IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION No VG 417 of 1994
GAGUDJU ASSOCIATION
Applicant
-and-
NORTHERN LAND COUNCIL
Respondent
Coram: Olney J
Place: Melbourne
Date: 10 May 1995
MINUTE OF ORDERS
THE COURT ORDERS THAT:
1. Paragraphs 3 and 4 of the application be dismissed.
2. The question of costs be reserved.
3. The directions hearing be adjourned to 23 June 1995.
AND DIRECTS THAT:
a) the applicant have leave within 14 days to file and serve a written submission on the question of costs; and
b) the respondent have leave within 10 days from the receipt of the applicant's submission to file and serve a submission in reply.
NOTE: Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION No VG 417 of 1994
GAGUDJU ASSOCIATION
Applicant
-and-
NORTHERN LAND COUNCIL
Respondent
Coram: Olney J
Place: Melbourne
Date: 10 May 1995
SUPPLEMENTARY REASONS FOR JUDGMENT
These reasons are supplementary to reasons for judgment (the original reasons) published in this matter on 13 April 1995.
No orders were made on the occasion of the publication of the original reasons although I did state my opinion that paragraphs 1, 2 and 4 of the application should be dismissed and certain paragraphs of the statement of claim should be struck out.
In order to provide the parties with the opportunity to be heard in relation to the final form of the orders to be made the matter was adjourned to 21 April 1995.
When the matter came before me on 21 April 1995 my attention was drawn to a factual error I had made which affected my reasoning and conclusion in respect of my decision to dismiss paragraph 4 of the application. In the circumstances I indicated that I would make no order in relation to paragraph 4 but would reserve that matter for further consideration, a course which both parties agreed was appropriate. The parties also agreed that subject to the filing of further short evidence (as to which there would be no contest) I should proceed to deal with paragraphs 3 and 4 of the application and the basis of a final trial of the issues raised therein. The further evidence has now been filed.
THE RELIEF SOUGHT
In paragraphs 3 and 4 of the application the applicant seeks
3. A declaration that the respondent is not entitled to refuse to pay moneys payable to the applicant pursuant to section 35 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).
4. An injunction restraining the respondent from failing to pay to the applicant moneys payable to it under section 35 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).
THE STATUTORY SCHEME
Section 62(1) of the Aboriginal Land Rights (Northern Territory) Act 1976 (the Act) establishes the Aboriginal Benefit Trust Account (ABTA). By operation of s 63(2) payments are made into the ABTA from time to time out of the Consolidated Revenue Fund of amounts equal to the amounts of any royalties received by the Commonwealth or the Northern Territory in respect of a mining interest in Aboriginal lands. Further, where mining operations for minerals are carried on under the Atomic Energy Act 1953 or any other act on Aboriginal land by, or on behalf of, the Commonwealth, the Northern Territory or an authority established by or under the law of the Commonwealth or of the Northern Territory, certain payments determined in accordance with the Act are paid into the ABTA out of the Consolidated Revenue Fund (s 63(4)). Payments made to the ABTA under ss 63(2) and (4) are for convenience referred to as royalty equivalents.
Section 64 provides for the payment of moneys out of the ABTA. From time to time 40% of the royalty equivalents is paid out for distribution among the land councils established under the Act in such proportions as the Minister determines (s 64(1)) and from time to time payments are made to each land council in the area in which a mining interest referred to in s 63(2) is situated, or mining operations referred to in s 63(4) are being carried on, of an amount equal to 30% of any royalty equivalents paid in respect of that mining interest or those mining operations as the case may be (s 64(3)).
The application of royalty equivalents paid to a land council is regulated by s 35. Subsection 35(1) deals with money paid under s 64(1) and s 35(2) deals with money paid under
s 64(3). Section 35 (so far as relevant) provides:
35(1) ...
(2) Moneys paid to a Land Council under subsection 64(3) shall be paid, within 6 months of their receipt by the Land Council, to:
(a) Aboriginal
Councils the areas of which are, whether in whole or in part, included in the
area affected by the mining operations
by reason of which the moneys have been paid to the Land Council; and
(b) any Incorporated Aboriginal Associations the members of which live in, or are the traditional Aboriginal owners of, the area affected by those mining operations;
in such proportions as the Land Council determines.
(3) ...
(4) ...
(5) Where a Land Council has not, before the expiration of the period specified in subsection (1), (2) or (3), disbursed any amount that it is, under that subsection, required to disburse because it has not been able to make a determination under that subsection, the Land Council shall, as soon as practicable after the expiration of that period, but not later than one month after the expiration of that period, give to the Minister a report, in writing, setting out its reasons for not having made that determination.
(6) Where the Minister receives a report from a Land Council under subsection (5), the Minister may, after having regard to the matters set out in that report and to any other matters that the Minister considers relevant, make a determination in relation to the amount to which the report relates, being a determination that could have been made by the Land Council, and, upon the Minister's so doing:
(a) the determination shall have effect, for all purposes of this Act, as if it were a determination that had been duly made by the Land Council; and
(b) the Land Council shall cause the amount to which the determination relates to be disbursed forthwith in accordance with the determination
(7) ...
(8) Each amount of money that is paid to a Land Council under subsection (2), (3) or (4) shall be held in trust for the bodies to which or persons to whom that amount is eventually to be paid in accordance with this section until that amount is so paid.
(9) Where an Aboriginal Council, an Incorporated Aboriginal Association or the traditional Aboriginal owners of an area of Aboriginal land to which or to whom an amount of money would, but for this subsection, be required to be paid by a Land Council in accordance with subsection (1), (2), (3), (4) or (6) requests or request to the Land Council, in writing, before that amount is so paid, to hold, or continue to hold, that amount in trust for it or for them, the Land Council shall, notwithstanding that subsection, hold, or continue to hold, that amount in trust accordingly until that request is revoked.
(10) While an amount of money referred to in subsection (7), (8) or (9) is held in trust in accordance with that subsection, the Land Council shall cause that amount to be invested in accordance with section 62B of the Audit Act 1901.
(11) Where a Land Council pays out an amount of money that it has held in trust and invested in accordance with this section, the Land Council shall, so far as is practicable, pay to the body or person to whom that amount is paid the interest received by the Land Council in respect of the investment of that amount.
(12) ...
THE FACTS
The following facts are common cause:
The respondent is a land council as defined in the Act.
On 8 February 1995 the respondent received $411,082.20 from the ABTA pursuant to s 64(3), being royalty equivalent payments in respect of the Ranger uranium mine (the mining operations). On 2 March 1995 the respondent received a further $11,609.52, being a refund of mining withholding tax. (These sums are hereafter collectively referred to as the s 64 payments).
The mining operations are carried on in the area of the respondent.
The applicant is an Incorporated Aboriginal Association the members of which live in, or are the traditional Aboriginal owners of, the area affected by the mining operations.
There are no relevant Aboriginal Councils of the type described in s 35(2)(a).
The applicant is the only Incorporated Aboriginal Association to which s 35(2) applies in respect of the s 64 payments.
On 20 March 1995 the respondent paid the applicant the sum of $116,000 pursuant to s 35(2).
The respondent currently holds $306,691.72 (and interest) on trust under s 35.
The applicant and the respondent have been in dispute over the matters to which paragraphs 1 and 2 of the application relate and to which detailed reference is made in the original reasons.
By letter dated 23 November 1994 the Director of the respondent wrote to the applicant's solicitors stating, inter alia:
I remain committed to resolution of the traditional owners' concerns and have placed a hold on the distribution of any royalty - equivalent sums arising from the Ranger project until after the dispute between the traditional owners and the Association is considered at a general meeting of the Association - which I understand is to be held very soon - and a further meeting of traditional Aboriginal owners is held. It is imperative that the Gagudju Association's membership become aware of this situation as soon as possible and at the latest at the next general meeting of the Association.
At a meeting of the respondent held at Katherine on 8 December 1994 the respondent resolved:
That distribution of statutory royalty equivalent payments arising from the Ranger Uranium Mine and payments under the related mining agreement which have to date been paid to the Gagudju Association be withheld until:
The Association agrees in writing to and fully co-operates to the satisfaction of the Director and the Executive Members with the undertaking of a full review of the Association (as requested by the Mirrar Kundjey'mi and as proposed in earlier NLC correspondence to the Association).
And, if the Association does not agree and co-operate, until the next Full Land Council meeting.
On 23 November 1994 and on 8 December 1994 the respondent did not hold any moneys to which s 35(2) relates.
THE ISSUES
The case put by the applicant can be summarised thus: The respondent holds such money as it receives pursuant to s 64(3) upon trust for the bodies to which that money is eventually to be paid in accordance with s 35 until the amount is so paid (s 35(8)). The applicant is the only existing body to which the s 64 payments may be paid pursuant to s 35(2). On 23 November 1994 the respondent made a decision not to pay future s 64 payments to the applicant unless the applicant submitted itself to the respondent's requirements. By operation of ss 35(2) and (8) the balance of the s 64 payments is held by the respondent upon trust for the applicant and the applicant is, and has been since the receipt of such payments by the applicant, entitled to be paid same.
The respondent says that its obligation to make payments pursuant to s 35(2) may be exercised at any time within 6 months of the receipt of the s 64 payments notwithstanding that at the time of their receipt there may exist only a single council or association of the type referred to in s 35(2)(a) and (b). It says that it may exercise its discretion under the section in favour of any other relevant council or association which may come into existence within the 6 month period referred to in s 35(2) and it has no obligation to pay the money to any particular beneficiary prior to the expiration of that period.
I do not understand the respondent to assert that it has the right to retain s 64 payments beyond 6 months from their receipt and in my opinion neither the letter of 23 November 1994 nor the resolution of 8 December 1994 can be construed as an assertion to that effect. The letter was written and the resolution was passed at times when no moneys to which s 35(2) relates were held by the land council. The course of conduct foreshadowed cannot be regarded as an indication that the respondent intended to act in a manner inconsistent with its obligations under s 35.
THE OBLIGATION CREATED BY S 35 (2)
A land council's functions in relation to money paid to it pursuant to s 64(3) are to invest the money, determine the proportions to be paid to bodies entitled to receive it and to disburse the money and interest accordingly.
The Act is silent as to whether, in a case where there is only one existing body which satisfies the criteria of s 35(2)(a) and (b) the land council may arbitrarily delay making payment to that body for up to 6 months.
There would seem to be ample justification for the view that where there are two or more bodies potentially entitled to receive payments under s 35(2) the entitlement does not arise until the land council, or in a case to which s 35(6) applies the Minister, has made a determination as to the proportions to be paid to each body.
The Act is not entirely silent as to the responsibility of a land council to pay out funds following a determination. In the case of a determination by the Minister pursuant to 35(6), the land council is required to cause the amount in question to be disbursed forthwith. There being no such imperative attaching to payments to be made following a determination by a land council it may well be the case that Parliament has made a deliberate distinction between the two cases. In every case of a determination by the Minister the period of 6 months referred to in s 35(2) will have expired and it is not surprising that different conditions would apply in such a case. The section is susceptible to a construction that when a land council makes a determination it is under no obligation other than to pay the beneficiaries within 6 months of the receipt of the money from the ABTA.
A land council has no proprietary interest in money paid to it pursuant to s 64(3) other than as trustee. Immediately upon receipt of the money the land council is required to invest it (s 35(8)). Until the money is disbursed, the land council holds it (and any interest) as trustee for the bodies to which the amount is eventually to be paid in accordance with the section. This provision is consistent with the notion that the land council's determination identifies the body to which the money is eventually to be paid. It says nothing as to when it is to be paid. Indeed, the use of the word "eventually" suggests that there may be a delay between the determination and the payment.
A further question which arises in the construction of s 35(2) is whether a land council is required to make a determination if there is only one body to which it is required to pay the money it has received. Although the Act does not address this question, I think that in each case it is necessary for a land council to first address the question of which, if any, councils or associations meet the criteria of s 35(2)(a) and (b) and then to determine the proportion of the moneys received to be paid to such body or bodies as meet those criteria. In my view no entitlement to the money is created before a determination is made. But once a determination is made the land council becomes obliged to pay the money in accordance with the determination. However, provided a determination is made and the money paid to the appropriate body or bodies within 6 months of its receipt by the land council, the statutory duty created by s 35(2) will have been observed.
It may be that with the wisdom of hindsight it is possible to detect inadequacies in this legislation, but if there are defects it is for Parliament to correct them. The language used in s 35(2) is uncomplicated. Its literal meaning is clear. There is nothing in any other provision of the Act to suggest that the words used are not to be understood in their ordinary sense and in some respects the other provisions confirm that the ordinary meaning of the words is intended.
CONCLUSION
I am of the opinion that in the facts of this case, insofar as 6 months has not expired since the respondent received the
s 64 payments, it is not presently obliged to make any payment to the applicant or to any other body pursuant to s 35(2) nor is it in default of any of its obligations under s 35(2). As the respondent is not presently obliged to pay the money in question to the applicant, it is (in the words of paragraph 3 of the application) entitled to refuse to pay the same to the applicant. Nothing in the respondent's conduct justifies an apprehension that it will fail to fulfil its proper obligations at the appropriate time. Accordingly, there is no warrant for granting the relief sought in paragraph 3 and 4.
Paragraphs 3 and 4 of the application will be dismissed. The question of costs will be reserved. The applicant has leave within 14 days to file and serve a written submission on the question of costs and the respondent has leave within 10 days from the receipt of the applicant's submission to file and serve a submission in reply.
I certify that this and the preceding 10 pages are a true copy of the Reasons for Judgment of the Honourable Justice Olney
Associate:
Dated:
Heard: 10 March 1995 and 21 April 1995
Place: Melbourne
Supplementary
Reasons published:10 May 1995
Appearances:
Mr W. Sofronoff QC and Mr T. Matthews (instructed by Barwicks) appeared for the applicant.
Mr J. Sher QC and Mr R. Blowes (instructed by Brett Midena) appeared for the respondent.
