12 October 2016 meeting, there were two competing proposals for leases. The first was from ICL, which was seeking a long-term lease (297 years) over the whole of the land the subject of the AALT (487 hectares), which would enable it to sublease as it saw fit to other entities. The second alternative proposal related to the proposed grants of different parts of Amoonguna land sought by NT, IES, Congress and MRC. All these proposed grants were for much shorter periods of time than was the case with the ICL proposal.

(c)    None of the Committee members was at the Chifley Hotel meeting. The CLC officers who were present included Mr Philip Wilyuka, a CLC member (and husband of a local traditional owner), and two members of CLC’s staff (Mr Bob Gosford, a solicitor, and Ms Helen Wilmot, an anthropologist: J[149]). The meeting considered the proposed grants to the NT, IES, Congress and MRC, and the rival proposal by ICL. Ms Marie Ellis, as President of the ICL, was and remains the driving force in ICL: J[64]. Some traditional Aboriginal owners attended the meeting, while others were absent (including Ms Elaine Ross, Mr Jeffrey Oliver and Mr Edward Neal), or left before any formal decision was made (including Mr Paul Williams).

(d)    The primary judge set out, and accepted, the evidence of Ms Wilmot as to what she observed at the 12 October 2016 meeting, and as to the basis for her opinion that the traditional Aboriginal owners concerned had, in accordance with decision-making processes applicable under Aboriginal tradition, consented, as a group, to the proposed grants to the NT, IES, Congress and MRC: J[252]-[257]. The primary judge also accepted Mr Gosford’s evidence on what he observed and then subsequently reported to the Committee in his information paper: J[365].

(e)    Mr Gosford provided those present at the Chifley Hotel meeting with some information about the competing lease proposals, but a request by Ms Marie Ellis that he provide full copies of the proposed leases was met only with summary documents being provided which set out some of the terms of the proposed leases, such as length, rent payments and purposes.

(f)    During the course of the meeting, the traditional owners asked the CLC staff members to leave the meeting. After they returned, they were informed by Mr Phillip Alice (a traditional Aboriginal owner) that the Alice family wanted to “sign up” for leases to the non-ICL entities. He said that Ms Ross, Mr Oliver and Mr Neal wanted to do the same. Ms Marie Ellis said that Ms Ross and Mr Oliver should be present and that Mr Oliver should be there to talk for himself. She added that she had “a different story” (presumably one which was different to Mr Alice’s statement, and different from the stated position of Ms Ross and Mr Neal). Ms Ellis said that another meeting was required “just for Apmereke-Artweye and Kwertengerles – not anybody else, not residents” (being two groups of local traditional Aboriginal owners who exercise rights and responsibilities in relation to the land). When Mr Gosford said that this “is a decision today of the senior group, ok?”, Mr Alice said “Yep”.

(g)    Following the 12 October 2016 meeting at the Chifley Hotel, reports on the proposed grants were prepared for the Committee by Mr Gosford (an information paper) and by Ms Campbell (a leasing paper). Ms Campbell is another CLC legal officer: J[157].

(h)    When the Committee itself met on 19 October 2016, they had before them an agenda, Mr Gosford’s information paper and Ms Campbell’s leasing paper, as well as a draft resolution.

(i)    On 19 October 2016, the Committee passed a resolution giving a direction to the AALT to enter into the non-ICL agreements and giving authority to the CLC Chair to sign the written direction. Authority was given to another CLC member to affix the common seals of the CLC and of the AALT and to sign the agreements on behalf of the CLC and the AALT: J[319].

(j)    On 19 October 2016, a CLC staff member (Ms Jasmin Rucioch) arranged for the agreements to be signed by both the CLC Chair and a member, and for the common seals of the CLC and the AALT to be affixed: J[160]. The attestation records that the seals were affixed in the presence of the Chair and single member.

(k)    On 11 November 2016, members of the AALT signed written authorities for the common seal of the AALT to be affixed to the agreements: J[161].

(l)    On 15 November 2016, the CLC sent to MRC and Congress the agreements in triplicate. MRC executed on 17 November 2016 and Congress executed on 24 November 2016. Each retained a copy and returned the two remaining copies to the CLC.

(m)    On 21 November 2016, the CLC sent to the NT and IES the agreements in triplicate (received on 23 November 2016) with written confirmation provided that day that electronic copies of the fully executed documents would be forwarded to the CLC following execution. The relevant NT Department holds the partially executed documents and to date neither has been executed by the NT or IES pending this litigation: J[42], [161].

(n)    Ms Campbell’s paper recited the requirements of s 19(5) of the ALR Act and then stated:

For a decision to be made there must be satisfactory attendance by and consultation with the traditional Aboriginal landowners. With reference to the schedules attached, the CLC has consulted with the traditional Aboriginal landowners who have instructed the CLC that they consent to each grant on the key terms and conditions as shown.

In the case of…Amoonguna…the only affected community is the community in which the grant is proposed to take place. Many of the traditional Aboriginal landowners are also members of the affected communities. The CLC held each meeting in either the affected community…or within close proximity to the affected community with transport to the meeting for community members provided by the CLC (Amoonguna-Alice Springs).

Schedule 4 to Ms Campbell’s paper set out in tabular form a summary of each proposed grant in relation to Amoonguna. The column headed “Consultation” contains the dates 21 September 2016 and 12 October 2016, being a reference to the meetings mentioned in the paper in the extract above. The paper addressed whether or not the terms and conditions relating to each proposed grant were reasonable for the purposes of s 19(5)(c), and then set out the proposed resolution.

(o)    Mr Gosford’s information paper recounted the meetings held on 21 September 2016 and 12 October 2016, including that:

On 12 October the CLC arranged for a meeting of traditional Aboriginal owners, residents and affected persons and communities at the Chifley Resort in Alice Springs in order that they consent to or otherwise consider the lease, licence and other proposals in relation to the Amoonguna ALT. At least 35 people attended that meeting, including senior traditional owners.

Those traditional Aboriginal owners that could not be present told CLC staff that they were aware of and agreed with the decisions made at the meeting on 21 September 2016 and agreed that the senior male traditional Aboriginal owners were the right people to make decisions about the Amoonguna ALT.

The paper then referred, inter alia, to the presentation that occurred at the 12 October 2016 meeting, that ICL representatives at the meeting advised that they would not vote or consider any proposal for a lease or a licence other than ICL’s proposal, that senior traditional Aboriginal owners then met privately, and that after about 40 minutes CLC staff were asked to return to the meeting and answered questions. “Senior traditional owners then advised CLC staff that they consented to the leases and licences to [MRC], to the [NT] and Congress…”.

(p)    Mr Gosford’s paper annexed a letter dated 14 October 2016 from Midena Lawyers which included a claim that the 12 October 2016 meeting was contrary to arrangements put in place by traditional Aboriginal owners for management of the land. This referred to an earlier contention that ICL was an incorporated form of the traditional Aboriginal owners and was empowered to make decisions on the use of the land: Midena Lawyers’ letter dated 11 October 2016.

28    The CLC staff member who was responsible for the records and minutes of the Committee (Ms Meagan Wynniatt), and who attended the 19 October 2016 Committee meeting, gave affidavit evidence below. She said that members were provided with agenda papers in advance of the meeting. The papers which were provided in advance of the meeting were annexed to Ms Wynniatt’s affidavit. The meeting agenda had four leasing items scheduled for consideration from 1.30 to 2.45 pm, two of which concerned the present matter, with agenda papers comprising the paper by Ms Campbell (2 pages with 23 pages of schedules and maps) which dealt with grants for five communities (including, but not limited to, Amoonguna), and the information paper by Mr Gosford dealing with Amoonguna (4 pages with an attached map and the letter dated 14 October 2016 from Midena Lawyers).

29    The members of the Committee present at the meeting on 19 October 2016 included Mr Bernard Abbott, the CLC member for Amoonguna: J[84].

30    Relevantly, the minutes of the Committee’s meeting record, sequentially, the resolution to direct the grants (passed before 2.45pm), and that the information paper was “noted and brief discussion held”.

Summary of primary judge’s reasons for judgment

31    As previously mentioned, her Honour’s reasons for judgment are very lengthy, which reflects the way the case was presented below. To avoid adding to what are already lengthy reasons for judgment here, we will highlight only the key relevant features of her Honour’s reasoning which are the subject of the multiple grounds of appeal.

32    The primary judge emphasised the two limbs to s 19(5)(a), which she described as the “understanding” limb and the “consent” limb respectively (J[236]). Her Honour described the first limb as making it clear that all traditional owners should understand the nature and purpose of the proposed grant, whereas the structure of s 19(5)(a) indicated that the phrase “as a group” only applies to the second limb. This means that the second limb does not require unanimity. However, unless the group of traditional owners has elected to have a decision-making process by a majority under s 77A(b), a simple majority of traditional owners will not necessarily suffice. Her Honour noted at J[238] that there may be reasons related to the seniority position of certain individual traditional owners which requires their consent for there to be consent “as a group”.

33    It is convenient now to describe in a little more detail the key relevant findings of fact made by the primary judge which provided the factual framework within which the multiple grounds of judicial review were considered and rejected. Her Honour noted that, while some matters of detail were disputed, there was largely uncontested evidence at a general level as to key aspects of traditional decision-making in the Amoonguna community. The evidence of Ms Marie Ellis and Ms Wilmot (who had written a report for the CLC in 2012 concerning traditional ownership and decision-making structures) was considered to be generally consistent, save in relation to the status of Ms Elaine Ross as Apmereke-artweye, as well as consultation requirements between Apmereke-artweye and Kwertengerle. To the extent of any inconsistency, her Honour said that she accepted Ms Ellis’ evidence, given that she is a traditional owner (J[242]). The primary judge set out Ms Ellis’ relevant evidence at J[243]. Those extracts included the following statement by Ms Ellis (emphasis added):

Factors such as gender, knowledge, seniority and long-term residence also bear upon the strength and priority of responsibility we Arrernte people have in relation to our estates.

34    Although the primary judge noted that a copy of Ms Wilmot’s 2012 report was not before the Committee when it made its decision (J[245]), that report relevantly identified Ms Elaine Ross as a senior Apmereke-artweye and Mr Paul Williams as a senior Kwertengerle (J[246]). Her Honour also noted that Ms Wilmot had stated in an earlier document that in 2010 it was unclear who was the next “head man” with the passing of the previous person with this status. Ms Wilmot stated that Mr Phillip Alice, “while assertive, does not have the appropriate ritual authority and care should be taken, when taking instructions that Philip (sic) does not bolster his own views by drawing on the support of the Tilmouth family”.

35    The primary judge set out extracts from Ms Wilmot’s affidavit evidence which explained how she had reached the conclusion in her report to the CLC Committee that the traditional owners, as a group, had consented to the grant of the impugned leases (J[252]). For convenience, that material is set out below (without alteration):

34.    I then observed Phillip Alice, who I know as one of the senior traditional Aboriginal owners, tell Bob Gosford that they wanted to go ahead with the leases to the NT Government, IES, [MRC] and the Congress. No one in the room disagreed with what Phillip Alice said. Phillip also said that Jeffrey Oliver, Edward Neal and Elaine Ross, who were not at the meeting, had agreed to the leases.

35.    As I have mentioned, I understand Jeffrey Oliver to be the senior kwertengerle and so he should normally be consulted by the apmereke-artweye. At the 12 October 2016 meeting Philip Alice said that senior apmereke-artweye men had met with Jeffrey Oliver to discuss the lease proposals. I was also aware that Jeffrey Oliver had attended the CLC September meeting and Bob Gosford told me that he had spoken to Jeffrey the day prior to the 12 October meeting.

36.    In my experience, it is common for one of the traditional Aboriginal owners to speak on behalf of the group. Also, in my experience, if that person does not faithfully represent the views of the group, then others in the group will speak up.

37.    It is and was my opinion, again based on my based on my training, study and experience as an anthropologist, including my experience in working with the group over the last 12 years, that Phillip Alice validly expressed the consent of the group of traditional Aboriginal owners who have traditional responsibility for making decisions about country.

38.    At the meeting, a group of mostly women refused to participate in the decision-making about the proposals for the leases of land at Amoonguna. The women were Nola Ross, Roseanne Ellis, Marie Ellis and Lynette Ellis. Grant Ellis also joined with this group. This group did not vote against the proposal, rather they signed documents that said that they would not participate in the decision. This group was also the most junior of the traditional Aboriginal owners who were present. In my opinion, this group did not, and could not under applicable Aboriginal tradition, “veto” a decision that was made by the senior men. When Philip Alice made the statements I described in paragraph 34 above, he also said something to the effect that this group of people were the nieces and nephews of the traditional owners.

39.    For these reasons, I am and was satisfied that the traditional Aboriginal owners understood the nature and purpose of the proposal land use agreements and, as a group, consented to them, and that this happened in accordance with the decision-making processes applicable under the Aboriginal traditional of the traditional Aboriginal owners. I did not regard my absence from the September meeting as affecting my opinions of the validity of the October instructions.

40.    During the meeting, I confirmed privately to Bob Gosford that there were sufficient senior traditional Aboriginal owners present to provide instructions, and I affirmed the validity of the instructions (when given by Philip Alice) by nodding my head to Bob Gosford. Immediately after the meeting, I told Bob Gosford my opinions, as set out in the previous paragraph. I then recorded my conclusions in my memorandum of 12 October 2016 to Bob Gosford so that the decisions of the group could be actioned by the CLC. This follows the usual CLC practice that the Anthropology section staff of the CLC involved in consultations on land use proposals provide to the staff who take a matter to the Council or Committee their views on whether or not the relevant traditional Aboriginal owners understand the nature and purpose of the proposal and, as a group, consented to it.

36    After summarising aspects of the cross-examination and re-examination of Ms Wilmot, the primary judge noted at J[257] that although she found some aspects of Ms Wilmot’s evidence to be less than satisfactory, she was prepared to accept her evidence as to how she reached the opinion that she did. Her Honour said at J[258] that she was strengthened in this conclusion by Mr Connelly’s evidence, whom she described as “a clear and reliable witness” (Mr Connelly is the head anthropologist at the CLC). In particular, her Honour noted Mr Connelly’s view that, while there were clearly disagreements between Amoonguna traditional owners about decision-making processes, “such disagreements within the group may not prevent the group reaching a consensus on a particular issue”. Mr Connelly said that given the status of Mr Jeffrey Oliver in the group, if there were competing views over his attitude to the impugned leases, it would be preferable that he attended any meeting and expressed his views personally. Mr Connelly said that this was not the case with Ms Elaine Ross, because there were others at her level of seniority. Moreover, her Honour accepted Mr Connelly’s evidence that if it were the case that Ms Elaine Ross and Mr Edward Neal were required to be present for a decision to be made, his experience was that other people at the meeting would have stopped the meeting proceeding or advised that they were unable to make decisions. The primary judge also noted (and plainly accepted) Mr Connelly’s evidence that he considered that Ms Wilmot was better placed than him to reach a conclusion about whether there was consent by the group, given the long period over which she had worked with traditional owners from Amoonguna (at J[261]).

37    The primary judge noted at J[263]-[264] that it was common ground that the question whether the correct traditional owners had in fact consented to the grant of the impugned lease, or whether the owners so consented as a group, were not questions for the Court itself to determine in the judicial review proceeding. They were questions for the Committee to determine in performing its function under s 19(5) of the ALR Act. Her Honour noted, however, that it was a part of the then applicants’ judicial review case that the Committee was not adequately or completely informed about the nature and significance of the differing views within the group of traditional owners, nor was it accurately informed about the views of some of the senior people, especially Mr Oliver and Ms Ross (J[265]).

38    The primary judge found at J[277] that, as at the time of the Chifley Hotel meeting on 12 October 2016, there were “real differences of opinion” between traditional owners about whether or not the impugned leases should be granted or whether or not the CLC should make an arrangement with ICL. Her Honour then noted that merely because there was a divergence of views did not mean that the Committee could not be satisfied that there was “consent as a group”. At J[278], the primary judge referred again to Mr Connelly’s evidence that “consent as a group” may also involve some with opposing views effectively electing not to press them and that the “dynamics are likely to be many and various”.

39    After summarising the evidence of Mr Oliver and Ms Elaine Ross (and noting that aspects of it were “somewhat more problematic”), the primary judge expressed the following findings at J[289]:

289.    The evidence remains in a state of uncertainty, with many inconsistencies. The applicants have not discharged their burden of proving there was any material inaccuracy in the information provided to the CLC Committee (whether by omission or otherwise) concerning the views of Mr Oliver and Ms Ross about the impugned leases, as at 12 October 2016. Further, whether or not Mr Alice and Mr Gosford were inaccurate in conveying Mr Oliver’s views is not determinative of the grounds of review advanced, for reasons I develop below.

40    The primary judge made certain findings regarding Mr Gosford’s evidence as well as making various observations concerning s 77A of the ALR Act, including stating at J[303] that the absence of any evidence or concessions about whether either of the methods set out in s 77A was engaged in the decision-making culminating in the 12 October 2016 meeting was “problematic”. It is important to note that the primary judge recognised that the two alternative methods set out in that provision were not exhaustive of the methods of decision-making which could be adopted (J[301]). Her Honour then made the following remarks at J[305] (emphasis in original):

305.    It would appear, from the evidence, that an assumption was made that some kind of traditional decision-making process was to be undertaken. I infer that from the emphasis placed by Ms Wilmot on whether the “right” elders and senior traditional owners had agreed. Ms Ellis’ own evidence would also seem to assume this was the process, as would the extract from Mr Connelly’s cross-examination. However, s 77A(a) has a curious feature, to which no attention had been paid in this proceeding, and that is that it applies where a decision of a particular kind must be made in accordance with a traditional process. There was no evidence whether that was the case in relation to a decision about the impugned leases, but again perhaps it was assumed.

41    After noting that the parties had not paid much attention to s 77A, her Honour stated at J[306] that this provision might have been relevant to the grant of relief if the judicial review applicants established one or more of their judicial review grounds concerning the lawfulness of the Committee’s state of satisfaction under s 19(5)(a).

42    The primary judge summarised the relevant evidence and made findings of fact on the material which was given to the Committee members and what they were told, noting that no evidence was given by any member of the Committee. Her Honour noted at J[312] that the Committee members “had a small window of opportunity to read and digest the papers, if the papers were not completed until the evening prior to the meeting”. Her Honour also noted that Ms Campbell’s paper, which was two pages in length (plus schedules), dealt not only with the Amoonguna land but also with proposals affecting four other communities.

43    Her Honour noted relevant parts of Mr Gosford’s paper and its description of the September and October community meetings (J[318]). It is desirable to repeat that description (without alteration):

Those traditional Aboriginal owners that could not be present [at the 12 October 2016 meeting] told CLC staff that they were aware of and agreed with the decisions made at the meeting on 21 September 2016 and agreed that the senior male traditional Aboriginal owners were the right people to make decisions about the Amoonguna ALT.

As with previous meetings the leases, licences and interests for consideration included:

•    Leases and licences to MacDonnell Regional Council – council office, workshops, parks etc;

•    Leases to the Northern Territory government – school & sewer farm;

•    A lease to Central Australian Aboriginal Congress – health clinic; and

•    A lease of the whole of the Amoonguna ALT to ICL for 99 years & 2 99 year extensions

New matters for consideration included:

•    Approval of Amoonguna township survey plans;

•    Approval of upgrades to the town sewer works;

•    Approval of upgrades to up to 50 houses at Amoonguna (and associated housing lease);

•    Consideration of the Amoonguna Farm issues; and

•    ICL charging Amoonguna residents a “poll tax” by way of rent on the houses in which ICL has no legal interest.

ICL representatives at the meeting advised that (a) at least 8 senior traditional owners had resigned from ICL in recent weeks, and (b) that the ICL representatives would not vote or consider any proposal for a lease or licence other than ICL’s proposal.

Following staff presentation on these matters and an adjournment for lunch the traditional owners asked all residents and CLC staff to leave the meeting so that senior traditional owners could consider the matters.

After about 40 minutes staff were asked to return to the meeting to answer a number of questions. Senior traditional owners then advised CLC staff that they consented to the leases and licences to the MacDonnell Regional Council, to the NT government and Congress and to the application by the NT government for a development application to allow the correctly surveyed Lots in the town to be approved, so as to allow for leases longer than 12 years.

They wanted the CLC to pursue further negotiations – as a matter of urgent priority – with both the Commonwealth and NT governments in relation to the long-overdue housing upgrades and maintenance issues at Amoonguna that present real safety issues for residents and their families. They also expressed grave concerns about the administration by ICL of an inequitable and poorly managed housing rental arrangement that was unlawful.

Traditional owners rejected the ICL proposal but instructed CLC staff that when ICL was advised of their decision that they should also tell ICL that the traditional owners wanted to consider any future proposals that ICL may have for Amoonguna, particularly in relation to service provision.

44    Her Honour then noted the minutes of the Committee meeting and the single resolution it contained covering all five communities, including Amoonguna. The terms of the resolution relevantly included a statement that the CLC “being satisfied that the provisions of section 19(5)” of the ALR Act “have been satisfied”.

45    The primary judge found at J[322] that an inference should be drawn that the discussion of Mr Gosford’s paper occurred after the s 19(5) resolution had been made. Her Honour said that it was “unknown” whether any or all of the Committee members had read Mr Gosford’s paper before voting on the resolution. This was because no Committee member gave evidence and other CLC witnesses either had not attended the meeting (i.e. Mr Gosford (see further [135(c)] below) and Ms Campbell) or, if they did, they gave no evidence about the meeting itself (i.e. Ms Wynniatt and Ms Rucioch). Her Honour stated at J[325] that she was not prepared to draw an inference that the Committee members had read all of the papers provided to them, including Mr Gosford’s paper, before voting on the resolution because there was no evidentiary basis to infer that the Committee members had read the papers before the meeting. The papers had not been completed until after 5:00 pm the evening before the meeting and there was no evidence as to how the papers were physically provided to Committee members. In those circumstances, the primary judge said the following at J[326]-[328]:

326.    The Court cannot make a finding one way or the other about what the Committee members did, or did not do, with the papers before them. Likewise, there is an insufficient evidentiary basis to accept the applicants’ submission that because the resolution occurred before the Information paper was tabled, none of the Committee members had read the Information paper, and none of them took it into account in deciding how to vote on the resolution, and therefore in forming the requisite state of satisfaction for the purposes of s 19(5) of the Land Rights Act.

327.    The applicants have the burden of proving the CLC Committee did not form the requisite state of satisfaction under s 19(5). They have the burden of proving what information was or was not considered by the Committee in forming that state of satisfaction.

328.    They have failed to prove on the balance of probabilities that the Committee members did not read or consider both Ms Campbell’s statement and Mr Gosford’s Information paper. That does not mean, as I have noted above, that I accept the CLC submissions that I can infer they did read all the papers. The state of the evidence precludes a finding one way or the other. However given the burden lies with the applicants, they have not proved the negative fact they sought to establish.

46    At J[342], after emphasising the paucity of evidence about whether any particular process under s 77A had been applied, the primary judge inferred that traditional Arrernte law and custom required decisions about the impugned leases to be made in accordance with that law and custom. Accordingly, the Committee had to be satisfied that a decision-making process in accordance with that law and custom had occurred and resulted in the consent of Amoonguna traditional owners, as a group. Her Honour stated that there was a “role” for s 77A in the formation of the state of satisfaction under s 19(5). She added as J[343] that:

343.    …On one view at least, the effect of s 77A on s 19(5) is that the CLC needs to be satisfied the decision was taken in accordance with Aboriginal tradition. If so satisfied, s 77A(a) deems consent as a group to have been given. That is a further difficulty for the applicants’ case.

47    Her Honour concluded at J[347] that she rejected the submission that the direction to grant the leases was given simply on the “say-so” of Mr Gosford or Ms Wilmot. Rather, her Honour inferred that the Committee accepted what it had been told about the agreement of the Amoonguna traditional owners, as a group, on the basis that the decision was made under Arrernte law. Although it was unknown how much inquiry and discussion occurred on these matters amongst the Committee members, the primary judge proceeded on the basis that the Committee was able to use its knowledge and expertise to determine the issues before it (see J[347]).

48    It is desirable to set out J[348] and J[349] as they contain central parts of the primary judge’s reasoning:

348.    The applicants have not proven the decisions were taken without genuine thought or consideration. To adopt the language of Bromberg J, they have not proven there was an absence of active intellectual consideration by the CLC Committee, or a failure by the CLC Committee members to apply their own minds to whether the Amoonguna traditional owners, as a group, consented to the impugned leases. The applicants could have asked, but did not, for reasons for the CLC Committee’s decision to give a direction to the AALT. They could have called members of the CLC Committee to give evidence and explain why they reached their decision. They did not. There is simply no evidentiary basis on which the Court can infer there was no thought, no analysis, no consideration or no discussion by the CLC Committee members.

349.    It is to be recalled that each of the CLC Committee members is indigenous, and representative of CLC regions, including a region covering Amoonguna. These people are answerable to their communities and constituencies. They can be taken to understand how traditional decision-making processes work, and how group decision-making processes amongst Aboriginal people are generally conducted and concluded. It can be inferred they will all have experienced such processes in their own communities. They can be taken to understand hierarchies and seniorities within traditional Aboriginal law and custom. They may be likely to know personally some, or many, of the individuals involved in traditional decision-making processes. They may have some familiarity with the traditional law and custom that governs the decision-making they are assessing. Indeed they may be related or connected to some of the traditional owners who made the decision. That is part of why the Land Rights Act insists, in its scheme, that Aboriginal people constitute the CLC.

49    For these reasons, ground 1 of the judicial review application was rejected. The primary judge noted at J[350] that the ground also needed to have been differently formulated to take account of the deeming effect of s 77A.

50    As to that part of the challenge to the lawfulness of the Committee’s satisfaction under s 19(5)(a) which related to the allegedly inaccurate or incomplete information provided to the Committee (ground 2 below), the primary judge summarised the relevant parts of Ms Campbell’s and Mr Gosford’s papers. The essence of her Honour’s reasons for rejecting ground 2 of the judicial review application is at J[364] (emphasis in original):

364.    I am not prepared to find the information provided to the CLC Committee was so deficient as to cause its formation of satisfaction to miscarry, or to be formed otherwise than in accordance with law. Unless put on notice by particular facts or circumstances, in my opinion a decision-maker in the position of the members of the CLC Committee is entitled to rely upon officers and employees of the CLC to provide information about traditional owner consent, including providing their own report. What Mr Gosford and Ms Campbell reported could be characterised in different ways. The applicants, consistently with their contentions, sought to characterise it as the opinions or assertions of Mr Gosford and Ms Campbell. I consider the better characterisation is that each reported what they were told, and what they observed.

51    It is relevant to also note J[373]:

373.    In the present proceeding, the applicants have not proven that the information provided to the CLC Committee was wrong or untrue in any material particular. They have not proven that the CLC Committee members were unaware of dissent and disagreement with the traditional owner community at Amoonguna. It is not the case that there was no evidence for the matters set out in the agenda papers. Rather, the details about who attended the 12 October 2016 meeting, who did not, the identities of the senior and less senior traditional owners and what their individual views were, were absent from the briefing papers. In the circumstance of a committee such as this constituted by local Aboriginal people, including representatives for the region of Amoonguna, and in the absence of evidence or reasons from those Committee members, the applicants have not proven that what was in Mr Gosford’s paper, and Ms Campbell’s paper, was all the available information. They have not proven there was no discussion. The Committee’s reasons for forming the state of satisfaction about traditional owner consent as a group remain unknown. I do not consider that the formation of a lawful state of satisfaction under s 19(5) necessarily requires written information at the level of detail suggested by the applicants. I do not consider in the present circumstances that the Committee was unable to be lawfully satisfied of traditional owner consent, as a group, unless it was expressly told in writing that Ms Ellis and those who supported her position did not agree, that Mr Oliver was absent, and that Ms Ross was absent. In fact, the Court does not know, one way or the other, whether some of these facts might indeed have been known to one or more CLC Committee members. That is an illustration of the failure to discharge the burden of proof. Finally, as I have noted above, the applicants have not proven on the balance of probabilities that what Mr Gosford and Mr Alice said (and were told) about the position of Mr Oliver and Ms Ross, on 12 October 2016, was wrong or untrue, if this formed part of the basis of the reports conveyed by Ms Campbell and Mr Gosford to the CLC Committee.

52    Her Honour’s reasons for rejecting both aspects of the complaints of procedural unfairness may be summarised as follows (grounds 3 and 4 below). As to the complaint that there was procedural unfairness because of the matters summarised in [63] and [64] below, her Honour did not determine whether or not the then applicants were owed procedural fairness. This was because her Honour found that there was, in any event, no procedural unfairness in what occurred having regard to the nature of the decision-making processes being undertaken. The 12 October 2016 meeting was not a “hearing” on behalf of the Committee but rather was a process which was designed to give autonomy to traditional owners in their decision-making, with reference to the two limbs of s 19(5)(a). The meeting was not an opportunity to be heard as part of a wider decision-making process and no statutory power was being exercised at that time. Instead, the 12 October meeting was the attainment of “a precondition” to any subsequent exercise of power by the Committee. Her Honour emphasised at J[376] that the precondition was the consent by the group.

53    Her Honour explained at J[378] why Jeffs v New Zealand Dairy Production Marketing Board [1967] 1 AC 551 (Jeffs) was distinguishable.

54    As to the second aspect of the procedural fairness complaint, i.e. the failure to provide Ms Marie Ellis with full copies of the Northern Territory leases as requested by her at the Chifley Hotel meeting, her Honour explained why there was no denial of procedural fairness:

(a)    the transcript indicated that there was a “clear willingness” by CLC staff at the Chifley Hotel meeting to tell traditional owners whatever they wished to know about the leases;

(b)    in circumstances where there was a written presentation to traditional owners about the core lease terms, those present had a chance to ask questions and the Chifley Hotel meeting was a follow-up meeting to the earlier September meeting, there was no evidence that the actual terms of the leases were of any material concern to the traditional owners as a group;

(c)    nor was it apparent why the precise terms were of concern to Ms Ellis and why she needed to review their detail;

(d)    Ms Ellis was “implacably opposed to the grant of the impugned leases”, and it was difficult to see what it was about the detailed drafting that might have been material to the group’s, or indeed to her own decision; and

(e)    there was no evidence that any other traditional owner needed to see the leases to make up her or his mind, or to understand the proposal.

55    Ground 5 below related to the then applicants’ argument that there had been a failure by the Committee to consider relevant material. The primary judge said at J[396] that this ground depended upon the correctness of the then applicants’ characterisation of traditional owner consent “as a relevant consideration in the exercise of the discretionary power to direct a Land Trust to grant an estate or interest in land”. Her Honour repeated why she did not accept this characterisation. The consent of traditional owners, as a group, is a precondition to the exercise of a power of the statutory power to issue a direction. Accordingly, her Honour said at J[397] that a ground based on relevant considerations arguments must fail.

56    Significantly, however, her Honour’s reasons for rejecting this ground did not stop there. Her Honour then proceeded to identify several other reasons why it should be rejected, namely:

(a)    while Mr Bagshaw’s report was due fairly shortly after the 12 October 2016 meeting, there was no evidence that Ms Wilmot’s 2012 report concerning the composition of the traditional owner group Amoonguna was inaccurate as at October 2016 and it was also relevant that the then applicants sought to rely upon Ms Wilmot’s report in some other grounds of judicial review;

(b)    Mr Bagshaw was not called as a witness and there was no suggestion that if he did finalise a report (and no report was adduced in evidence), he reached conclusions which materially differed from the conclusions reached by Ms Wilmot in October 2016; and

(c)    in any event, the primary judge was disinclined to accept that in 2016 or 2018 the Court should find that an anthropological opinion was material or critical to understanding the composition of a group of traditional owners in circumstances where that function is conferred on a body comprised of Indigenous people.

57    Her Honour then proceeded at J[401]ff to identify some confusion in the then applicants’ contentions and their failure to appreciate the distinction between a relevant consideration argument (as in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 (Peko-Wallsend)) and a failure to deal with material or information actually or constructively before the decision-maker. This involved a detailed analysis by her Honour of authorities such as Peko-Wallsend, Videto v Minister for Immigration and Ethnic Affairs [1985] FCA 449; 8 FCR 167 (Videto) and Buchwald v Minister for Immigration and Border Projection [2016] FCA 101; 242 FCR 65 (Buchwald). As to the complaint of legal unreasonableness (ground 6 below), the primary judge said at J[407] that the evidence was “problematic”. Her Honour noted that a key aspect of the complaint of legal unreasonableness was that the brief to Mr Bagshaw partly responded to Ms Ellis’ assertions as to who needed to be consulted on any decision about Amoonguna land and whose agreement was required. The then applicants contended that the Committee acted unreasonably in not postponing its decision until the Bagshaw report was completed and reviewed.

58    Against that background, her Honour summarised the evidence and concluded at J[415] that the then applicants said little about what might have occurred had the Committee elected to wait until Mr Bagshaw produced his report. The primary judge contrasted this state of affairs with the approach in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (Li) and, in particular, what was said there at [83]. Her Honour stated at J[417] that this paragraph from the plurality’s judgment in Li revealed that, in finding that the refusal of the Tribunal there to adjourn a review was legally unreasonable, the plurality looked to see what the Tribunal knew about the prospects of the second skills assessment being different from the (unsuccessful) first one and that this “kind of assessment is an integral part of evaluating the justification for the exercise of power”.

59    Her Honour stated at J[418] that there was no evidence on which findings could be made about what the Committee knew or should have known about the likely outcome of the Bagshaw report, so as to measure the reasonableness or otherwise of it proceeding to make a decision. Significantly, her Honour then gave two additional reasons for rejecting the legal unreasonableness contention:

(a)    the Committee did not exercise any discretionary power adversely to the then applicants in the sense of refusing to postpone its decision. That was because there was no request made to it to defer its decision until the Bagshaw report was available; and

(b)    a related matter was that there was no evidence that the Committee members even knew about the Bagshaw report or what it might contain.

60    Her Honour rejected the contention, based on what Gibbs CJ said in Peko-Wallsend at [31], that the Committee should have constructive knowledge of the Bagshaw briefing. Her Honour rejected the analogy on the basis that the then applicants failed to adduce any evidence that any members of the Committee knew about the Bagshaw retainer or its subject matter, with the consequence that there was no basis to suggest that the Committee was not in a position to determine the appropriateness of making a decision at the 19 October 2016 meeting because of the outstanding Bagshaw report.

61    Finally, the primary judge concluded at J[421] that all six of the grounds of judicial review failed and that, in the case of many of them, this was because of an insufficient evidentiary basis.

The grounds of appeal

62    The appellants raised no less than 20 separate grounds of appeal in their amended notice of appeal, many of which involved multiple particulars and effectively raised additional grounds of appeal. It is as well to set out those grounds in full in order to avoid any suggestion of misdescription in a mere summary (emphasis in original):

Fact-finding grounds

1.    The learned trial judge applied an erroneously-high standard of proof, including in that:

a.    the standard required the Appellants to disprove speculative matters not raised in the evidence, and about which witnesses were not challenged (e.g., at [287]–[288]);

b.    the standard required the Appellants to prove that facts “necessarily” existed, rather than that, on the balance of probabilities, they existed (e.g., at [357]);

c.    the standard contemplated, in a way similar to the criminal standard, that if there were reasonable hypotheses consistent with the First Respondent having not erred, then the Appellants had failed to prove their case (e.g., at [288]–[289], [347], [356], [357], [373]);

d.    the standard contemplated that, if neither party led evidence of a particular kind in relation to a factual issue then, despite that evidence of other kinds existed in relation to that factual issue, the Appellants had not shifted their onus (e.g., at [369]);

e.    the standard contemplated that it was necessary for the Court to “know” particular facts from direct evidence, rather than relying on inferences (e.g., at [373]);

f.    the learned trial judge failed to weigh the evidence according to the proof which it was in the power of the Appellants to produce and in the power of the First Respondent to contradict, especially in relation to the proof of negative propositions.

2.    The learned trial judge erred by failing to apply the principle enunciated in Jones v Dunkel (1959) 101 CLR 298, in particular in making findings as to the following facts:

a.    whether the members of the Executive Committee of the First Respondent (“Committee”) read all of the papers provided to them for the purpose of the 19 October 2016 meeting prior to making Resolution No. EX2016.07.170 (e.g., at [307]–[328] and particularly at [328]); and

b.    whether the Committee acted on the say-so of Mr Gosford rather than forming its own view in relation to the matters about which it was required to be satisfied (e.g., at [347]–[348]); and

c.    whether there was information available to the Committee, or whether it acted on the basis of information, that was not contained in Ms Campbell’s report and/or Mr Gosford’s report (e.g., at [356], [369], and [373]).

3.    The learned trial judge erred in taking into account in the fact-finding process regarding the Committee’s decision-making process, as tending against the facts for which the Appellants contended, the fact that the Appellants did not call members of the Committee to give evidence, where:

a.    the Appellants were not in a position to, and would not have been expected to, call members of the Committee; and

b.    if any party was in a position to call members of the Committee, and would have been expected to do so, it was the First Respondent; and

c.    the witnesses whom the First Respondent did call to give evidence concerning the Committee’s processes did not give evidence concerning those matters.

4.    The learned trial judge erred in making findings in the absence of any evidence, or by taking judicial notice of matters of which it could not lawfully be taken:

a.    in relation to the characteristics of members of the Committee (e.g., at [349]); and

b.    in relation to whether the membership of the Third Appellant was “notorious” to Committee members (e.g., at [359]).

5.    The learned trial judge erred, in the presence of evidence on particular issues, in deciding those issues on the basis of the onus of proof rather than by making findings (including at [288], [289], [328], [365], [369], and [373]), when such a course is properly to be seen as exceptional.

6.    The learned trial judge erred in failing to find (consistently with [37] of the First Respondent’s submissions and consistently with Telstra v Hurstville Council (2002) 118 FCR 198) that the material brought into existence by CLC officers for the Committee, and the resolution of the Committee in response, evidenced what the Committee considered and reasoned in reaching the requisite state of satisfaction.

Grounds relating to section 77A Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)

7.    The learned trial judge erred in placing determinative weight on the absence of evidence and submissions concerning section 77A of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (“ALRA”) when:

a.    no party submitted that section 77A was relevant, and properly understood it was not relevant; and

b.    the Appellants were not afforded an opportunity of making submissions in relation to whether section 77A should be treated in the way that the learned trial judge ultimately treated it.

8.    The learned trial judge erred in treating section 77A of the ALRA as establishing an exhaustive binary code in relation to the decision-making processes of the traditional Aboriginal owners of Amoonguna.

Grounds relating to Grounds 1 and 2 of the Second Further Amended Originating Application

9.    Having rightly construed section 19(5) of the ALRA as vesting the evaluative process in respect of section 19(5) in the indigenous members of the First Respondent (or, here, its delegate) (at [262] and [345]), the learned primary judge erred in holding that it was for officers of the First Respondent to report to the Committee what the traditional Aboriginal owners, as a group, had decided (at [368]).

10.    Having rightly held that, if the Committee was to rely upon others’ summaries or syntheses of what was said by traditional Aboriginal owners in relation to the matters in section 19(5) about which the Committee was required to be satisfied, it was necessary that such summaries or syntheses be “in all material aspects accurate” (cf. [345]) the learned trial judge erred:

a.    in failing to find that the syntheses prepared by Ms Campbell and/or Mr Gosford were not “in all material aspects accurate” (cf. [345]), and therefore in failing to find that the Committee’s formation of the required states of satisfaction miscarried; and

b.    in rejecting the Appellants’ submission that any report to the Committee was required to be in all material aspects accurate and complete, on the basis that that submission entailed a “detailed and prescriptive process” (at [367]).

11.    The learned trial judge erred in failing to find that the information before the Committee was incomplete in premises where her Honour found that the report of Ms Wilmot dated 2012 was in the possession of the First Respondent and was supposed to guide its approach to consultation and decision-making (at [245]), and where it was conceded that that report was not before the Committee at the time it made its decision (at [245]).

Grounds relating to Grounds 3 and 4 of the Second Further Amended Originating Application

12.    The learned trial judge erred in failing to find that the Appellants had been denied procedural fairness, in particular in that:

a.    it was erroneous to draw a distinction (at [380]) between the Committee “hear[ing] from persons affected and then factor[ing] what it hears into a decision,” and the Committee “be[ing] satisfied, one way or the other, whether the traditional owners have consented, as a group,” in circumstances where the representations made by traditional Aboriginal owners at the meeting convened for the purpose of hearing from them directly go to whether the Committee could be satisfied whether the traditional owners have consented, as a group; and

b.    it was erroneous to hold that the meeting occurring on 12 October 2016 was “part of the process envisaged by s 77A of the [ALRA]” (at [376]) where no party submitted that section 77A of the ALRA was engaged, and section 77A of the ALRA was not engaged.

13.    The learned trial judge erred in failing to find that the First Appellant was denied procedural fairness in circumstances where she had asked for copies of the impugned leases to be provided to her and they were not provided to her, and in particular the primary judge erred:

a.    in finding that “it [was] not apparent on the evidence that the actual clauses of the leases as expressed in written form were of any material concern to the traditional owners as a group” (at [393]) when:

i.    the unchallenged evidence was that the First Appellant, a traditional Aboriginal owner, had asked to see them; and

ii.    it was not suggested to the First Appellant that the actual lease clauses were not of material concern to her.

b.    in finding that “it [was] not apparent of what concern they were to [the First Appellant]” (at [393]) when:

i.    the First Appellant gave evidence as to why the actual lease clauses were of concern to her; and

ii.    it was not suggested to the First Appellant that the actual lease clauses were not of concern to her.

c.    in finding that provision of the impugned leases would not have made a difference because the First Appellant was “implacably opposed” to the grant of the impugned leases, and because there was “ample evidence her mind was made up” (at [393]) when neither proposition was put to the First Appellant and neither finding was open on the evidence.

Grounds relating to Ground 5 of the Second Further Amended Originating Application

14.    The learned trial judge erred by characterising the Appellants’ Ground 5 as a “relevant considerations” ground, when that is not how the Ground was put, and relatedly erred in failing to deal with Ground 5 as it was in fact put.

15.    The learned trial judge erred in dealing with the report of Mr Bagshaw in relation to the Appellants’ Ground 5 when that report related to the Appellants’ Ground 6.

16.    The learned trial judge erred in failing to find that Ground 5 had been established in light of the First Respondent’s concession that the report of Ms Wilmot dated 2012, which (it was found) was supposed to guide the Committee’s approach to consultation and decision-making, was not before the Committee at the time it made its decision.

17.    Having rightly found that the evaluative process required by section 19(5) of the ALRA was vested in the Committee, the learned trial judge erred in failing to act upon a concession by the First Respondent that, unless it was open to the First Respondent to have its officers to advise the Committee whether consent had been given, the Appellants’ Ground 5 must succeed.

Grounds relating to Ground 6 of the Second Further Amended Originating Application

18.    The learned trial judge erred by misapplying the passage from Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 that her Honour cited at [416].

19.    The learned trial judge erred in failing to address the burden of the Appellants’ submission that the Committee had constructive knowledge of the pendency of the Bagshaw report.

20.    Having rightly found that the evaluative process required by section 19(5) of the ALRA was vested in the Committee, the learned trial judge erred in failing to act upon a concession by the First Respondent that, unless it was open to the First Respondent to rely on the advice of its officers, the Appellants’ Ground 6 must succeed.

The parties’ submissions on the appeal summarised

(a) The appellants’ submissions

(i) Grounds 1-6 (fact-finding grounds)

63    The appellants emphasised that, having lawfully been appointed as the CLC’s delegate, the Committee itself had to form the requisite state of satisfaction under s 19(5), and it could not sub-delegate this power to another person. They submitted that the question whether the traditional Aboriginal owners had, as a group, consented to the grant of the impugned leases and licences at or before the Chifley Hotel meeting was a “contestable question”. It was insufficient that Mr Gosford stated that such consent had been obtained. Moreover, the appellants contended that the papers given to the Committee so that it could make an evaluative assessment of the matters required by s 19(5) were materially inaccurate or deficient. The Campbell paper was inadequate because it did not include any information which identified the relevant traditional Aboriginal owners at the meeting, described their decision-making process or what had even occurred at that meeting (which may be unsurprising because Ms Campbell did not attend the meeting).

64    As to Mr Gosford’s paper, the appellants said that it was inaccurate or deficient because:

(a)    it did not identify who were the traditional Aboriginal owners present at the meeting, nor which of them was absent (i.e. Ms Ross, Mr Oliver and Mr Neal) or that Mr Williams had left the meeting before any decision was made as a group;

(b)    it did not identify the traditional Aboriginal owners who were described as “could not be present”, yet the paper recorded that they had told CLC staff that they “agreed that the senior male traditional Aboriginal owners were the right people to make decisions” (without also identifying who those senior males were);

(c)    the only evidence before the primary judge showed that Mr Gosford had spoken with Mr Oliver, and Ms Wilmot had spoken with Ms Teresa Alice and there was no evidence that any CLC staff had spoken with any of Ms Ross, Mr Neal or Mr Williams;

(d)    it did not identify that Ms Marie Ellis had stated that Mr Ross, Mr Oliver and Mr Neal should be present at the meeting to speak for themselves, or that she had a “different story” as referred to above;

(e)    it did not identify who were the “senior traditional owners” who were recorded as having advised CLC staff that they consented to the leases and licences, nor to the fact that there was only one such person, namely Mr Alice; and

(f)    it did not identify that Ms Marie Ellis and others dissented from Mr Alice’s position (noting, however, that the primary judge found that there were differences between senior traditional owners (J[277])).

65    The appellants did not dispute the primary judge’s finding that the Committee could rely upon an accurate summary of information in making the requisite assessment under s 19(5). They complained, however, that the primary judge erred in rejecting their challenge on the basis that the appellants failed to discharge their onus by proving a negative fact, namely that the Committee had not considered information additional to that contained in the Wynniatt material, about which there was no evidence.

66    The appellants contended that this finding was erroneous because:

(a)    it was inconsistent with the parties’ common factual position; and

(b)    it was contrary to established principles from cases such as Jones v Dunkel [1959] HCA 8; 101 CLR 298 (Jones v Dunkel) and Australian Securities and Investments Commission v Hellicar [2012] HCA 17; 247 CLR 345 (Hellicar).

67    On the first of those matters, the appellants claimed that the trial was conducted on a common factual position that the Wynniatt material was the entirety of the material before the Committee when it made its decision. They said that it was procedurally unfair for the primary judge to determine the relevant issue as she did and in circumstances where the respondents did not allege that there was, or might have been, other information considered by the Committee which had not been adduced in evidence.

68    As to the second matter, the appellants contended that the primary judge erred in not drawing an adverse inference in their favour on the question whether the Committee considered additional material. The appellants claimed that the “rule” in Jones v Dunkel “is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party – especially where it is the party who is uncalled. It may also permit the court to draw with greater confidence inferences unfavourable to the party, if the witness appears to be in a position to cast light on whether an inference should be drawn”. The appellants submitted that it was within the CLC’s power to call evidence on the issue whether the Committee considered additional material and that the appropriate inference was that it had not. Instead of drawing “an orthodox Jones v Dunkel inference” from the CLC’s failure to call any witness in its camp to establish that other relevant material had been considered, the primary judge wrongly drew inferences which were unfavourable to the appellants.

69    Furthermore, the appellants submitted that while there was evidence which suggested that the Committee considered the Campbell paper, the evidence concerning the Gosford paper suggested that it was not considered. This was because of the timing of its provision to the Committee, the fact that the minutes record decisions were made after the Committee discussed the Campbell paper (but before the Gosford paper was discussed) and the absence of any evidence to the contrary from any of the CLC witnesses.

70    The appellants also submitted that the evidence suggested that the Committee acted on the “say-so” of its employees, namely Ms Campbell and, perhaps, Mr Gosford, rather than forming its own view about the s 19(5) matters.

71    In sum, the appellants complained that the primary judge imposed on them an “erroneously-high standard of proof” and that, on various questions of fact, her Honour decided issues based on onus rather than making findings, such as that the appellants had not proved the negative fact that there was no material before the Committee beyond the Wynniatt material and whether Mr Alice and Mr Gosford accurately conveyed Mr Oliver’s position at the Chifley Hotel meeting to the Committee. Her Honour was also criticised for drawing a positive inference that there was further material, beyond the Wynniatt material, which was considered by the Committee by finding at J[349] that the Committee could be “taken” to have knowledge and familiarity with Aboriginal communities and decision-making processes (reference was also made to J[373]).

(ii) Grounds 7-8

72    These grounds concern s 77A of the ALR Act (the terms of which are set out in [25] above). The appellants emphasised that they placed no reliance on this provision below, nor did the CLC, because their common position was that if the Committee had been properly satisfied of either limb in s 77A(a) or (b), it could have been satisfied of the s 19(5)(a) condition. The appellants contended that the primary judge correctly found that the Committee’s attention was not drawn to the terms of s 77A and, on that reasoning alone, the appellants ought to have succeeded if this was “core information” as found by the primary judge at J[304]. Moreover, the appellants contended that the evidence of Ms Marie Ellis, which was accepted by the primary judge, showed that the process at the Chifley Hotel meeting did not comply with traditional decision-making processes.

(iii) Grounds 9-11

73    These grounds appear to overlap substantially with grounds 1-6 and the appellants substantially repeated their earlier submissions. They added, however, that even if it were assumed that the Gosford paper was considered by the Committee before it decided to give the directions, the primary judge erred in finding that the Gosford paper was in all material aspects accurate, such that the Committee was not misled (see J[373]). The appellants criticised the primary judge’s description at J[373] of the “list of deficiencies”. They urged this Court to find that the Committee fell into error by not being told and therefore failing to consider the following “critical evidence”:

(a)    the purported consent was voiced by one person only (i.e. Mr Alice) and other senior traditional owners differed from him;

(b)    Ms Ross (a senior Apmereke-artweye) and Messrs Oliver and Williams (senior Kwertengerle) were absent; and

(c)    another traditional owner (Ms Marie Ellis) had stated that Mr Ross and Messrs Oliver and Neal should be present for any decision to be valid and that she understood that Mr Ross and Mr Neal had not consented.

74    Finally, the appellants contended that the primary judge erred in not bringing to account her finding that Ms Wilmot’s 2012 report was not before the Committee, notwithstanding that she viewed that report as guiding the CLC’s approach to consultation and decision-making within the Amoonguna community (see J[245]).

(iv) Grounds 12-13

75    The first of these grounds claims that the primary judge erred in not finding that the appellants were denied procedural fairness. The claim has the following two aspects:

(a)    a claim that the primary judge erred at J[380] in distinguishing between the Committee hearing from persons affected and then factoring that into its decision and, on the other hand, the Committee being satisfied or not as to whether the traditional owners had consented as a group; and

(b)    a claim that the primary judge erred at J[376]-[377] in holding that the 12 October 2016 meeting did not occur “in the course of any exercise of power, because the occasion for the exercise of power had not arisen”, and hence there was no need “to convey back to the CLC Committee ‘all of the material information’ about those who dissented (and why they dissented), nor about those senior people who were absent”. The appellants submitted that these distinctions are erroneous and that the Committee must discharge its function in a way that is procedurally fair, which will involve hearing from affected persons, which did not occur here.

76    The appellants contended that they (and presumably all traditional owners) were owed procedural fairness because their “rights or interests” were at stake (citing, inter alia, Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 at [11]-[15]). The appellants submitted that the procedures or mechanisms which the Committee put in place pursuant to which it was to receive information of the facts that would enable it to carry out the required assessment under s 19(5)(a) were deficient in that the information provided under those procedures was inaccurate or incomplete. The appellants also criticised the primary judge for not applying the reasoning in Jeffs.

77    As to ground 13, the appellants contended that the primary judge erred in not finding that Ms Marie Ellis had been denied procedural fairness when she was not provided with full copies of the relevant leases. They relied upon Kenny J’s judgment in Gondarra at [91]. The appellants also criticised the primary judge’s reasons for finding at J[392] that there was no denial of procedural fairness because:

(a)    there was no evidence that the terms of the actual clauses of the leases were of any material concern to the traditional owners as a group;

(b)    Ms Ellis did not explain why she wanted to see the document;

(c)    it was difficult to see what in the detailed clauses may have been material; and

(d)    in any event, Ms Ellis’s mind was made up because she was “implacably opposed” to the non-ICL leases.

78    The appellants contended that these findings only went to the issue whether the procedural unfairness could have affected the outcome and were not relevant to whether or not there was procedural unfairness. Moreover, they submitted that each of the four findings was unsupported by probative evidence.

(v) Grounds 14-17

79    These grounds relate to the primary judge’s rejection of ground 5 of the judicial review application below. The appellants contended that the primary judge misunderstood that judicial review ground by addressing it as a failure to take into account relevant considerations, as opposed to the way in which it was put, namely as a failure to consider relevant material (relying upon, inter alia, Minister for Immigration and Border Protection v SZRKT [2013] FCA 317; 212 FCR 99). The primary judge’s misunderstanding was said to be revealed at J[406], J[398] and J[399], and in her Honour’s consideration of whether there were differences between Mr Bagshaw’s anthropology report (which had not been received by the CLC at the time of the Committee’s decision), as opposed to Ms Wilmot’s 2012 report. The appellants complained that these matters had nothing to do with ground 5 as advanced below. The appellants also submitted that, on the CLC’s own concession, ground 5 should have succeeded on the basis that it was not open to the Committee simply to rely upon a synthesis and summary of the outcome of the meeting and advice as to whether consent as a group was given.

(vi) Grounds 18-20

80    These grounds relate to the primary judge’s rejection of the appellants’ contention below that it was legally unreasonable for the Committee not to delay making a decision pending receipt of Mr Bagshaw’s report on traditional ownership of Amoonguna, which was imminent. In particular, the appellants were critical of the primary judge’s reasons at J[417] for distinguishing Li. They contended that the primary judge erred in stating that, in finding that the failure to adjourn Li was legally unreasonable, the High Court relied on “what the Tribunal knew about the prospects of the second skills assessment being different from the (unsuccessful) first one”. The appellants said that this incorrectly summarised Li; the question whether a decision is legally unreasonable falls to be determined as at the time that the decision is made and evidence as to subsequent events, which are unknown to the decision-maker at the relevant time, cannot affect the analysis. The appellants contended that even if the Committee members did not actually know about the Bagshaw brief (including that a report was required within 15 days, as indicated in information which was in the CLC’s files), the Committee had constructive knowledge of it, relying upon Videto at 178-179 per Toohey J and Buchwald at [62]-[66] per Bromberg J.

81    The appellants’ submissions in reply on the judicial review grounds may be summarised as follows. First, the appellants acknowledged that Committee members were able to use their own knowledge and expertise but they emphasised that there was no evidence that any individual member of the Committee (let alone the Committee as a group) in fact had any particular relevant knowledge. It was a matter for the CLC to adduce evidence on this issue and, because they did not, Jones v Dunkel applied.

82    Secondly, while the appellants accepted that the Committee may rely on staff summaries, that is the case only if such summaries are in all material respects accurate so as to avoid the Committee being misled.

83    Thirdly, the appellants said that the judicial review challenge was not directed to the CLC’s anthropologists’ evidence, but rather addressed the Committee’s decision-making under s 19.

84    As to grounds 1-6, the appellants reiterated their submission (not for the first time) that in circumstances where the CLC read the material which was annexed to the Wynniatt affidavit, an inference could necessarily be drawn that the Committee did not consider things which were not annexed to that affidavit. The CLC failed to explain or contradict that inference and Jones v Dunkel applied.

85    As to grounds 7-8, the appellants claimed that s 77A was given “determinative weight” by the primary judge, referring to J[343] and J[350].

86    As to grounds 9-11, the appellants stated that their complaint was one of principle, namely that unless the decision-maker has evidence of matters such as identity of traditional owners, decision-making process and what occurred at a consultation meeting, it cannot attain the requisite satisfaction under s 19(5)(a), except by reliance on assertions made by its staff, and that is not a lawful process under the ALR Act.

87    Moreover, the appellants submitted that because Ms Wilmot’s 2012 memorandum did contain information relating to these matters and it was not given to the Committee, the Committee “was impaired from conducting its evaluative process”.

88    As to ground 12, the appellants submitted that the ALR Act did not specify the procedures to be adopted in the interests of fairness and that it is silent as to procedure. They submitted that there was no basis to limit procedural fairness obligations in the manner contended for by CLC. Moreover, the appellants confirmed that although their position is that each person whose interests are affected is owed procedural fairness, it would make no difference to their case if the correct position was that the obligation was owed to traditional owners as a group. That is because there is “the requisite unfairness” if the Committee received a misleading account of the meeting at which the group of traditional owners responded to lease proposals.

89    As to ground 13, the appellants clarified that their reliance on Gondarra at [91] is that the process involves practical injustice if a person who seeks information about a proposal is not given that information.

90    As to grounds 14-17, the appellants did not accept that they were responsible for the primary judge having misunderstood their argument as a “relevant considerations” ground. They added that this Court should infer that, by now claiming that the appellants shared responsibility for the misunderstanding, the CLC had conceded the error.

91    As to grounds 18-20, the appellants contended that the Bagshaw report was directly relevant to the Committee’s tasks because Mr Bagshaw had been briefed by the CLC to review the traditional ownership and provide advice on who is a traditional owner, as well as advise on traditional decision-making. The appellants also denied that legal unreasonableness in respect of a failure to defer decision-making does not depend upon what was put by them to the Committee (citing no cases in support of that proposition).

(b) The CLC’s submissions

92    The CLC parties contended that the appellants’ case was based on a fundamentally flawed premise, namely that there were “complex and competing claims and evidence as to the group’s traditional decision-making process and outcome”. This was flawed because any differences were not about applicable custom, but rather concerned the place of ICL in seeking to represent the views of traditional Aboriginal owners.

93    The CLC parties emphasised that the focus of s 19(5)(a) is on the satisfaction that the traditional Aboriginal owners “as a group” consent to the proposed grants. This does not require the decision-maker to have knowledge or information at a prescriptive level of detail on matters such as the identities of individual members of the group, their levels of seniority, who was present or absent from the meeting or what was said because “all of those matters were dealt with within the group and merged in expression by the group of its consent”, as the primary judge held at J[366]-[368], [373] and [400]. By correctly focusing upon the critical issue of the group’s expression of consent, as a group, the CLC said that it was unnecessary for the primary judge to descend into the level of detail as contended by the appellants. It was also open to the primary judge to find that the Committee was entitled to rely upon what it was told by Mr Gosford as to his views concerning the group’s consent, noting that the Gosford paper set out the basis for Mr Gosford’s conclusion that the group had given its consent, as a group.

94    CLC also emphasised that the appellants do not challenge the primary judge’s findings at J[249]-[261], based on an acceptance by her Honour of the evidence of CLC’s anthropologists (Ms Wilmot and Mr Connelly) that the composition of the traditional owner group and their decision-making processes were well known and that disagreements per se did not prevent a consensus being reached under relevant traditions.

95    A third general point made by the CLC was that the appellants accepted below that it was not possible to find that the only material considered by the Committee was the Campbell paper in circumstances where the legislation enabled and expected that Committee members could rely on their own knowledge and expertise.

96    CLC submitted that these three general points were sufficient to dispose of all of the grounds of appeal, while also noting (correctly) the difficulties of reconciling all of the appellants’ submissions on the appeal with the grounds of appeal and grounds of judicial review below.

97    CLC made the following additional submissions in response to the multiple grounds of appeal.

(i) Grounds 1-6

98    CLC contended that these grounds are inconsistent with the way in which the appellants put their case below. In particular, it was submitted that the appellants had accepted that the Committee was able to use its own knowledge and expertise, having regard to the composition and expertise of a Land Council in a statutory scheme. This was relevant to the question whether the state of satisfaction reached by the Committee under s 19(5)(a) was one which no reasonable Land Council could have attained citing, inter alia, Foley v Padley (1984) 154 CLR 349 at 352-3 per Gibbs CJ, at 370 per Brennan J and at 375 per Dawson J.

99    CLC contended that the rule in Jones v Dunkel had no application here, in circumstances where the Committee members comprised Aboriginals drawn from the various regions, including Amoonguna (i.e. Mr Abbott). Accordingly, it was open to the appellants to call people such as Mr Abbott as their witness. Moreover, CLC contended that the appellants’ pleadings and submissions below did not raise an issue which had to be explained by CLC. That was because the case as presented below by the appellants was that the Committee had considered the agenda papers, but the papers were allegedly deficient. Also, in closing address, the appellants contended below that an inference should be drawn that the Committee had not discussed or considered the Gosford paper before making its decision, a contention which was considered and rejected by the primary judge at J[328]. CLC contended that there was insufficient evidence to establish the negative propositions now raised by the appellants. That is because, unlike a case such as Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352, the evidence here was that the Committee had before it two papers totalling 7 pages of text, which were provided in advance of the meeting and which were relevant to an agenda item scheduled to occur over 1.25 hours, and in circumstances where the minutes record that the second paper was noted and discussed. Accordingly, CLC submitted that the appellants, who carried the burden, led no evidence on these matters, thus there was no case to be answered and no occasion to draw any adverse inference.

(ii) Section 77A: Grounds 7-8

100    CLC contended that any error relating to s 77A would be immaterial because the primary judge did not place “determinative weight” on that provision. Moreover, it contended that s 77A was the subject of submissions. The appellants’ claim below that consent had not been given in accordance with applicable tradition was rejected by the primary judge because she accepted the evidence of the CLC’s anthropologists, Ms Wilmot and Mr Connelly (see J[249]-[261]).

(iii) Grounds 9-11

101    CLC contended that the appellants’ complaints under these grounds is inconsistent with the emphasis given in s 19(5)(a) to the requisite satisfaction being one which relates to a conclusion of consent “as a group”. This means that it was unnecessary for the Committee to descend into the prescriptive details regarding identities and traditional decision-making processes, as contended for by the appellants.

102    CLC contended that it was correct of the primary judge to proceed on the basis that the material before the Committee in the present case was not significantly different from that considered by Kenny J in Gondarra. As to the appellants’ complaint that Ms Wilmot’s November 2012 report was not before the Committee, CLC submitted that the appellants failed to identify why this omission caused the reports which were before the Committee to be misleading. In any event, CLC emphasised that Ms Wilmot had attended the 12 October 2016 meeting and that the reports to the Committee were not at variance with her 2012 report.

103    CLC defended the primary judge’s reasoning at J[231] and J[237] that the manner in which a group is to be consulted and the requisite state of satisfaction attained depends on the circumstances of the case. It is relevant in this context to take into account the composition, expertise and functions of a Land Council as a specialised and representative body (citing Gondarra at [86], [90], [122]-[125] per Kenny J). The appellants’ case was flawed because it seems to assume that the requisite state of satisfaction concerning consent cannot be attained unless all traditional Aboriginal owners were present at the one meeting and produced unanimous assent. This approach is inconsistent with the legislative scheme and also impracticable because it appears to contemplate the possibility that a single traditional Aboriginal owner could veto an outcome, contrary to tradition (see Que Noy v Northern Territory [2007] FCA 1888 at [28]-[38] per Mansfield J as affirmed in Foster v Que Noy [2008] FCAFC 56).

(iv) Procedural fairness: Ground 12

104    CLC defended the primary judge’s findings that, if there was a duty of procedural fairness, it had not been breached because the Committee was adequately informed of relevant matters by the papers before it. Moreover, CLC submitted that the primary judge was correct to distinguish Jeffs on the basis that it involved a very different statutory scheme. CLC submitted that the primary judge correctly concluded that the particular steps and practical content of procedural fairness in exercising a power under s 19 are contained in s 19(5), when read with the chapeau to s 23(3) concerning consultation. CLC submitted that there was no room to imply any wider and inviolable duty to afford procedural fairness outside of that which is explicitly prescribed in the ALR Act.

105    CLC emphasised the importance of the fact that the relevant procedure involves group consultation and the underlying process is not adversarial.

(v) Procedural fairness: Ground 13

106    CLC submitted that the appellants’ reliance on Kenny J’s observations in Gondarra at [91] is misguided given that they were directed to the duty of a Land Council to consult under s 23(3) and not to any obligation of procedural fairness. The appellants did not complain of any breach of the duty under s 23(3) to consult and, moreover, Ms Marie Ellis is not an authorised representative of the owner group.

107    CLC did, however, point to Kenny J’s findings in Gondarra where her Honour held that the statutory duty to consult did not oblige the Land Council to provide a copy of the written contract and that, in any event, it was not adverse information. CLC submitted that the proposed leases were not “adverse material” and their essential terms were explained. Moreover, as to Ms Ellis’ request made at the meeting to see full copies of some material, CLC contended that the request did not relate to the lease instruments and concerned only the NT. CLC defended the primary judge’s finding that non-production of the leases had no bearing on Ms Ellis being heard because she had made up her mind.

(vi) Grounds 14-17

108    CLC said that these grounds must fail in the light of the primary judge’s findings that the identity of the traditional Aboriginal owners and principles relating to their membership were well-known to the CLC, including her Honour’s acceptance of the evidence of Ms Wilmot and Mr Connelly on these matters.

109    As to the appellants’ complaint that the primary judge erroneously addressed their argument as a “relevant considerations” ground, CLC said that this was partly of their own making having regard to the way in which they conducted their case below (noting, in particular that the appellants had expressly relied upon cases such as Peko-Wallsend).

110    In any event, the appellants’ complaint has no consequence in the light of the primary judge’s finding that an anthropological opinion was not critical to the statutory assessment because what mattered was “their own voices (if necessary, as reported by CLC officers)” as the primary source of information.

(vii) Grounds 18-20

111    CLC contended that, if a statutory power to defer be implied in the statutory scheme here, a contention of legal unreasonableness would involve “consideration of whether a refusal to so defer could have made a difference to the outcome having regard to the scope and purpose of the power and in the circumstances in which exercise of the power fell for consideration”, citing Li at [79]-[85] per Hayne, Kiefel and Bell JJ and at [122] per Gageler J.

112    In any event, CLC submitted that it was a necessary premise of the appellants’ case that there was uncertainty as to traditional Aboriginal ownership of the land which Mr Bagshaw’s report would supposedly resolve. CLC submitted that this premise was not made out. In any event, CLC emphasised that the appellants did not actively seek a deferral of the Committee’s decision pending receipt of Mr Bagshaw’s report.

(c) The NT’s submissions

113    Both the NT and IES adopted CLC’s submissions concerning the grounds of appeal which relate to CLC’s decision-making processes. They added that there was nothing unusual about the views of traditional owner groups having “ebbed and flowed” and being ultimately resolved by traditional owners themselves meeting privately and a senior representative then advising the outcome. That submission was supported by reference to litigation over the 40 year history of the ALR Act, as reflected in decisions such as Alderson, Ward v Northern Territory [2002] FCA 1477; 196 ALR 32 at [33]-[39] per Mansfield J, and Kerinaiua v Tiwi Land Council [2007] NTSC 40 per Southwood J.

114    The NT and IES also defended the primary judge’s finding that Ms Marie Ellis is not a senior traditional owner. The primary judge found at J[139] that Ms Ellis appeared to accept that to be the case. Accordingly, the NT and IES submitted that it was unremarkable that the Committee accepted the reports provided to it by CLC officers and then reached its own satisfaction that traditional Aboriginal owners (as a group) had consented to the grants.

Consideration and disposition of the appeal

(a) Relevant general principles of statutory construction

115    The plurality in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 91 ALJR 936 (SZTAL) (Kiefel CJ, Nettle and Gordon JJ) provided a helpful and succinct description of the contemporary approach to statutory construction at [14] (footnotes omitted):

14.    The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

116    The following observations of Gageler J in SZTAL at [37]-[39] are also important (footnotes omitted):

37.    … The task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility “if, and in so far as, it assists in fixing the meaning of the statutory text”.

38.    The constructional choice presented by a statutory text read in context is sometimes between one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so characterised. More commonly, the choice is from “a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural”, in which case the choice “turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies”.

39.    Integral to making such a choice is discernment of statutory purpose. The unqualified statutory instruction that, in interpreting a provision of a Commonwealth Act, “the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation” “is in that respect a particular statutory reflection of a general systemic principle”.

117    These general principles guide the task of statutory construction of relevant provisions of the ALR Act in this case, as the primary judge acknowledged at J[234]ff. It is desirable to say something further regarding the statutory scheme before addressing each of the many grounds of appeal.

(b) Key features of the statutory regime

118    The parties did not dispute the accuracy of the primary judge’s description of the objectives and scheme created by the ALR Act at J[220]-[233]. For convenience, that analysis (with which we respectfully agree), is as follows:

220.    There have now been many authorities, in this Court and in the High Court, which have described and analysed various aspects of the scheme for the grant of land to Indigenous people in the Northern Territory which the Land Rights Act establishes. It is not necessary to canvass those authorities in great detail, and I refer here only to aspects relevant to the determination of the issues in this proceeding.

221.    The genesis of the Land Rights Act is traced by Brennan J in his reasons of judgment in R v Toohey, Ex parte Meneling Station Pty Ltd [1982] HCA 69; 158 CLR 327 at 354-355, including the critical turning point of Blackburn J’s judgment in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 where the Court found it could not recognise rights held by Indigenous people in land as proprietary rights under Australian law. Brennan J describes the effect of the scheme as restoring areas of land within the Northern Territory to “Aboriginal control”: at 355. His Honour also describes the effect of s 19(5) in the following way (at 359):

The usufructuary rights of Aboriginals in respect of Aboriginal land, once acquired, might be overridden by the granting of a lease or licence by a Land Trust (s. 19(3)), or by a surrender of that land to the Crown (s. 19(4)), but any of those events requires the approval of the traditional Aboriginal owners, and of any Aboriginal community or group that might be affected thereby (s. 19(5)(a) and (b)). The Aboriginal people connected with a tract of country were thus made competent to use their country in a non-traditional way if and when an Aboriginal consensus to do so should be established.

222.    Justice Toohey, when Aboriginal Land Commissioner, described the objective of the Land Rights Act in the following terms (cited by French CJ in Wurridjal v Commonwealth [2009] HCA 2; 237 CLR 309 at [99]):

Essentially the object of the Act is to give standing, within the Anglo-Australian legal system, to a system of traditional ownership that has so far failed to gain recognition by the courts.

[Commonwealth, Aboriginal Land Commissioner, Yingawunarri (Old Top Springs) Mudbura Land Claim (1980), p 14 [70].]

223.    As the plurality noted in the Blue Mud Bay case (Northern Territory of Australia v Arnhem Land Aboriginal Land Trust [2008] HCA 29; 236 CLR 24) at [50], although the scheme differs in some ways from an interest usually recorded in a Torrens system as an estate in fee simple, the Land Rights Act uses the term “fee simple” in its description of the estate granted, and that use must be given effect.

224.    In Wurridjal at [18], French CJ described the role of a Land Trust under the Land Rights Act in the following way:

Land Trusts are bodies corporate, established by gazetted ministerial notice “to hold title to land in the Northern Territory for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of the land concerned”. They hold title to the land vested in them in accordance with the Act and exercise their powers as owners of the land for the benefit of the Aboriginals concerned (s 5). They can only act, in relation to the land, in accordance with directions given by the Land Council for the area (s 5(2)). They are not empowered to accept moneys due and owing to them or to give a valid discharge for such moneys, but moneys may be paid to the Land Council for the area (s 6).

(Footnote omitted.)

225.    At [20], French CJ described the power of Land Trusts to dispose of land vested in them as “conditional”, with a footnoted reference to ss 19, 19A and 20 of the Land Rights Act. The consent of traditional owners is not the only matter which conditions the Land Trust’s power of disposition: the Minister’s consent is also essential in some circumstances.

226.    At [22], having noted such a “conditional” disposition power, his Honour referred to the terms of s 23(3)(a) as imposing a prohibition on Land Councils:

A Land Council is not to take any action in connection with Land Trust land unless it is satisfied that the traditional Aboriginal owners understand the nature and purpose of the action and consent to it as a group (s 23(3)(a)).

227.    Although her Honour’s language was different, at [395] in Wurridjal, in discussing the legislative scheme of “control” established by the Land Rights Act, Crennan J described a Land Trust as having the power to dispose of an interest in Aboriginal land (such as a lease) “provided always that it had the requisite consent of the traditional Aboriginal owners”.

228.    Title is held by a Land Trust for a group of Aboriginal people wider than those identified as traditional owners, hence the bifurcation in s 19(5) between consent from traditional owners as a group and consultation with any Aboriginal community who are affected. Mansfield J expressed it this way in Myoung at [18]:

A Land Trust holds the title to land vested in it in accordance with the ALRA, but must exercise that ownership for the benefit of Aboriginals entitled by Aboriginal tradition to the use and occupation of the land: s 5(1)(b) of the ALRA. The persons for whose benefit that land must be held may extend beyond the traditional owners as defined to other Aboriginals who may have a traditional entitlement to use or occupy the land.

229.    A Land Trust holds its title for the benefit of the Aboriginals entitled by Aboriginal tradition to the use or occupation of the land: ss 4(1), 5(1)(b), 11(1). It must not exercise its functions in relation to land held by it except under the direction of the relevant Land Council. The functions of a Land Council include protecting the interests of traditional Aboriginal owners of, and other Aboriginals interested in, Aboriginal land, and negotiating on their behalf with persons desiring to obtain an interest in such land. In carrying out those functions, a Land Council must have regard to the interests of the traditional Aboriginal owners. It is not to take action in connection with land held by a Land Trust unless satisfied that the traditional Aboriginal owners understand the nature and purpose of the action and consent to it and that any Aboriginal community or group affected by it has had an opportunity to express views to the Land Council. Except as provided by ss 19-20, a Land Trust must not deal with or dispose of any interest (including a licence) in land vested in it. A Land Council must not give a direction for the grant of an interest unless satisfied that the traditional Aboriginal owners understand and consent, that any Aboriginal affected by the grant has been consulted, and that its terms are reasonable.

230.    If its express terms did not suffice (which in my opinion they do), the fact that s 19(5) is intended to operate as a constraint on the power of disposition of Aboriginal land given to a Land Council has been recognised: see, e.g Blue Mud Bay case at [49].

231.    It is also necessary to consider the Northern Territory Supreme Court decision of Alderson v Northern Land Council (1983) 20 NTR 1, which led to the enactment of s 77A of the Land Rights Act. It is important also because it concerned a factual situation not dissimilar from the present: namely, where some traditional owners opposed the grant of leases (there, mining leases) while the majority of traditional owners agreed to the leases. However, it is also important to recall that Muirhead J’s reasons related to a decision on an interlocutory injunction, and as his Honour observed, were somewhat constrained because of that. Muirhead J referred (at 8) to the “delicate and complicated task” of identifying who are the traditional owners of Aboriginal land for the purposes of the consent and consultation functions given to Land Councils, finding that ultimately it is a task reposed in the Land Council. Muirhead J rejected the conditions of the plaintiffs before him that unanimity amongst traditional owners was required for there to be consent “as a group”.

232.    His Honour said (at 9):

…I take the view that it was the intention of Parliament to leave it to the Land Council to determine whether consent has been given and if this Aboriginal body determines, after due consultation, that a majority decision should be accepted or rejected as a consensus, then it is for that body, not the court, to so determine.

…

One can assume that those who constitute the Land Council, and those Aboriginals who join in deliberation as to land use, well understand the sensitive nature of traditional ownership and the ties thereby created. To deny those people the right to make majority decisions, if they wish to do so would be to deprive them of a decision-making process which they may wish to adopt and which is so commonly adopted in Australian society.

233.    It can be seen that the ultimate form of s 77A reflects his Honour’s approach.

(c) Grounds of appeal

119    It is convenient to address the grounds of appeal in similar groups to those used by the parties in making their submissions. It is appropriate to note at this point that while there was a vast amount of evidentiary material placed before the Court on the appeal, which occupied two large lever arch folders, the Court was taken to only a relatively small amount of that material.

(i) Grounds 1-6 (fact-finding grounds)

120    For the following reasons, we reject grounds 1-3, all of which relate to the appellants’ claim that the primary judge misunderstood and/or misapplied Jones v Dunkel.

121    First, and foremost, the appellants’ complaints fail to recognise the fact that the rule in Jones v Dunkel does not apply in a vacuum. It must be applied with an appreciation of other relevant forensic and evidentiary rules, which include the fact that an applicant in a judicial review challenge carries the burden of proof. The point is well illustrated at [165] of the plurality’s judgment in Hellicar (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) (emphasis added):

165    Disputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly have been led. Principles governing the onus and standard of proof must faithfully be applied. And there are cases where demonstration that other evidence could have been, but was not, called may properly be taken to account in determining whether a party has proved its case to the requisite standard. But both the circumstances in which that may be done and the way in which the absence of evidence may be taken to account are confined by known and accepted principles which do not permit the course taken by the Court of Appeal of discounting the cogency of the evidence tendered by ASIC.

122    At [167], the plurality in Hellicar explained the rule in Jones v Dunkel in the following terms (footnotes omitted, but emphasis added):

167    This court’s decision in Jones v Dunkel is a particular and vivid example of the principles that govern how the demonstration that other evidence could have been called, but was not, may be used. The essential facts of the case, though well known, should be restated. The personal representative of a driver who had died in a collision with another vehicle brought an action for damages on her own behalf and on behalf of the deceased driver’s dependants. The plaintiff’s case depended upon demonstration that the other driver’s negligence was a cause of the accident. The plaintiff sought to demonstrate negligence by having the tribunal of fact (in that case a jury) infer from facts concerning the road and the two vehicles involved that the collision had occurred when the defendant’s vehicle was on the wrong side of the road. One of the defendants, the surviving driver, did not give evidence at the trial. The Court divided about whether the inference which the plaintiff sought to have the jury draw about where the collision occurred was an inference that was open on the evidence. But the Court held “that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence”.

123    The ambit of the rule in Jones v Dunkel was previously explained by the plurality in Kuhl v Zurich Financial Services Australia Limited [2011] HCA 11; 243 CLR 361 (Kuhl) at [63] and [64] (Heydon, Crennan and Bell  JJ) (footnotes omitted):

63    The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party’s case. That is particularly so where it is the party which is the uncalled witness. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn. These principles have been extended from instances where a witness has not been called at all to instances where a witness has been called but not questioned on particular topics. Where counsel for a party has refrained from asking a witness whom that party has called particular questions on an issue, the court will be less likely to draw inferences favourable to that party from other evidence in relation to that issue. That problem did not arise here. The plaintiff’s counsel did ask the plaintiff relevant questions.

64    The rule in Jones v Dunkel permits an inference, not that evidence not called by a party would have been adverse to the party, but that it would not have assisted the party…

124    Inexplicably, it appears that neither of these important and relevant High Court authorities on the rule in Jones v Dunkel was brought to the primary judge’s attention below. In any event, the appellants have not persuaded us that her Honour fell into appealable error in her understanding or application of the relevant principles.

125    It is indisputable that the then applicants carried the burden of making good one or more of their multiple judicial review grounds, which necessarily required them to have established by admissible evidence the factual foundation for those grounds.

126    Secondly, none of the findings particularised in ground 1 of the amended notice of appeal involved the primary judge applying an erroneously high standard of proof. Each of those particularised findings will be now addressed in turn.

(a)    The primary judge’s analysis and findings at J[287] and J[288] relate to the inconsistencies between the evidence of Mr Gosford and Mr Jeffrey Oliver. It was well open to the primary judge to resolve these inconsistencies in the manner in which she did, in circumstances where Mr Oliver was not cross-examined by the CLC about Mr Gosford’s version of relevant events and on the basis of the primary judge’s own assessment of Mr Oliver’s evidence (see, in particular, J[283]). Moreover, it was open to her Honour to attach significance to the fact that neither Mr Alice nor Mr Gosford was cross-examined about what they said at the 12 October 2016 meeting regarding Mr Oliver’s position. In addition, it is evident from other parts of the primary judge’s reasons for judgment that her Honour was well aware that the standard of proof carried by the then applicants was the civil standard, being the balance of probabilities (see, for example, J[328] and J[373]). Further, and in any event, the primary judge correctly explained at J[289] that the accuracy of the evidence of either Mr Alice or Mr Gosford in conveying Mr Oliver’s view was not determinative of any of the grounds of review. This is partly because the primary judge concluded at J[288] that she was unable to make any finding one way or the other on the accuracy of what they said about Mr Oliver’s position and also because of what her Honour said at J[347], J[365]-[369] and J[373].

(b)    Contrary to the appellants’ contention, the primary judge did not proceed on the basis that the appellants had to prove that relevant facts “necessarily” existed, which required a higher standard than the civil standard. Nothing in J[357], to which the appellants referred, supports that contention. In that paragraph, the primary judge was addressing the state of satisfaction which the Committee had to hold under s 19(5) of the ALR Act. Her Honour’s reference therein to “necessarily” was specifically directed to her earlier rejection at a factual level of the appellants’ submission below that the timing of the presentation of Mr Gosford’s paper to the Committee “necessarily means that the Committee members had not read it and did not take it into account in forming their state of satisfaction…”. The primary judge’s findings on these matters are set out at J[322]-[328]. In essence, the primary judge inferred from the minutes of the 12 October 2016 meeting that Mr Gosford’s information paper was noted and there was a brief discussion on it after the s 19(5) resolution was passed (see J[322]). Her Honour was not prepared to infer that the Committee members had in fact read Mr Gosford’s paper before voting on the resolution. Given the state of uncertainty created by the lack of direct evidence, it was open to the primary judge to resolve the matter in the way which she did, namely by holding the then applicants to their burden of proof in making good their claim that in fact the Committee members had not read either Ms Campbell’s paper or Mr Gosford’s (J[328]). Although it is true that the primary judge did not expressly employ the language of Jones v Dunkel, we understand her Honour’s reasoning to be to the effect that, because no inference could be drawn one way or the other as to whether the Committee members had read those papers before the resolution was passed, there was no proper foundation to attract the operation of the rule in Jones v Dunkel. All the more so in circumstances where appropriate weight could be given to the composition and qualifications for membership of the Committee members (see J[349]). We are not satisfied that her Honour’s approach involved appealable error.

(c)    For the reasons given above, we do not accept that the primary judge applied a standard of proof which was similar to the criminal standard, and not the civil standard. As to the particular paragraphs of the reasons for judgment cited by the appellants:

(i)    J[288]-[289]: see (a) above.

(ii)    J[347]: it was open to the primary judge to proceed on the basis that the Committee was entitled to use its knowledge and expertise in reaching the requisite state of satisfaction and there is nothing in this paragraph to indicate that her Honour was applying a higher and impermissible standard of proof.

(iii)    J[356]-[357]: the primary judge’s conclusion that, because of the gaps in the evidence, no positive finding of fact could be made that the Committee acted only on the text of Ms Campbell’s paper (which was found to be incomplete on its face) does not reveal the application of an inappropriate standard of proof. As to J[357], see (b) above.

(iv)    J[373]: again, there is nothing in this paragraph which reveals the application of an erroneously high standard of proof. Indeed, the primary judge made an express reference in this very paragraph to the then applicants’ failure to prove certain matters “on the balance of probabilities”.

(d)    J[369]: this paragraph must be read in context. The primary judge’s references to the role played by Committee members having regard to their knowledge of membership and dynamics of a particular traditional owner group, and assumed knowledge and familiarity with Indigenous decision-making processes, occurs in the context of the emphasis her Honour placed on the more limited reporting role of CLC officers, as opposed to the decision-making role of Committee members. No appealable error is disclosed in this paragraph.

(e)    J[373]: again, this paragraph must be read in context, as a whole, and with an appreciation that it is, in substance, a summary of the primary judge’s conclusions based on her Honour’s more detailed analysis in the preceding paragraphs at J[351]-[372]. The primary judge explained why she was not prepared to draw particular inferences as sought by either the then applicants or the CLC having regard to the gaps, deficiencies and shortcomings in the evidence as identified by her Honour. No appealable error is established.

(f)    The appellants have not established that the primary judge applied an erroneous standard of proof, whether in relation to the proof of negative propositions or otherwise. The appellants relied upon authorities concerning a party’s onus in establishing a negative proposition, including Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561 and Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd [2008] NSWCA 39 (Rockcote). The general principle which was acknowledged and applied in those cases is incontrovertible. It is reflected in Rockcote at [78] (emphasis added):

78    If a plaintiff has the onus of proving a negative proposition, the fact that the defendant has greater means to produce evidence which contradicts that negative proposition, does not mean that the plaintiff ceases to have the onus of proof of that negative proposition. However, once the plaintiff establishes sufficient evidence from which, if that evidence is accepted, the negative proposition may be inferred, an evidential onus shifts to the defendant to adduce evidence that tends to show that the negative proposition is incorrect. If a defendant adduces such evidence, the plaintiff must then, as part of its overall burden of proof, deal with that evidence either by submission or argument. See generally Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561; Hampton Court Ltd v Crooks [1957] HCA 28 ; (1957) 97 CLR 367 at [1]–[2], 371–2; Baiada v Waste Recycling & Processing Service of NSW [1999] NSWCA 139 ; (1999) 130 LGERA 52 at [55], 64–65. As Hunt J put it in Apollo at 565:

… provided that the plaintiffs have established sufficient evidence from which the negative proposition may be inferred, the defendant carries what has been called an evidential burden to advance in evidence any particular matters with which (if relevant) the plaintiffs would have to deal in the discharge of their overall burden of proof … [T]he plaintiffs’ burden of proof of the negative proposition for which they contend is not as difficult in this case as it might otherwise have been because of the defendant’s greater means to produce evidence which contradicts that proposition.

This principle was not engaged in the circumstances of this case. That is because the primary judge found that the then applicants had not provided sufficient evidence from which any relevant negative proposition could be inferred, thus the occasion for the evidentiary onus to shift to the respondents to adduce evidence to show that the negative proposition was incorrect never arose. No appealable error has been demonstrated in respect of her Honour’s several findings that there was an insufficient evidentiary basis upon which any of the negative propositions asserted by the then applicants could be inferred.

127    Thirdly, the various matters raised by the appellants under ground 2 of the notice of appeal in support of their contention that the primary judge misapplied Jones v Dunkel overlap with some of the particulars raised in ground 1. We adopt and repeat our reasons above for rejecting those contentions.

128    Fourthly, ground 3 claims that the primary judge erred in attaching any significance to the fact that the appellants themselves did not call evidence from any of the Committee members. This apparently refers to what the primary judge said below at J[348], which for convenience is set out in full:

348    The applicants have not proven the decisions were taken without genuine thought or consideration. To adopt the language of Bromberg J, they have not proven there was an absence of active intellectual consideration by the CLC Committee, or a failure by the CLC Committee members to apply their own minds to whether the Amoonguna traditional owners, as a group, consented to the impugned leases. The applicants could have asked, but did not, for reasons for the CLC Committee’s decision to give a direction to the AALT. They could have called members of the CLC Committee to give evidence and explain why they reached their decision. They did not. There is simply no evidentiary basis on which the Court can infer there was no thought, no analysis, no consideration or no discussion by the CLC Committee members.

129    As is apparent from its terms, in this paragraph the primary judge was explaining, in a summary conclusionary form, why she did not accept the contention that the Committee had not given genuine thought or consideration to the matters it had to address in order to attain a lawful state of satisfaction as required by s 19(5)(a). It is indisputable that the then applicants carried the evidentiary burden of making good that contention. Her Honour’s references in J[348] to the then applicants’ failure to ask the Committee for reasons for its decision or to call Committee members to give evidence and explain why they came to the decision which they did under s 19(5)(a) were made in that context. We do not read the reference to not calling the Committee members as witnesses for the then applicants as relating to the rule in Jones v Dunkel. There is no error in the primary judge stating that the then applicants could have called the Committee members. It is well established that there is no property in a witness.

130    For these reasons, ground 3 of the amended notice of appeal is rejected.

131    As noted above, the appellants asserted that grounds 4 to 6 of their amended notice of appeal did not depend on the success of their claims concerning the misapplication of Jones v Dunkel. For the following reasons, these grounds, which all relate to the primary judge’s finding of fact, must also be rejected.

132    Ground 4 attacks the primary judge’s finding of fact at J[349] and J[359] respectively regarding the characteristics of the members of the Committee and whether membership of ICL was “notorious” to Committee members. As to the first matter, it was open to the primary judge to make the observations (or findings) that she did at J[349] (and elsewhere) concerning the importance of the characteristics and presumed knowledge of Committee members in circumstances where:

(a)    the statutory scheme itself required that such Committee members must be members of the Land Council (s 29A(1));

(b)    to be eligible to be a member of a Land Council, a person must be an Aboriginal living in the area of the Land Council or whose name appears in any register (s 24 and s 29(1)); and

(c)    Land Council (and Committee) members must be elected by Aboriginals living in the Land Council’s area (s 29(1)).

133    The implications and inferences which the primary judge drew from these statutory requirements in terms of the knowledge and understanding of traditional and customary Aboriginal matters were also consistent with Muirhead J’s observations in Alderson at 8, to which her Honour made express reference in J[231], and Kenny J’s observations in Gondarra at [122] and [125].

134    As to the second matter, having regard to the salient relevant features of the statutory scheme as summarised immediately above, this provided an adequate foundation for the primary judge’s finding at J[359] that it would have been a “notorious fact to CLC Committee members” that the members of ICL were traditional owners, particularly where the Committee membership included Mr Abbott (see [29] above). This finding was supported in any event by the contents of Mr Gosford’s information paper, to which the primary judge also made reference at J[359]. For these reasons, ground 4 is rejected.

135    Ground 5 alleges that the primary judge erred in determining certain issues based upon the then applicants’ onus of proof, rather than by making findings based on what the appellants describe as the available evidence pertaining to these issues. Dealing in turn with each of the issues as particularised, this ground is rejected.

(a)    As to the primary judge’s statements at J[288], which relate to Mr Oliver’s evidence, it was open to her Honour to reason as she did given her earlier findings and observations regarding the “problematic” nature of Mr Oliver’s oral evidence (see J[283]-[285]) and the absence of any cross-examination of several witnesses in respect of Mr Oliver’s position as at the 12 October 2016 meeting.

(b)    As to the primary judge’s statements at J[289], it was open to her Honour to hold the then applicants to their burden of proof in making good their claim that there were material inaccuracies or deficiencies in the information which was provided to the Committee in the meeting papers. There was probative material to support the primary judge’s findings that this material was not relevantly inaccurate or incomplete.

(c)    As to the primary judge’s conclusion at J[328] that the then applicants had failed to prove on the balance of probabilities that the Committee members did not read or consider the Campbell and Gosford papers, it was open to the primary judge to resolve the matter by reference to the then applicants’ burden of proof in circumstances where her Honour was unable to make a finding one way or the other on the matter for reasons which are fully and (with one exception) correctly explained by the primary judge at J[323]-[327]. The exception relates to her Honour’s finding at J[323] that Mr Gosford did not attend the Committee meeting. This was in error having regard to Mr Gosford’s unchallenged affidavit evidence that he did attend the meeting (see [27] of his affidavit dated 9 May 2017). This issue is raised by CLC and the AALT in its amended notice of contention.

(d)    It was equally open to the primary judge to hold the then applicants to their burden of proof in establishing that what Mr Gosford reported to the Committee about what Mr Phillip Alice told him was untrue (see J[365]). The primary judge provided full and sufficient reasons for her Honour’s findings in relation to this matter at J[365]-[373].

(e)    The attack on the primary judge’s reasoning at J[369] is rejected for similar reasons to those given above in rejecting ground 4.

(f)    Similarly, the challenge to the primary judge’s reasoning at J[373] regarding the burden of proof must also fail having regard to the matters set out therein and as to why her Honour adopted that course. No appealable error has been established in respect of these matters (see [126(e)] above).

136    Ground 6 impugns the primary judge’s failure to find that the written material provided to the Committee exhaustively stated what the Committee considered and reasoned in attaining its satisfaction as to the matters specified in s 19(5). The appellants assert that the trial was conducted on the common basis that the Wynniatt material constituted all the material before the Committee when it made its decision on 19 October 2016 and that they were denied procedural fairness when, inconsistently with that alleged common position and without advance notice, the primary judge took into account matters relating to the qualifications and presumed knowledge and familiarity with Indigenous issues of Committee members.

137    There are several difficulties with this part of the appellants’ case. First, it does not accurately state the basis upon which the trial was conducted. We accept the CLC’s submission that its stated position below was that material brought into existence by CLC officers for the Committee meeting, and the terms of the relevant resolution which was passed, evidence what the Committee considered and reasoned in reaching the state of the satisfaction of s 19(5)(a) of the ALR Act. But the CLC also submitted below that, consistently with Gondarra, it was relevant for the Court to take into account that Land Councils are specialised representative bodies made up of traditional Aboriginal owners and that they also have power to employ staff and obtain expert advice.

138    Secondly, in circumstances where 75 minutes was allocated for discussion of the five resolutions for consideration by the Committee at its 19 October 2016 meeting (which included the resolution concerning Amoonguna land), it is open to infer that there is likely to have been some discussion on the matter prior to the resolution being passed, and not merely the discussion of Mr Gosford’s paper which appeared to take place after the resolution was passed.

139    Thirdly, as the CLC points out, the appellants acknowledged below that the Committee could use its own knowledge and expertise (see [98] above).

140    Fourthly, the appellants referred to the Full Court’s decision in Telstra Corporation Ltd v Hurstville City Council [2002] FCA 385; 118 FCR 198 at [50]. That decision is distinguishable. The passage on which the appellants rely is directed to the specific question of the legal principles which apply where it is alleged that a multi-member body (such as a local authority) has exercised a statutory power for an improper or extraneous purpose. At [50], the Full Court expressed concurrence with the primary judge’s view that in discerning the purpose of such a body’s actions, it was permissible to go beyond the terms of any formal resolution and to have regard to documents and reports created by the body’s staff for consideration by the local authority. No issue of extraneous purpose is raised in these proceedings. No appealable error has been established.

(ii) Grounds 7-8

141    The amended notice of appeal raised several grounds of appeal relating to s 77A of the ALR Act. Grounds 7 and 8 focus on what the appellants allege was the “determinative” weight or characterisation given by the primary judge to this provision and her Honour’s alleged misconstruction of it. In contrast, ground 12 focuses on whether the primary judge denied the appellants procedural fairness by her alleged reliance on s 77A and without giving the appellants notice of that intended reliance and an opportunity to comment on it (see [155]ff below).

142    For the reasons that follow, grounds 7 and 8 are rejected. That is primarily because, on close analysis, the primary judge did not give determinative weight to the operation of s 77A in the particular circumstances here. Her Honour made numerous references to s 77A in her reasons for judgment (including describing it as an “important” and “key” provision at J[30] and J[299] respectively) and criticised the appellants in particular for not addressing the potential significance and operation of the provision. However, the provision itself was not ultimately essential to her Honour’s reasons for rejecting the then applicants’ challenge to the lawfulness of the Committee’s state of satisfaction under s 19(5). To demonstrate that this is so, it is necessary to pay close attention to the several observations made by the primary judge concerning s 77A. Those observations may be summarised as follows:

(a)    The primary judge remarked several times on the paucity of any direct evidence as to whether either of the two methods of decision-making explicitly identified in s 77A(a) and (b) were in fact engaged at the Chifley Hotel meeting: J[300], J[339] and J[341].

(b)    This evidentiary gap made it more difficult to assess the Committee’s decision: J[304], bearing in mind that the then applicants were challenging the lawfulness of the Committee’s state of satisfaction under s 19(5), in relation to which they carried the burden of proof.

(c)    Despite the absence of any direct evidence, the primary judge inferred that traditional law and custom required the decision under s 19 to give a direction to be made in accordance with traditional law and custom: J[342].

(d)    This inference in turn meant that the Committee itself had to be satisfied that a decision-making process in accordance with traditional law and custom had occurred and resulted in the giving of consent by the traditional Aboriginal land owners as a group: J[343].

(e)    On one view, if the Committee had that state of satisfaction, s 77A then operated to deem consent as a group to have been given: J[343].

143    We understand her Honour to be saying that, if the Committee reached a lawful state of satisfaction under s 19(5)(a), that state of satisfaction would exist as a matter of fact, but s 77A would then also operate as a statutory deeming provision to deem consent to have been given. Thus there is a distinction between a finding that the state of satisfaction relevantly exists and the subsequent operation of the statutory deeming provision. Her Honour said that this dichotomy presented a further difficulty for the then applicants’ case: J[343]. In other words, her Honour was saying that the then applicants never confronted the interrelationship between the requisite state of satisfaction under s 19(5)(a) and the potential operation of s 77A to that aspect of s 19(5) which related to decision-making in accordance with traditional law and custom. We consider that this is what the primary judge had in mind when she made the additional observations at J[350] that the then applicants’ challenge to the lawfulness of the Committee’s state of satisfaction (which was rejected for reasons which were unrelated to s 77A) would need to have been reformulated to take into account the deeming effect of s 77A.

144    We understand the primary judge to be saying that in circumstances where the then applicants’ own case was that the decision-making process had to be made in accordance with traditional law and custom, that case had to confront the potential operation of s 77A but it failed to do so. But nothing of significance attached to that failure because the primary judge rejected the challenge to the lawfulness of the state of satisfaction under s 19(5) for reasons which were unrelated to s 77A.

145    For these reasons, we reject the appellants’ claim under ground 7 that the primary judge gave “determinative weight” to matters relating to the operation of s 77A.

146    Ground 8 is also rejected. That is because it is plain that the primary judge did not treat s 77A as establishing “an exhaustive binary code” in relation to decision-making processes of the traditional Aboriginal landowners here, as her Honour made sufficiently clear in J[301] when she stated that s 77A does not purport to be exhaustive of the methods of decision-making adopted.

(iii) Grounds 9-11

147    Ground 9 directs attention to J[368]. The appellants’ essential complaint is that the primary judge erred in stating that it was for the CLC’s officers to report to the Committee what the traditional Aboriginal owners, as a group, had decided. This ground cannot be accepted when proper regard is had to the context in which the statement was made:

368    While Land Council employees or officers, such as Ms Wilmot and Mr Gosford, may have their own views, borne of experience with particular communities, about who needs to have agreed, or at least not disagreed, and what proportion of the traditional owner group needs to indicate agreement for the consent to be seen to be consent “as a group”, those opinions cannot be definitive and, at best, are simply part of the information base for the CLC Committee. The core information is what process was adopted for the purposes of s 77A, and in accordance with the choice made, what was said on behalf of the traditional owner group itself. The principal function of such officers is a reporting one: to report, accurately, to the CLC or its delegate committee what the traditional owners, as a group, decided.

148    This ground also fails to acknowledge what the primary judge said at J[369] regarding the scheme of the ALR Act being such that the members of the Committee were entitled to rely upon their own knowledge and familiarity with relevant matters, as well as take into account that which was reported to them by CLC staff. No appealable error is established with her Honour’s reasoning on these matters.

149    Ground 10 challenges the primary judge’s findings as J[345] and J[367] concerning the alleged deficiencies in the Campbell and Gosford papers. We accept the CLC’s contention that this ground should be rejected as it assumes an unduly prescriptive level of detail in the material which is placed before the Committee for the purposes of its decision-making under s 19(5). It was open to the primary judge to make the findings which she did, for the reasons given by her Honour at J[364] and J[373] (which are set out in [50] and [51] above) and with which we respectfully agree.

150    Ground 11 attacks the primary judge’s failure to find that the information which was placed before the Committee was incomplete when a copy of Ms Wilmot’s 2012 report was not included among those materials. This ground is rejected. Her Honour was entitled to take into account and rely upon Ms Wilmot’s evidence in the proceedings below as to how she arrived at the conclusions which she expressed in her memorandum to Mr Gosford following her attendance at the 12 October 2016 meeting at the Chifley Hotel. The information contained in that memorandum was accepted and relied upon by Mr Gosford in preparing his information paper which was then placed before the Committee. He was entitled to act upon Ms Wilmot’s report to him of her observations, particularly taking into account her anthropological expertise and long experience. No appealable error has been established in respect of the primary judge’s reasoning. Even if it was accepted that Ms Wilmot’s memorandum to Mr Gosford was somehow materially incomplete (which has not been established) the primary judge was correct to factor in the presumed knowledge and understanding of relevant traditional law and customs by Committee members having regard to their qualifications for membership.

(iv) Grounds 12-13

151    As noted above, the primary judge found it unnecessary to determine whether or not procedural fairness was owed to the now appellants because, even if it was, her Honour found that there was no breach. We propose to adopt a similar course and to focus on the question of whether the appellants have established any appealable error in the primary judge’s findings that, if there was a duty of procedural fairness owed to the appellants, it was not breached. For the following reasons, no such error has been established.

152    No error has been demonstrated in respect of the emphasis which the primary judge gave to the process of decision-making under relevant provisions of the ALR Act. In particular, no error has been established with respect to her Honour’s reasoning at J[380] and J[381], which for convenience is set out here:

380    The function of the CLC, or its delegate, is not to “hear” from persons affected and then factor what it hears into a decision. Its function is to be satisfied, one way or the other, whether the traditional owners have consented, as a group. That is, it is to be satisfied as a matter of fact about a precondition to its discretionary power (relevantly in ss 19(3) and 19(4A)) to issue a direction to a Land Trust to grant an interest in the Aboriginal land which has been the subject of traditional owner consent. There are no express restrictions, save for the terms of s 77A, on the material it might consider in forming that state of satisfaction, provided the material is relevant and probative.

381    That is not to suggest there will never be any obligation of procedural fairness, or that circumstances might not arise where a Land Council needs to apprise traditional owners of matters or information as part of the process of considering whether to give a direction, once the precondition is met. However, those kinds of circumstances form no part of the applicants’ case here.

153    Nor has any error been established in the primary judge’s reasoning as to why Jeffs is distinguishable. It involved a very different statutory scheme and the delegation of a “hearing function” to a Committee of the New Zealand Dairy Production and Marketing Board in the context of the Board deciding a particular zoning issue. The Committee purported to conduct a two day hearing on the zoning issue and then recommended a particular zoning arrangement to the Board but without summarising the evidence given at the two day meeting. The Privy Council held that the Board, as the ultimate decision-maker, had failed to hear the evidence and submissions of those affected by the zoning decision. It was not unlawful of the Board to delegate the hearing function, but it was necessary for the delegate to ensure that the Board, as the ultimate decision-maker on the zoning issue, was properly informed of the evidence and submissions presented at the Committee’s hearing and to give proper consideration to that material.

154    As the primary judge also correctly pointed out, the function of the Committee here is quite different from that of the AALT. The function of the AALT is to hold and/or deal in land which is vested in it, subject to the requirements of the ALR Act, including that the dealing is authorised by a written direction given by the relevant Land Council. The function of the Land Council is to determine whether or not it has the relevant state of satisfaction as required by each of s 19(5)(a), (b) and (c) as preconditions to the giving of a written direction. One of the preconditions is that the Land Council is satisfied whether the traditional owners (if any) understand the nature and purpose of the proposed land dealing and, as a group, consent to it.

155    As to the appellants’ separate claim that the primary judge denied them procedural fairness because of her Honour’s unexpected reliance on s 77A in J[376], this claim must also be rejected for the following reasons.

156    First, contrary to the appellants’ claim, the parties cannot have been caught by surprise by her Honour’s references to s 77A. The appellants do not dispute the primary judge’s observation at J[299] that they made written submissions on that provision in the proceeding below.

157    Secondly, when the primary judge’s reasons for judgment are read as a whole, it is evident that s 77A was not critical or determinative in her Honour’s reasons for rejecting all the judicial review grounds, including the complaint of procedural unfairness (see the lengthy discussion on this issue in respect of grounds 7-8 above). Fairly read, the primary judge did not state at J[376] that the procedural fairness case failed because of s 77A. Rather, her Honour is properly understood as saying that the procedural fairness case failed because of the rejection of the then applicants’ contention that the Chifley Hotel meeting should be characterised as a “hearing” which was akin to that which was conducted in the Jeffs litigation, such that that hearing had to comply with procedural fairness requirements.

158    The primary judge’s reference to s 77A at J[376] should not be read in isolation from her Honour’s analysis of that provision elsewhere in her reasons for judgment, including at J[299]-[306]. Read in that context, it is readily apparent that when her Honour referred at J[376] to the Chifley Hotel meeting as “a meeting convened as part of the process envisaged by s 77A”, she was referring to the fact that s 77A operates as a deeming provision, but only where there is evidence that one of the two processes of decision-making specified in s 77A(a) and (b) had in fact been engaged. The primary judge fully appreciated that the statutory deeming provision did not operate where some other decision-making process was adopted. Her Honour had expressly acknowledged at J[301] that s 77A did not purport to be exhaustive of the methods of decision-making adopted by traditional Aboriginal land owners and its operation depended upon one or other of the two specified methods having been adopted. Her Honour made an express finding at J[305] that the evidence before her suggested that an assumption was made that “some kind of traditional decision-making process was to be undertaken”, but there was no evidence or concession made that the meeting at the Chifley Hotel involved either of the two specified methods under s 77A.

159    At J[303], the primary judge described this state of affairs as “problematic”, for the reasons she then explained at J[304]-[306]. The wording of J[306] makes abundantly clear, however, that despite the primary judge’s critical observations concerning the paucity of evidence which may have enlivened the deeming operation and effect of s 77A, this provision was not determinative of her Honour’s rejection of each and all of the grounds of judicial review. The primary judge stated there that s 77A would have arisen for consideration on the question of relief if she had been minded to uphold any of the individual judicial review grounds.

160    We have explained above why we reject the appellants’ challenge to other aspects of the primary judge’s consideration of the s 77A as raised by grounds 7 and 8 of the notice of appeal. The appellants’ complaint of procedural unfairness with specific reference to s 77A is without substance and is rejected.

161    The next question, as raised by ground 13, is whether the primary judge erred in not finding that Ms Marie Ellis was denied procedural fairness because of the failure to provide her with “copies of the impugned leases” as requested by her at the Chifley Hotel meeting. For the following reasons, this ground is rejected.

162    We assume that this complaint of procedural unfairness is made only by Ms Marie Ellis herself and not by the second or third appellants. That is because a third party cannot generally complain of a breach of procedural fairness which is owed to some other person (see Comcare v Post Logistics Australasia Pty Ltd [2012] FCAFC 168; 207 FCR 178 at [99]).

163    Secondly, it is unnecessary to determine the threshold question of whether or not procedural fairness was owed to Ms Ellis personally if in fact there was no denial of procedural fairness requirements, which we consider to be the case. As noted above, this was also the approach taken by the primary judge, with which we respectfully agree.

164    Thirdly, it is important to note the unchallenged findings of fact made by the primary judge on the request which was made by Ms Ellis which is said to provide the factual foundation for her procedural unfairness complaint. In particular, the following matters should be noted.

(a)    The primary judge made an express finding at J[388] that, prior to the meeting on 12 October 2016, neither Ms Marie Ellis or her sister asked to see copies of any of the impugned leases.

(b)    Her Honour found at J[389]-[391] that, during the course of the meeting, Ms Marie Ellis, asked to see copies of the proposed leases to the NT (and IES), which related to the school and sewerage works respectively.

(c)    Her Honour found that there was no evidence which explained why Ms Marie Ellis wanted to see the actual leases, rather than receive a presentation about them and an opportunity to ask questions (J[393]).

(d)    The primary judge noted at J[392] that, during argument, the then applicants’ counsel had given an example that the terms of the actual leases were material to the issue of local employment (which was a matter of particular concern to Ms Ellis), but there was no evidence that this is what underlay Ms Ellis’ request to see full copies, thus there was “no content” given by her as to why she needed to see the documents themselves (J[393]).

(e)    In substance, although not in form, the primary judge’s reasons for rejecting the complaint of procedural unfairness was that Ms Ellis had not demonstrated that she had suffered any “practical injustice” in not viewing a full copy of the proposed leases (see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [38]; Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180 at [82]; and Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [57] per Gageler and Gordon JJ).

165    There is no appealable error in these parts of the primary judge’s reasons for rejecting the complaint of procedural unfairness.

166    As noted above, the primary judge gave additional reasons for rejecting the procedural fairness complaint, including Ms Ellis’ implacable opposition to the grant of the impugned leases. It is unnecessary to determine whether this or any related matter gave rise to appealable error, as contended for by the appellants (see [77] above). Any such error would in any event be immaterial because the primary basis for rejecting the procedural fairness complaints discloses no appealable error. In particular, her Honour’s reasoning at J[393] demonstrates why there was no practical injustice to either Ms Ellis as an individual (or to the traditional owners as a group).

(v) Grounds 14-17

167    The first of these grounds of appeal (ground 14) relates to the appellants’ claim that the primary judge misunderstood ground 5 below as a relevant considerations ground when in fact it was a failure to consider relevant material ground. The appellants further claimed that the primary judge erred in treating Mr Bagshaw’s report as being relevant to ground 5 below, when in fact it related only to ground 6 below and the then applicants’ complaint of legal unreasonableness (ground 15 in the appeal). Further, as noted above, the appellants claim that the CLC made a concession below which the primary judge failed to act upon, namely that the failure to provide the Committee with Ms Wilmot’s 2012 report gave rise to reviewable error (ground 16). Finally, by ground 17, the appellants claim that the primary judge erred in failing to act upon another alleged concession given by the CLC, namely that ground 5 below must succeed unless it was open to the Committee to have CLC staff advise it on the issue whether consent had been given for the purposes of s 19(5) (ground 17).

168    Each of these grounds is rejected for the following reasons.

169    First, as to ground 14, it is scarcely surprising that the primary judge addressed this aspect of the then applicants’ case by reference to what was said in Peko-Wallsend, the leading Australian authority on the “relevant considerations” ground of judicial review, in circumstances where the then applicants themselves had expressly referred to that authority in support of this aspect of their case below. Moreover, in his closing address, the then applicants’ counsel responded to a question from the primary judge on this aspect of the judicial review challenge by saying “our argument is that the line between not having regard to evidence and not having regard to what is called a consideration is one that is not simple to draw”.

170    Ground 15 is also without substance. The primary judge’s references to Mr Bagshaw’s report in her Honour’s reasons for rejecting ground 5 below provide only a part of her overall reasoning for rejecting that ground. Even if it was impermissible for the primary judge to refer to Mr Bagshaw’s report in disposing of ground 5 in circumstances where it was relied upon by the then applicants only in respect of ground 6 (and we make no finding in that regard), any such error would be immaterial.

171    As to ground 16, we are not persuaded that the CLC made the concession below as alleged by the appellants. Merely because a party makes a contention along the lines of “in any event, a particular submission should not be upheld” for reasons which are unrelated to the substance of the submission does not connote that the party accepts the substance of the underlying submission.

172    Finally, the appellants have not satisfied us that the CLC made any concession below along the lines of that raised by ground 17.

(vi) Grounds 18-20

173    These grounds, which all relate to legal unreasonableness, are rejected for the following reasons.

174    First, they are predicated on an erroneous reading of both Li at [83] and the primary judge’s reasons here at J[416]-[420]. It is desirable to set out [83] of the plurality’s judgment in Li:

83    The purpose of s 360(1) has already been referred to. It is to provide an applicant for review the opportunity to present evidence and arguments “relating to the issues arising in relation to the decision under review”. The question which remained in issue when the Tribunal made its decision was the satisfaction of a visa criterion by a complying skills assessment. Although the Tribunal could not be expected to assume that the second skills assessment, when reviewed, would favour Ms Li, it did not suggest that there was no prospect of the second skills assessment being obtained, or that the outcome could not be known, in the near future. In these circumstances it is not apparent why the Tribunal decided, abruptly, to conclude the review.

175    As is clear from that extract, the plurality was not suggesting that events which occurred post the time of the making of the impugned decision were relevant to an assessment of legal unreasonableness of the Tribunal’s decision not to adjourn its hearing. Rather, the plurality was focusing on what the decision-maker ought reasonably to have known about possible future events at the time the impugned decision was made.

176    The primary judge plainly read [83] of Li in that manner, as is reinforced by her Honour’s reference in J[417] to what the Tribunal in Li knew about the prospects of the second skills assessment being different from the first. By emphasising that the relevant issue focused on the prospects of something being different, the primary judge correctly understood that it is not relevant to take into account what actually happened post the relevant point in time for assessing the issue of legal unreasonableness.

177    Applying that approach, which was entirely consistent with Li, her Honour stated at J[418] that the ground of legal unreasonableness must fail because there was no evidence upon which the Court could make any finding about what the Committee knew or ought to have known at the relevant point in time (i.e. when it decided to issue the direction) about the possible outcome of the Bagshaw report. The appellants have not established any appealable error in this reasoning.

178    It is therefore strictly unnecessary to determine the appellants’ challenge to the correctness of the two additional reasons given by the primary judge for rejecting their complaint of legal unreasonableness, as set out in J[419] and J[420]. Neither reason, even if flawed, would give rise to a material error. For completeness, however, we would reject both challenges. As to the reasons given by the primary judge in the balance of J[419], her Honour correctly observed that the Committee did not exercise any discretionary power adversely to the then applicants so as to attract the principles in Li. Her Honour implicitly understood that those principles related to the exercise of a statutory power. The appellants did not request the Committee to defer its decision under s 19(5) until the Bagshaw report was available to it. The making of a decision under s 19(5) itself did not involve the exercise of any statutory discretionary power. Rather, it focused on whether or not the requisite state of satisfaction existed. This may have involved an evaluative judgment on the part of the Committee but the process of decision-making under s 19(5) is far removed from the Tribunal’s statutory power under s 363 of the Migration Act 1958 (Cth) to adjourn a review which was the subject in Li.

179    As to the separate reasoning in J[420], no appealable error has been established in the primary judge’s findings that there was no evidence that the Committee knew anything about the Bagshaw retainer or report. The primary judge was also correct to reject the appellants’ contention based on Peko-Wallsend, that constructive knowledge should be imputed to the Committee based on the knowledge of CLC’s staff concerning the Bagshaw briefing. Her Honour’s reasons for doing so at J[420] are not entirely clear. Their obscurity is largely due to the reference therein to “the evidentiary position” being that the then applicants had failed to establish that any Committee members knew about the Bagshaw retainer, its subject matter or its likely timing. The appellants’ constructive knowledge argument was intended to fill that evidentiary gap. It should be rejected, however, because there is no appropriate analogy between the knowledge of an officer of a Minister’s department being imputed to the Minister as in Peko-Wallsend and the different relationship between members of the Committee and CLC staff. The relevance of the special position of the Minister was emphasised in Peko-Wallsend at [4] per Gibbs CJ, at [12] per Mason J, and at [27] per Brennan J.

180    There is a further reason why the concept of constructive knowledge, as applied in Peko-Wallsend, has no application here. In that case, there was information in the possession of the Department as to the precise location of the Ranger 68 uranium deposit, which information differed from that which was set out in the report provided to the Minister by the Commissioner. That information was of central relevance to the Minister’s decision-making function. In contrast, even if it be assumed that CLC staff were aware of the fact that Mr Bagshaw had been retained to provide advice on traditional laws and customs, including decision-making processes as well as update Ms Wilmot’s 2012 report on traditional Aboriginal ownership, there was no evidence to suggest that any of them had any idea at the time of the Committee’s decision as to what Mr Bagshaw might advise.

Conclusion on the appeal

181    For these reasons, the appeal should be dismissed.

The cross-appeal and the notices of contention - overview

182    At the trial, the CLC and the AALT contended that, even if the CLC’s decision-making on 19 October 2016 had been affected by the shortcomings alleged by the then applicants, the validity of the grants of estates or interests by the instruments was preserved by s 19(6) of the ALR Act (the s 19(6) Issue).

For convenience, we set out again the terms of s 19(6):

(6)    Where a Land Council, in giving a direction for a proposed grant, transfer or surrender of an estate or interest in land, fails to comply with subsection (5), that failure does not invalidate that grant, transfer or surrender unless the person to whom the grant, transfer or surrender was made procured the direction of the Land Council by fraud.

183    The appellants resisted, on three bases, the contention of the CLC and the AALT that s 19(6) operated as a validating provision presently. Two of these bases were related: see J[36] and J[478].

(a)    s 19(6) operates only when there has been (relevantly) a “grant” of an estate or interest in land and, for reasons which were independent of the defects in the CLC’s decision-making which they alleged, there had been no “grant”;

(b)    s 19(6) operates only with respect to non-compliance with s 19(5), and not with respect to other matters affecting the validity of a grant; and

(c)    having regard to s 4 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), s 19(6) does not, in any event, preclude a direction of a Land Council under s 19(5) of the ALR Act from judicial review and the grant of relief on such review. Section 4 provides that the ADJR Act has effect “notwithstanding anything contained in any law in force” at the commencement of the ADJR Act and, therefore, notwithstanding anything in the ALR Act which had been enacted in the previous year. The appellants’ submission in short was that the ADJR Act confers rights which are in addition to, and not in derogation of, any other rights by which a person may seek review of a decision and that the rights under the ADJR Act are not confined by a provision such as s 19(6) of the ALR Act.

184    In support of (a) and (b), the appellants had contended that there had not been a “grant” in the required sense because the seal of the AALT has not been affixed to the instruments in the manner required by the ALR Act.

185    The CLC and AALT denied that there had been any shortcoming in the manner of the affixing of the common seal of the AALT to the instruments and contended that, even if there had been:

(a)    s 19(6) also operated to protect the leases from being impugned on the basis of any flaws in the manner of their execution;

(b)    the ALR Act did not evince a statutory intention that defects in the manner of affixing the seal should invalidate the grant; and

(c)    even if there had been flaws in the affixing of the common seal of the AALT with the consequence that the instruments did not grant any legal interest in the land, there had been a grant of equitable interest, such that the relief sought by the appellants should be refused (the Equitable Interest Issue).

186    The primary judge considered it necessary to deal with only some of these contentions. Her Honour found that the common seal of the AALT appearing on each of the instruments had not been affixed with the authority required by s 4(5) of ALR Act, with the consequence that each instrument of grant was not valid, at J[458]-[459]; that s 19(6) did not have any validating effect with respect to the shortcomings in the affixing of the seal, at J[437]; and that the ALR Act did not evince a statutory intention that non-compliance with the requirements for the affixing of the AALT seal should not invalidate the grant of an estate or interest in land, at J[470] and J[473]. Having made these findings, the primary judge considered it unnecessary to deal with the parties’ remaining contentions.

187    By their cross-appeal, the CLC and the AALT allege that the primary judge had erred in “holding and declaring that a grant of an estate or interest made pursuant to s 19 of the ALR Act is not valid if the common seal of the AALT is affixed before a written authority by the three members of the AALT under s 4(5)(a)”. We will refer to this as the Common Seal Issue.

188    Notices of contention were filed by the CLC and the AALT and by the NT and IES. By their amended notice, the CLC and the AALT contend that, even if there had been non-compliance with s 19(5), the primary judge had been correct to dismiss the appellants’ application because s 19(6) had the effect that the non-compliance did not invalidate the grant. The amended notice also raised the issue about the primary judge’s finding concerning the attendance of Mr Gosford at the Committee meeting on 19 October 2018, which we addressed earlier in these reasons. Although it is unnecessary to determine the notices of contention because we consider that the appeal should be dismissed, if it had proved necessary to do so we would have upheld the CLC’s contention that the primary judge erred in finding at J[323] that Mr Gosford did not attend the Committee meeting on 19 October 2016 (see [135(c)] above).

189    By their notice of contention, the NT and IES contend that the applications had been properly dismissed because, even if a legal grant had not been achieved, each of the grantees had an equitable interest arising from the agreements. This is the Equitable Interest Issue.

The cross-appeal - the Common Seal Issue

190    The primary judge held that each of the four instruments granting the leases and the instrument granting the licence was not valid because the common seal of the AALT appearing on each had not been fixed with a written authority signed by at least three members of the AALT, as required by s 4(5)(a) of the ALR Act. The primary judge made a declaration to that effect on 9 April 2018. The terms of the declaration were as follows:

[E]ach instrument of grant is not valid in that the common seal of the Amoonguna Aboriginal Land Trust appearing on each instrument of grant purported to have been affixed on 19 October 2016 was not affixed to the instrument with a written authority signed by at least three members of the Land Trust as required by s 4(5)(a) of [the ALR Act].

191    Although the CLC and the AALT appeal against that declaration, they did not do so on the basis that the primary judge’s conclusion that s 19(6) was not applicable to any invalidity arising from a defect in the manner of affixing the seals was in error.

Statutory provisions relating to the seal of a Land Trust

192    The powers which the AALT was exercising (or, more neutrally, purporting to exercise) in granting the four leases and the licence are contained in ss 19(3) and (4A) of the ALR Act. They provide:

(3)    With the consent, in writing, of the Minister, and at the direction, in writing, of the relevant Land Council, a Land Trust may, subject to subsection (7), grant an estate or interest in land vested in it to the Commonwealth, the Northern Territory or an Authority for any public purpose or to a mission for any mission purpose.

…

(4A)    With the consent, in writing, of the Minister, and at the direction, in writing, of the relevant Land Council, a Land Trust may, subject to subsection (7), grant an estate or interest in the whole, or any part, of the land vested in it to any person for any purpose.

193    Section 4 of the ALR Act contains provisions concerning the common seal of a Land Trust. For convenience, the relevant terms of that provision are repeated:

Legal status of Land Trust

(3)    A Land Trust:

(a)    is a body corporate, with perpetual succession;

(b)    shall have a common seal;

(c)    subject to this Part, may acquire, hold and dispose of real and personal property; and

(d)    may sue and be sued in its corporate name.

Common seal of Land Trust

(4)    The common seal of a Land Trust shall be kept by a member of the staff of the Land Council in the area of which the Land Trust holds land who has been authorized by the Land Council for the purpose.

(5)    The common seal of a Land Trust is to be affixed to a document only with a written authority signed by:

(a)    if the Trust consists of 4 or more members-at least 3 of those members; or

(b)    if the Trust consists of 3 members-at least 2 of those members.

Note:    Section 7 deals with the membership of a Land Trust.

(6)    All courts, judges and persons acting judicially shall take notice of the common seal of a Land Trust affixed to a document and shall presume that it was duly affixed.

194    As is apparent, s 4(4) provides for the custody of the common seal of a Land Trust. Section 4(5) provides for the affixing of the common seal to a document. It specifies that the seal is to be affixed only with authority, in writing, and signed by a specified minimum number of members of the Land Trust. It is the act of affixation of the seal which must be authorised.

195    However, s 4(5) does not require that the common seal be affixed only by a member of a Land Trust, or even in the presence of a member of a Land Trust. Nor does it require that the written authority specify a particular person (or persons) who is authorised to affix the seal, although it is open to a Land Trust to express the authority in those terms.

196    Further, s 4(5) does not, on its face, require a formal resolution by the trustees of a Land Trust authorising the affixing of the Trust’s seal. See in this respect JW Broomhead (Vic) Pty Ltd (in liq) v JW Broomhead Pty Ltd [1985] VR 891 at 915; Magnacrete Ltd v Douglas Hill (1988) 48 SASR 567 at 605; R v Turner (No 9) [2001] TASSC 97; 162 FLR 290 at [31].

The evidence concerning the affixing of the common seal

197    The evidence at trial concerning the affixing of the common seal of the AALT to the instruments and of the subsequent signature of written authorities was given by Ms Rucioch and Ms Matteucci, both of whom were senior administrative assistants employed by the CLC.

198    Ms Rucioch’s evidence was that her role in the CLC included the arranging of documents for signature and execution by the CLC and Land Trusts. She attended the meeting of the Committee on 19 October 2016 with the instruments ready for execution by members of the Committee. On the passing of the resolution containing the direction to the AALT concerning the instruments, Ms Rucioch hand wrote the names of the Chairman of the CLC (Mr Kelly) and a member of the executive (Mr Liddle) on two of the leases and on the licence, and the name of Mr Kelly and another Executive Member (Mr Anderson) on the other two leases. At the same time, Ms Rucioch entered the date 19 October 2016.

199    Ms Rucioch also entered the same names in the places in the documents for the execution by the AALT members, again entering the date 19 October 2016. In each case, Ms Rucioch entered the names and dates under the printed words: “The Common Seal of [the AALT] was affixed in the presence of …” and “The Common Seal of the [CLC] was affixed in the presence of …” respectively.

200    Ms Rucioch then had Mr Kelly, Mr Liddle and Mr Anderson sign the instruments in which she had entered their names.

201    At the same time, Ms Rucioch affixed the seals of both the CLC and of the AALT to each document. At that time, she had no separate authorisation from members of the AALT to affix the seal.

202    Subsequently, Ms Rucioch prepared authorities for the affixing of the AALT seal to the instruments to be signed by members of the AALT and held the instruments until the signing had occurred.

203    Ms Matteucci provided the authorities to the members of the AALT who attended the CLC office on 11 November 2016. Three members of the AALT then signed them.

204    The authorities were in common form, although identifying in each the particular lease or licence with respect to which the affixing of the common seal of the AALT was authorised. Each commenced with the following:

Pursuant to sub section 4(5) of the Aboriginal Land Rights (Northern Territory) Act 1976, authority is hereby given by the undersigned to the Chairman and an Executive member of the Central Land Council to affix the common seal of Amoonguna Aboriginal Land Trust to any documents …

205    On or about 15 November 2016, Ms Rucioch caused the MRC lease and the MRC licence to be sent by post to MRC. The Congress lease was sent by post to it on 15 November 2016. Each of these parties executed the instruments pertaining to it. The NT lease and the IES lease were couriered to the NT Government on or about 21 November 2016 but have not been executed by them. None of the instruments has been registered under the Land Title Act (NT).

The findings of the primary judge concerning the affixing of the seal

206    On the basis of the evidence just summarised, the primary judge found that the seal had been affixed to each of the leases and the licence by Ms Rucioch on 19 October 2016, at J[203]; that at the time Ms Rucioch affixed the seals, there were no existing authorities which purported to accord with s 4(5), at J[332(1)]; that the authorities on which the CLC and the AALT relied in the proceedings had been signed on 11 November 2016 by three newly appointed members of the AALT, at J[206], J[332(2)]; that each of those authorities was directed only to the Chairperson and an Executive Member of the CLC, at J[332(2)]; and that Ms Rucioch held neither of those positions, at J[332(3)]. There was no challenge to any of these findings.

207    The primary judge concluded that, in these circumstances, there had not been compliance with s 4(5) in the way in which the seal had been affixed, at J[426], and that the purported retrospective ratification of the affixing of the common seal by the written authorities of 11 November 2016 had been ineffective, because those authorities were directed to the Chairperson and an Executive Member and not to Ms Rucioch, at J[426].

208    The primary judge held that, in order for the instruments to be effective, they had to be executed under seal, at J[429]-[430]; that in order for there to be a valid exercise of the power of a Land Trust under s 19(3) and (4A) to “grant” an interest or estate in Aboriginal land, there had to be compliance with s 4(5), at J[458]; and that s 19(6) of the ALR Act did not operate with respect to the non-compliance with s 4(5), at J[437]. Her Honour went on to find that the Project Blue Sky Principle (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 (Project Blue Sky)) could not be applied so that non-compliance with s 4(5) should not be regarded as affecting the invalidity of the grants, at J[464].

209    In short, the primary judge held that none of the impugned leases or the licence had been executed by the AALT in the manner required by the ALR Act, at J[459]. In making this finding, the primary judge gave effect to the underlying principle that a corporation’s seal on an instrument does not bind the corporation, except by estoppel, if it has been affixed without authority: Northside Developments Pty Ltd v Registrar General [1990] HCA 32, 170 CLR 146 (Northside Developments) at 170 (Brennan J); Equity Nominees Ltd v Tucker [1967] HCA 22; 116 CLR 518 at 521 (Barwick CJ and Taylor J), 525-6 (Windeyer J).

210    Finally, her Honour found that it was still open to the AALT to act in accordance with the direction given pursuant to s 19(5), at J[473] and J[479].

First submission: authority contained in the CLC’s direction

211    Counsel for the CLC and the AALT argued four matters in contending that the primary judge had erred in her conclusion regarding the affixing of the seal.

212    The first was that the authority for the affixing of the seal of the AALT by Ms Rucioch was contained in the direction by the CLC to the AALT, pursuant to s 19(5) of the ALR Act, to grant the leases and the licence. This was said to be so because of the terms of s 5(2) of the ALR Act, which counsel characterised as “the lead provision”. Counsel did not elaborate the submission that s 5(2) is “the lead provision”.

213    It is convenient to set out the terms of s 5(2):

(2)    A Land Trust:

(a)    shall not exercise its functions in relation to land held by it except in accordance with a direction given to it by the Land Council for the area in which land is situated; and

(b)    where such a direction is given to it – shall take action in accordance with that direction.

214    Counsel emphasised the requirement for a Land Trust to act in accordance with a direction of a Land Council and submitted that this was sufficient authority for Ms Rucioch’s action. In support of this submission, counsel referred to Northside Developments in which Brennan J said, at 171-2:

A company, being a corporation, is a legal fiction. Its existence, capacities and activities are only such as the law attributes to it. The acts and omissions attributed to a company are perforce the acts and omissions of natural persons. A company is bound by an act done when the person who does it purports thereby to bind the company and that person is authorized to do so or the doing of the act is subsequently ratified. … Authority for the purpose is derived either directly from the constitution of the company or from some antecedent act (typically, a resolution of the governing body) which is itself binding on the company.

(Emphasis added)

215    The submission seemed to be that, because s 5(2) was “the lead provision”, it controlled the operation of other provisions in the ALR Act relating to conduct by a Land Trust.

216    In our view, this submission faces an insuperable difficulty. That is that s 4(5) does not require only that there be authority for the affixing of the seal of a Land Trust to a document. It specifies in addition the form in which the authority is to be given (in writing and signed by a minimum number of trust members). The submission of counsel for the CLC and the AALT did not explain how this express requirement as to the form of the authority may be satisfied by the resolution of a Land Council, when there have not been any authorising signatures by members of the Land Trust in question. Describing s 5(2) as a “lead provision” does not advance the matter because s 4(5) cannot be regarded as subordinate to s 5(2). Instead, the two provisions can operate together harmoniously.

217    The inappropriateness of regarding s 5(2) as a controlling provision is made apparent by the inclusion in the ALR Act of a mechanism for the resolution of a deadlock should the members of a Land Trust fail to act in accordance with a direction of a Land Council. Section 8 provides:

8 Termination of appointment of members of Land Trusts

Where the Land Council for the area in which a Land Trust holds, or is established to hold, land requests the Minister, in writing, to remove a member of the Land Trust on the ground that the member has, in the opinion of the Land Council, failed properly to perform the duties of his or her office, the Minister shall, if the Minister is satisfied that the request is reasonable, terminate the appointment of the member.

The presence of s 8 means that it is not necessary to construe s 4(5) as being in some way confined by, or subordinate to, s 5(2).

218    Accordingly, the first submission of counsel for the CLC and the AALT cannot be upheld.

Second submission: the effect of the authorities signed on 11 November 2016

219    Counsel’s second submission was that the authorities signed on 11 November 2016 amounted to a ratification of the earlier affixation of the seal on the instruments. He submitted that it was immaterial that the seal had been affixed by Ms Rucioch because each document recorded that the seal had been affixed in the presence of the AALT Chairperson and a member of the Land Trust at the time they signed the instruments. That was in accordance, so counsel submitted, with the terms of the authorities given on 11 November 2016 and each of those authorities “related back” to the date of the earlier affixing of the seal. Counsel also submitted that s 4(4) contemplates that the Land Council’s staff will affix a seal and emphasised that the AALT members had given the respective authorities before the instruments had been delivered to the grantees.

220    In support of the submission concerning ratification, counsel claimed that the primary judge had accepted, at J[426], that the authorities given on 11 November 2016 “would ratify affixation of the seal on 19 October 2016, but only by the Chair and member, not by the CLC staff member, Ms Rucioch”.

221    With respect to counsel, that particular submission is not borne out by the primary judge’s reasons. At J[426], the primary judge said (relevantly):

It is clear there was no compliance with the terms of s 4(5) of the Land Rights Act in the way the seal of the AALT has been affixed to the impugned leases. It is clear that the purported retrospective ratification by the written authorisations to which I refer at [336(2)] can have no validating effect because those authorisations are not directed to the person who affixed the seals: namely, Ms Rucioch. Even if one were to accept the CLC’s argument that the CLC can, purportedly in compliance with s 4(5), retrospectively ratify (or authorise) the affixing of a seal to a document by which a Land Trust purports to grant an estate or interest in land, the difficulty here is that the retrospective authorisations did not ratify the affixing of the seals by Ms Rucioch. ...

222    Moreover, later the primary judge said:

458    … Contrary to the CLC’s submissions, there is a clear temporal limitation to be implied in s 4(5) for it to serve its statutory purpose. A seal is evidence of authority to contract (and thus to convey), and without a seal affixed in accordance with law there is no authority to contract (or convey). The seal is to be affixed at the time the contract is entered into: here, when the leases and licence are executed on behalf of the Land Trust. Either at that point in time, there was the requisite authority to affix a seal under s 4(5) and bind a Land Trust, or there was not. In my opinion, that is the way s 4(5) is intended to operate.

459    … I do not accept the CLC’s contention that a later authority purportedly given under s 4(5) and after execution of a contract, would suffice. Given the purpose of a seal, either the authority to contract exists, or it does not. …

223    As indicated earlier, we consider that it was not necessary for the authorities to be expressed in terms permitting specified individuals to affix the common seal of the AALT, but it was open to the AALT members to give authorities in this form, and that is what they did.

224    In our view, the authorities signed on 11 November 2016 cannot be regarded as ratifactory of Ms Rucioch’s affixing of the seal. First, the manner in which s 4(5) is expressed indicates that it speaks prospectively. That is to say, the written authority signed by the requisite minimum of Land Trust members must precede the affixing of the seal. The term “is to be affixed” uses the word “is” as an auxiliary verb with the passive infinitive “to be fixed”. That is, it expresses “an appointed or arranged future action; (hence also) expressing necessity, obligation, duty, fitness or appropriateness”: (Online Oxford English Dictionary cl iv.18(e) under the entry for “be”).

225    In any event, there is no indication in the written authorities themselves that they were intended to have retrospective effect. Instead, they are expressed in the present tense (“authority is hereby given”) and there is no reference at all to a previous affixation of the seal to any documents. In fact, there is no indication in the authorities that the members signing them (who had been appointed as members of the AALT only eight days previously) were even aware that the common seal had previously been affixed to documents without authority in accordance with s 4(5). There is nothing on the face of the authorities to indicate an intention that they were to have ratificatory effect.

226    Further, the authorities authorised only the Chairperson and an Executive Member to affix the seal. There was no authority to Ms Rucioch, whether by name or by position description, to affix the seal. There was no indication in the evidence that, in affixing the seal herself, Ms Rucioch purported to act as an agent of the Chair or an Executive Member, or even that she had sought their approval to affix the seals before doing so. She explained that she had affixed the seals to each document “although at that time there was no separate authority from the members of the Trust [and] I did this because I was then unfamiliar with the process, as this was the first CLC Executive Committee meeting that I had attended”.

227    Accordingly, even if, contrary to our view, it be permissible for the members of a Land Trust to ratify retrospectively an earlier unauthorised affixing of the Trust’s seal, that did not occur in the present case. The primary judge was correct to so hold.

228    We add that, contrary to counsel’s submission, s 4(4) of the ALR Act does not contemplate that it will be a member of the Land Council’s staff who will affix the Trust’s seal. Section 4(4) is concerned only with the custody of the seal, and not the identity of the persons who may affix the seal when it is produced from that custody.

Third submission: the indoor management rule

229    Counsel’s third submission sought to invoke the common law indoor management rule concerning companies. The submission, which was not developed, seemed to be that, in the absence of any matter suggesting irregular execution of an instrument then, as between a Land Trust and a grantee who has no notice of an irregularity, the execution is valid.

230    It was not suggested that the common law indoor management rule has been displaced by its statutory counterparts in ss 128 and 129 of the Corporations Act 2001 (Cth), and there is authority that the common law rule may apply to circumstances in which the predecessors of ss 128 and 129 did not: Australian Capital Television Pty Ltd v Minister for Transport and Communications (1989) 86 ALR 119 at 157-8.

231    In our view, this third submission cannot be accepted. We uphold the submission of the appellants (the cross-respondents on the cross-appeal) that the common law indoor management rule concerning the rights inter partes of contracting parties is of no assistance in the construction of s 4(5).

Fourth submission: non-compliance with s 4(5) was not invalidating

232    Counsel’s final submission was that the primary judge had erred in finding that non-compliance with the requirements of s 4(5) had the effect of invalidating the AALT’s execution of the instruments. The primary judge should have concluded, so the submission ran, that it was not a purpose of the ALR Act that an act done in breach of s 4(5) should be invalid: see Project Blue Sky at [93].

233    The submissions in support of this contention were brief. Counsel referred only to the effect on third parties if non-compliance with s 4(5) produces invalidity, the inconvenience which may result, and the difficulty which an outsider may experience in ascertaining whether there had been compliance with the internal steps. He submitted that s 4(5) goes to the manner in which effect is to be given to a direction from a Land Council, and not to the existence of the power itself.

234    Counsel did not suggest that the primary judge had misunderstood the relevant law, or the facts. Nor did he identify any particular error by the primary judge. In effect, counsel contended only that this Court should, on its evaluation, reach a different conclusion from that of the primary judge.

235    At trial, the CLC and the AALT had also referred in this context to ss 5(2) and 19(6) of the ALR Act, submitting that they supported the conclusion that non-compliance with s 4(5) was not intended to invalidate a grant.

236    The primary judge considered that a number of matters, separately and in combination, indicated a statutory intention that non-compliance with s 4(5) should result in invalidity.

237    First, s 4(3) and (5) evince a statutory intention that a Land Trust should contract by use of its common seal and prescribe the process for affixing of that seal with a view to ensuring that “a Land Trust is intentionally, formally and appropriately bound by the contractual obligations it purports to assume”, at J[430].

238    Secondly, s 4(3) provides expressly that the power of a Land Trust to acquire, hold and dispose of real and personal property is “subject to this Part”, which includes s 4(5).

239    Thirdly, the requirement in s 4(6) that courts, judges and persons acting judicially presume that the common seal of a Land Trust was duly affixed to a document is necessary only because of the legal effect obtained from use of the common seal, at J[430].

240    Fourthly, it is well established that non-compliance with a statutory provision concerning the manner in which a statutory corporation may contract may result in no binding contract. The primary judge referred at J[431] to Johnson’s Tyne Foundry Pty Ltd v President, Ratepayers and Councillors of the Shire of Maffra [1948] HCA 46; 77 CLR 544 in which Latham CJ said at 551-2:

Independently of statutory provisions, a non-trading corporation at common law was bound by the general rule that its contracts must be made under seal. But there were exceptions to this rule ... But if a statute requires that contracts of a corporation shall be made in a particular manner the statutory provisions necessarily supersede the common law. Thus in Young & Co. v. Mayor, &c., of Royal Leamington Spa it was held that where a statute provided that every contract made by an urban authority the value or amount of which exceeded £50, should be in writing and sealed, the urban authority was not bound by any contract not so made, and was not bound even by an executed contract of which the authority had the full benefit and enjoyment where that contract was not made in the prescribed manner …

(Footnotes omitted)

241    In addition, the primary judge referred, at J[434], to the passage by Seddon and others in Cheshire & Fifoot Law of Contract (11th Australian ed, 2017) at [17.71]:

Although corporations incorporated under the Corporations Act 2001 (Cth) are freed from the necessity of contracting under the corporate seal, a corporation that has not been so incorporated, for example, a statutory corporation (including a local government body), must use its seal unless there is a specific statutory exemption to be found in the relevant legislation or a common law exemption applies.

242    The primary judge noted some common law exceptions to the rules stated in Cheshire & Fifoot but it was not suggested that any of those were applicable presently.

243    Later, at J[472], the primary judge referred to s 19(6) of the ALR Act which provides that non-compliance with the requirements of subs (5) by a Land Council in giving a direction for a proposed grant, transfer or surrender of an estate or interest in land, does not invalidate the grant, transfer or surrender unless the recipient of the grant, transfer or surrender procured the direction of the Land Council by fraud. See also in this regard s 19(9). The primary judge noted that there was no counterpart provision in relation to s 4(5).

244    The primary judge also considered it unsurprising that the Parliament had imposed “a relatively high level of prescription” when what was in issue was the giving of authority to a statutory corporation to interfere with the proprietary interests of Aboriginal people, granted and recognised under the very same piece of legislation and for whose benefit the Land Trust performs its functions, at J[465].

245    In relation to potential inconvenience to third parties, the primary judge noted, at J[471], that the ALR Act is not directed to the general public but instead to the protection of Aboriginal rights and interests in land, once they have been granted. That being so, the primary judge considered that it would not be appropriate to place the “convenience” of third parties (such as lessees) ahead of the interests of traditional owners and communities. In this respect, it is apparent that the primary judge did not regard the considerations which underpin the common law indoor management rule as warranting the conclusion that non-compliance with s 4(5) does not give rise to invalidity.

246    We respectfully agree with these reasons of the primary judge. No error in them has been shown.

Conclusion on the Common Seal Issue

247    As already noted, the primary judge rejected the submission of the CLC and the AALT that s 19(6) could operate with respect to the non-compliance with s 4(5) in affixing the seal. Her Honour held that “the terms of s 19(6) simply do not engage with Pt II of the ALR Act in which s 4(5) is found”, at J[437]. As already noted, the appeal on the Common Seal Issue did not challenge the correctness of that finding.

248    For these reasons, the cross-appeal with respect to affixing of the seal must be dismissed.

The Equitable Interest Issue

249    By their notice of contention, the NT and IES contended that the originating application should have been dismissed on the independent ground that each of the NT, MRC, Congress and IES had an equitable interest, arising from their agreement with the CLC and the AALT that the respective leases and licence be granted to them.

250    The primary judge said that her finding that the direction given by the CLC on 19 October 2016 was valid meant that it was unnecessary to make a finding on this issue. That was because the AALT remained subject to the valid direction and it was required, by s 5(2), to act in accordance with that direction, at J[473]. Her Honour did say, however, that “[i]t would seem likely each of the lessees has an equitable interest arising from, at least, an agreement by the Land Trust to grant a lease to each of them”.

251    The submissions of the NT and IES in support of their notice of contention concerning this issue were made at a level of generality and, with a single exception, without reference to authority. The exception was the reference to the judgment of Wilson J in Meneling Station at 351 to support the proposition that the expression “an estate or interest in land” used throughout s 19 (including ss 19(3) and (4A)) includes an equitable interest.

252    The amended notice of contention of the CLC and the AALT did not, at least in express terms, raise the same issue. Despite that, the outline of submissions of these parties contained an argument to similar effect. Counsel for the CLC and the AALT did not develop that submission in their oral submissions.

253    The submission of the NT and the IES consisted of the following propositions:

(a)    each of the grantees had sought a lease or licence, as the case may be, and had participated in negotiations with the CLC concerning them;

(b)    after 19 October 2016, each had received the instruments which appeared on their face to have been validly executed and, in the case of MRC and Congress, they had executed the lease and the licence and had returned two of three copies to the CLC and the AALT. Counsel also referred to some oral and written communications from the CLC after 19 October 2016 which indicated that agreement had been reached on the grant of the leases and the licence, but it is not necessary to refer to them here;

(c)    these circumstances gave rise to an agreement enforceable in equity that the CLC and the AALT would complete the grants. The agreements were constituted by an offer by the grantees that the leases and licence be issued, and acceptance by the CLC and the AALT, and each was supported by valuable consideration (being the promise to pay rent);

(d)    the action of the CLC and the AALT in entering into an agreement enforceable in equity constituted the “grant” of an equitable interest to each grantee; and

(e)    accordingly, on the hypothesis that the CLC had not had the satisfaction required by s 19(5) in giving the direction on 19 October 2016, there had nevertheless been a grant of an equitable interest and that grant was not invalidated by the non-compliance by the CLC with s 19(5).

254    In short, the submission was that, even if there had been non-compliance with s 19(5), the application should have been dismissed because the grantees had an equitable interest arising from the steps taken subsequent to the giving of the direction on 19 October 2016, and the grant of that interest was not affected by the non-compliance with s 19(5).

255    The outline of the submissions of the CLC and the AALT on this issue contained the following elements:

(a)    the grant of an estate or interest in Aboriginal land derives its effect from the ALR Act, and not from the Land Title Act (NT), which provides for Torrens Title in the Northern Territory. See Northern Territory of Australia v Arnhem Land Aboriginal Land Trust [2008] HCA 29; 236 CLR 24 at [48]-[50]; Attorney General for the Northern Territory v Hand, Minister for Aboriginal Affairs (1989) 25 FCR 345 at 370-1 (Lockhart J), 402-3 (von Doussa J);

(b)    an unregistered lease (whether or not in registerable form) confers an equitable interest in land;

(c)    an equitable interest in land is an “estate or interest in land” within the meaning of that term in s 19 of the ALR Act, including ss 19(3) and (4A);

(d)    so too is a licence granted in respect of Aboriginal land - see s 19(11) of the ALR Act;

(e)    a grant for the purpose of s 19(6) is not confined to the creation and completion of a legal estate by analogy to general law principles. Instead, as the primary judge had found at J[442], the determination of whether there has been a grant to which s 19(6) can operate, turns on the statutory scheme;

(f)    the definition of the term “grant” in s 3(1) of the ALR Act indicates that it includes “the doing of any action by reason of which an interest arises”;

(g)    this has the consequence that a grant to which s 19(6) applies includes an agreement to grant an estate or interest in land;

(h)    further, s 19 and in particular s 19(6), are directed to the act of a Land Trust in making a grant, and to the interest created by that act, relying on Gnych v Polish Club Ltd [2015] HCA 23; 255 CLR 414; Willmott Growers Group Inc v Willmott Forests Limited (Receivers and Managers Appointed) (In Liquidation) [2013] HCA 51; 251 CLR 592 at [61];

(i)    accordingly, there was a grant by the agreement reached between the parties; and

(j)    it was immaterial that the NT and the IES (unlike the MRC and Congress) had not executed the instruments because there was an implicit agreement that each would execute the instrument in order to complete the grant.

256    The appellants made a detailed submission in response.

257    We consider that it is unnecessary and inappropriate to express a concluded view on the Equitable Interest Issue. A number of matters indicate that that is so. First, the primary judge did not express a concluded view on the issue, saying only that it was “likely” that each of the lessees had an equitable interest. Secondly, the Court did not receive full argument in support of the notice of contention of the NT and IES. Thirdly, the determination of the contention lacks utility by reason of the primary judge’s finding, which we uphold, that the AALT remains subject to a valid direction under s 19(5) and, by s 5(2), is required to act in accordance with that direction. It can do so by executing the instruments afresh and affixing the common seal in the manner required by s 4(5).

The s 19(6) Issue

258    By ground 1 in their amended notice of contention, the CLC and the AALT contended that, even if the CLC had not complied with s 19(5) of the ALR Act in giving the direction to the AALT, s 19(6) had the effect that the non-compliance did not invalidate the grants. Accordingly, the primary judge could have dismissed the amended originating application for this independent reason and her judgment should be affirmed on that basis.

259    The primary judge noted that s 19(6) of the ALR Act had been a critical aspect of the CLC’s defence to the appellants’ claim, at J[196]. It had contended that, even if the shortcomings in its direction to the AALT alleged by the appellants were established, s 19(6) had the effect of validating what had occurred, so that the appellants should in any event be denied relief, at J[197].

260    The primary judge considered that it was neither necessary nor appropriate for her to express a concluded view concerning the competing submissions of the parties about the proper construction and application of s 19(6). This was because her Honour had not upheld any of the appellants’ grounds of review apart from their claim concerning the affixing of the seal and the primary judge considered it preferable for the proper construction of s 19(6) to await an occasion on which the Court makes a clear finding of non-compliance with s 19(5), at J[476]-[477].

261    Further, the primary judge concluded that it was unnecessary for her to consider whether s 19(6) does not operate to protect a direction by a Land Council under s 19(5) from review under the ADJR Act and the grant of relief under that Act, at J[478]. The primary judge said that consideration of that issue should await a case in which it needs to be determined.

262    We respectfully agree and take the same approach.

Conclusions

263    For these reasons, both the appeal and the cross-appeal should be dismissed. It is not necessary for the Court to express concluded views on the issues raised by the respective notices of contentions, save that, as noted above, the primary judge erred in stating at J[323] that Mr Gosford did not attend the Committee meeting on 19 October 2016.

264    The Court’s tentative view is that costs should follow the event in respect of both the unsuccessful appeal and the cross-appeal but there may be an issue whether the appellants should have to pay the costs of the NT and IES as well as the costs of CLC and AALT in the appeal. The parties should seek to agree orders as to costs, and any other consequential matters arising from these reasons for judgment, within seven days hereof. If they are unable to reach agreement, each should file and serve brief written submissions in support of their respective positions within that time.

265    Final orders will be made on the papers and without further oral hearing.

Associate:

Dated:    24 January 2019

SCHEDULE OF PARTIES