FEDERAL COURT OF AUSTRALIA
Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2014] FCA 25
| IN THE FEDERAL COURT OF AUSTRALIA | |
| DATE OF ORDER: | |
| WHERE MADE: |
THE COURT ORDERS THAT:
1. The application, as amended, be dismissed.
2. On or before 17 February 2014, the applicant and the first, fourth and fifth respondents file a minute of order as to costs (if agreed) or brief written submissions in respect of costs, failing which the applicant pay the first, fourth and fifth respondents’ costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
| VICTORIA DISTRICT REGISTRY | |
| GENERAL DIVISION | VID 97 of 2012 |
| BETWEEN: | SWISS ALUMINIUM AUSTRALIA LIMITED (ACN 008 589 099) First Applicant GOVE ALUMINIUM LIMITED (ACN 000 640 353) Second Applicant |
| AND: | DJINIYINI GONDARRA First Respondent NORTHERN LAND COUNCIL Second Respondent ARNHEM LAND ABORIGINAL LAND TRUST Third Respondent |
| JUDGE: | KENNY J |
| DATE OF ORDER: | 3 February 2014 |
| WHERE MADE: | MELBOURNE |
THE COURT ORDERS THAT:
1. The application be dismissed.
2. On or before 17 February 2014, the parties file a minute of order as to costs (if agreed) or brief written submissions in respect of costs, failing which the applicants pay the respondents’ costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
| IN THE FEDERAL COURT OF AUSTRALIA | |
| VICTORIA DISTRICT REGISTRY | |
| GENERAL DIVISION | VID 864 of 2011 |
| BETWEEN: | DJINIYINI GONDARRA Applicant |
| AND: | MINISTER FOR FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS First Respondent SWISS ALUMINIUM AUSTRALIA LIMITED (ACN 008 589 099) Second Respondent GOVE ALUMINIUM LIMITED (ACN 000 640 353) Third Respondent NORTHERN LAND COUNCIL Fourth Respondent ARNHEM LAND ABORIGINAL LAND TRUST Fifth Respondent GALARRWUY YUNUPINGU Sixth Respondent DJALU GURRUWIWI Seventh Respondent BAKAMUMU MARIKA Eighth Respondent |
| JUDGE: | KENNY J | |
| DATE: | 3 February 2014 | |
| PLACE: | MELBOURNE | |
| IN THE FEDERAL COURT OF AUSTRALIA | ||
| VICTORIA DISTRICT REGISTRY | ||
| GENERAL DIVISION | VID 97 of 2012 | |
| BETWEEN: | SWISS ALUMINIUM AUSTRALIA LIMITED (ACN 008 589 099) First Applicant GOVE ALUMINIUM LIMITED (ACN 000 640 353) Second Applicant | |
| AND: | DJINIYINI GONDARRA First Respondent NORTHERN LAND COUNCIL Second Respondent ARNHEM LAND ABORIGINAL LAND TRUST Third Respondent | |
REASONS FOR JUDGMENT
1 These reasons for judgment are given in two proceedings, namely, VID 864 of 2011 (“the Gondarra application”) and VID 97 of 2012 (“the Rio Tinto Alcan application”). The two matters were heard together.
the gondarra application
2 In a (further) amended originating application for judicial review filed on 6 March 2013, the applicant in VID 864 of 2011, Dr Djiniyini Gondarra, sought judicial review of two decisions of the first respondent (“the Minister”) made on 26 May 2011, in which the Minister decided to:
(1) consent, under s 19(4A) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (“the Land Rights Act”), to the fifth respondent, the Arnhem Land Aboriginal Land Trust (“the Land Trust”), granting a lease entitled “Residue Disposal Area” dated 26 May 2011 (“the Lease”) over land in the Gove Peninsula in the Northern Territory (“the Relevant Land”) for red mud disposal; and
(2) approve, under s 27(3) of the Land Rights Act, the fourth respondent, the Northern Land Council (“the NLC”) entering into, and the NLC permitting the Land Trust to enter into, a contract entitled “RTA Gove Traditional Owners Agreement” dated 26 May 2011 (“the Agreement”).
I refer hereafter to the first decision as the “consent” and the second decision, as the “approval”. Collectively, I refer to the consent and the approval as “the challenged decisions”.
3 The application was made under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”) and sought various orders, including that the challenged decisions be set aside with effect from the date they were given, and declarations that the Lease and the Agreement were void.
4 It was not in issue that the challenged decisions were decisions to which the ADJR Act applied and that Dr Gondarra was, relevantly, “aggrieved” by the challenged decisions, within the meaning of s 3(4) of the ADJR Act. In written submissions, the Land Council and the Land Trust specifically accepted that Dr Gondarra was a member of the Yolngu clan known as Golumala; and that the Golumala clan included Aboriginals interested in the Relevant Land and was an Aboriginal group that may be affected by the grant of the Lease and the making of the Agreement. These facts were also agreed between the parties to the Gondarra application. Essentially, the respondents disputed that Dr Gondarra had any entitlement to relief.
5 Dr Gondarra stated at an early stage in the proceeding that he did not contest that the NLC had complied with its statutory duties under the Land Rights Act in relation to the grant by the Land Trust of the Lease and the entry by the NLC and the Land Trust into the Agreement. His challenge was solely directed to the Minister’s decisions, as set out above. No challenge was directed to any exercise of power by the Land Trust. Save with respect to a foreshadowed interlocutory application, discussed elsewhere, the eighth respondent played no active part at the hearing of the Gondarra application. The sixth and seventh respondents filed submitting notices on 6 December 2011.
6 It is also worth noting at the outset that, at one stage in this proceeding, Dr Gondarra alleged that his group (the Golumala clan or, as Dr Gondarra claimed, a collectivity of clans known as the Dhurili Nation) were traditional Aboriginal owners of the Relevant Land. The NLC, the Land Trust and the eighth respondent disputed these allegations and filed evidence in response to Dr Gondarra’s evidence in support of his claim. Ultimately, however, the parties agreed that the issues raised by the Gondarra application were to be determined without my own consideration of whether or not Dr Gondarra, the Golumala clan or the Dhurili Nation were the traditional Aboriginal owners of the Relevant Land. None of the evidence as to ownership was tendered, or sought to be tendered, at the hearing.
7 For the reasons stated below, I would dismiss the Gondarra application on the basis that none of the alleged errors were established. As stated in his application as amended on 6 March 2012, Dr Gondarra’s grounds were as follows:
1. The Minister’s approval involved an error of law or was otherwise contrary to law by reason that her state of satisfaction was irrational, illogical and not based on findings or inferences of fact support by logical grounds. Based on the information before her, the Minister could not have been satisfied that the NLC complied with any duty imposed on it by subsection 23(3) of the [Land Rights Act because the Minister]:
(a) was not provided with any information explaining the basis for the NLC’s satisfaction as to these matters, including information indicting what (if anything) such communities and groups had been told about the proposed Lease and Agreement;
(b) was notified that the authorised representatives of the Dhurili Nation had never been provided with a copy of the proposed Lease or Agreement (even in a redacted form), nor had the key terms explained to them; and
(c) was notified that the Dhurili Nation believed that proper consultation had not in fact been undertaken by the NLC.
2. The making of the Minister’s decision to consent was an improper exercise of the power conferred on her by s 19(4A) of the [Land Rights Act] by reason that she failed to take into account relevant considerations, being the questions of whether:
(a) the NLC was satisfied that it had consulted with any Aboriginal community or group that may be affected by the proposed Lease and Agreement, and that those communities and groups had had an adequate opportunity to express their views to the NLC; and
(b) the NLC was satisfied that terms and conditions of the proposed lease were reasonable.
3. The making of the Minister’s decision to give her approval was an improper exercise of the power conferred on her by s 27(4) of the [Land Rights Act] by reason that she failed to take into account a relevant consideration, being the question of whether the NLC complied with any duty imposed on it by subsection 23(3) of the [Land Rights Act].
4. A breach of the rules of natural justice occurred in connection with the making of the Minister’s decision to give her consent and approval, by reason on the Minister’s failure to:
(a) provide the authorised representatives of the Dhurili Nation a fair and reasonable opportunity to be heard despite creating a legitimate expectation that they would be afforded such an opportunity;
(b) disclose to the authorised representatives of the Dhurili Nation the substance of material that was adverse to their interests;
(c) provide a copy of the proposed Lease and Agreement to the authorised representatives of the Dhurili Nation; and
(d) properly consider materials provided to her by the authorised representatives of the Dhurili Nation.
5. The Minister’s consent involved an error of law or was otherwise contrary to law by reason that she concluded that there were no matters that she was required to consider in deciding whether to give her consent.
6. The making of the Minister’s decisions to give her consent and approval were improper exercises of the power conferred on her by s 19(4A) and 27(4) by reason that she took into account irrelevant considerations, being the question whether her consent and approval would have “broader economic benefits … on the local people and economy, on the Northern Territory economy and on the Australian economy”.
Factual background
8 An amended statement of facts agreed by all parties to the Gondarra application (“the agreed statement of facts”) was filed prior to the hearing. The following parts of the agreed statement provide some basic factual context (although the relevance of some agreed facts was not agreed).
2. The applicant is an Aboriginal man from the Golumala clan who, as a member of that clan:
2.1 is an Aboriginal interested in the Land referred to at [23] below;
2.2 belongs to an Aboriginal group that may be affected by the “RTA Gove Traditional Owners Agreement” referred to at [21] below (the Agreement) and the “Residue Disposal Area Lease” referred to at [22] below (the Lease);
within the meaning of s 23(3) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the ALRA).
3. There is a disagreement between the applicant and the fourth respondent, the Northern Land Council (the NLC), with respect to whether the applicant has an interest in the Land beyond that identified in paragraph 2 above and whether the applicant belongs to an affected Aboriginal group beyond that identified in paragraph 2 above.
4. The first respondent is the Minister for Families, Community Services and Indigenous Affairs (the Minister).
5. The second respondent, Swiss Aluminium Australia Limited (Swiss Aluminium), is a party to the Lease and to the Agreement.
6. The third respondent, Gove Aluminium Limited (Gove Aluminium), is a party to the Lease and to the Agreement.
7. The fourth respondent, the NLC, is established under s 21 of the ALRA. It is a party to the Lease and to the Agreement.
8. The fifth respondent, the Arnhem Land Aboriginal Land Trust (the Land Trust), is established under s 4 of the ALRA. It is a party to the Lease and to the Agreement.
9. The sixth respondent, Galarrwuy Yunupingu, is an Aboriginal man from the Gumatj clan. He is a party to the Agreement on behalf of the Gumatj clan.
10. The seventh respondent, Djalu Gurruwiwi, is an Aboriginal man from the Galpu clan. He is a party to the Agreement on behalf of the Galpu clan.
11. The eighth respondent, Bakamumu Marika, is an Aboriginal man from the Rirratjingu clan. He is a party to the Agreement on behalf of the Rirratjingu clan.
The Land and Gove operation
12. Swiss Aluminium and Gove Aluminium (together, the Rio Tinto Alcan parties) own the Gove bauxite mine, alumina refinery, port facilities, power station and ancillary assets on the Gove Peninsula in the Northern Territory (the Gove Operation). A related company of the Rio Tinto Alcan parties, Alcan Gove Pty Ltd, is the operator of the Gove Operation.
13. The Gove Operation started in about 1969, with production commencing in 1972. It employs over 900 employees and engages a further 600 contractors. It supports the nearby town of Nhulunbuy, which was built to service the Gove Operation, and surrounding communities of over 5,000 people. It also provides the water and electricity supply for Nhulunbuy and surrounding communities.
14. Production figures for the Gove Operation for 2010 were 7.19 million tonnes of mined bauxite and 2.473 million tonnes of alumina (an intermediate product in the manufacture of aluminium).
15. The commissioning of an expansion project to increase the alumina production capacity of the refinery that forms part of the Gove Operation commenced in 2007. The Rio Tinto Alcan parties incurred capital costs in excess of $3 billion in relation to that expansion project.
16. The Gove Operation is located on a special mining lease and a number of special purpose leases. All of the leases were originally granted between 1969 and 1976 pursuant to the Mining (Gove Peninsula Nabalco Agreement) Act 1968 (NT) and the Gove Agreement referred to therein. All of the said leases (except the lease the subject of this proceeding) were recently renewed by the Northern Territory Government.
17. Upon the enactment of the ALRA, the areas of land covered by the leases later became the subject of deeds of grant of an estate in fee simple held in escrow by the NLC pursuant to ss 10(2) and 12(1)(b) of the ALRA.
18. Special purpose lease No. 403 (SPL403) was granted in 1976, also pursuant to the Mining (Gove Peninsula Nabalco Agreement) Act 1968 (NT) and the Gove Agreement referred to therein. However, SPL403 did not contain a right of renewal and expired on 29 May 2011. The area covered by this lease was used for the purpose of disposal of residue and waste from the refinery process. As part of the process of refining bauxite into alumina, bauxite residue is produced as a waste product. It is referred to as “red mud”.
19. Following expiry of SPL403, the NLC delivered a deed of grant of an estate in fee simple in the land previously covered by SPL403 to the Land Trust.
20. Prior to the expiry of SPL403, the Rio Tinto Alcan parties negotiated the Agreement and the Lease for residue disposal over land (including the area covered by SPL403), agreement being reached in early May 2011.
21. The Agreement is dated 26 May 2011, and made between the NLC, the Land Trust, Galarrwuy Yunupingu for the Gumatj clan, Bakamumu Marika for the Rirratjingu clan, Djalu Gurruwiwi for the Galpu clan, and the Rio Tinto Alcan parties … .
22. The Lease is dated 26 May 2011 and made between the NLC, the Land Trust and the Rio Tinto Alcan parties … . On 30 May 2011, the Lease was registered with the Northern Territory Land Titles Office.
23. The Lease facilitates the disposal of red mud and other effluent and industrial treated waste from the bauxite processing plant. The environmental approvals to which the Gove Operation are subject rely on the Rio Tinto Alcan parties having an authorised location for the disposal of waste from the alumina refining process. Apart from the area the subject of the Lease (the Land), there is no authorised location for the disposal of waste from the alumina refining process.
…
The Minister's decisions
25. On 9 May 2011, the Minister received a letter from the NLC seeking her consent under s 19 of the ALRA for the Land Trust to grant the Lease and her approval under s 27(3) of the ALRA for the NLC and the Land Trust entering into the Agreement. This letter was provided to the applicant's solicitors on 10 May 2011.
26. On 26 May 2011, the Minister made decisions (together, the Minister's Decisions):
26.1 to consent, in writing, under s 19 of the ALRA, to the grant by the Land Trust of a lease over Aboriginal land for red mud disposal, the term of which lease exceeds 40 years; and
26.2 to approve, under s 27 of the ALRA, the NLC and the Land Trust entering into an agreement involving the payment of an amount exceeding $1 million.
Later on 26 May 2011, the NLC and the Land Trust executed the Agreement and the Lease.
27. In response to a request by the solicitors for the applicant for a statement of reasons under s 13 of the ADJR Act for the Minister's Decisions, the Minister provided her statement of reasons, dated 13 July 2011.
…
The applicant and his involvement in the Minister's decision making process
28. Between October 2010 and August 2011, there was correspondence between lawyers for the applicant, the Minister and her Department, and the NLC. ...
29. Neither a copy of the Lease (or a draft thereof) nor the Agreement (or a draft thereof) was provided to the applicant or his solicitors prior to 26 May 2011, when the Minister made her decisions.
9 Relevant documents, most of which were referred to in the agreed statement of facts, were included in an Application Book, comprising a volume of non-confidential material and a volume of confidential material. At the end of the hearing an exhibit book was agreed and filed.
RELEVANT legislative provisions
10 The Gondarra application turned very largely on the scheme of the Land Rights Act, which has been judicially considered on various occasions: see, for example, Risk v Northern Territory (2002) 210 CLR 392 at 408-414 [43]-[67], 425-426 [102]; Northern Territory v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24 at 84-91 [114]-[135]; and Wurridjal v The Commonwealth (2009) 237 CLR 309 at 337-339 [16]-[22].
11 Pursuant to the Land Rights Act, grants of estates in fee simple in land in the Northern Territory were made to Land Trusts established by the Minister: Land Rights Act, s 4(1). The Land Trust in this proceeding is one such Land Trust. The grants were made by the Governor-General on the recommendation of the Minister: see Land Rights Act, ss 10, 12. Land so granted is defined as “Aboriginal land”: see s 3(1). Where land was subject to an existing estate or interest, the deed of grant was to be held in escrow by the Land Council for the area in which the land was situated until the existing estate or interest had come to an end: see ss 10(2), 12(1)(b). The Relevant Land became vested in the Land Trust upon delivery of the deed of grant to the Land Trust following the expiry on 29 May 2011 of a special purpose lease.
12 Land Trusts are bodies corporate which, amongst other things, may acquire, hold and dispose of real property: Land Rights Act, s 4(3). The functions of Land Trusts include to hold title to land vested them in accordance with the Land Rights Act and to exercise their powers as owners of that land for the benefit of the Aboriginals concerned: Land Rights Act, s 5(1). Such functions and powers are not to be exercised except in accordance with a direction given to the Land Trust by the Land Council for the area in which the land is situated: see s 5(2). Subject to s 7(6), the members of the Land Trust are nominated by the relevant Land Council for appointment by the Minister: Land Rights Act, s 7(2) and (3). Section 7(6) stipulates that members of a Land Trust are to be Aboriginals living in the area of the Land Council in the area of which the land of the Land Trust is situated or whose names are set out in the register maintained by the Land Council in accordance with s 24. Pursuant to s 26, the Land Council must pay the expenses of the Land Trust.
13 Land Councils for areas within the Northern Territory were established by the Minister and they were constituted by “Aboriginals living in the area … or whose names are set out in the register maintained” under s 24 and “chosen by Aboriginals living in the area”: Land Rights Act, ss 21(1), 29(1). The NLC is such a Land Council. Land Councils are bodies corporate: see Land Rights Act, s 22(1). Pursuant to s 23(1) of the Land Rights Act, the functions of Land Councils include:
(1) ascertaining and expressing the wishes and opinions of Aboriginals living in the area of the Land Council as to the management of Aboriginal land in that area;
(2) protecting the interests of traditional Aboriginal owners of, and other Aboriginals interested in Aboriginal land in, the area of the Land Council;
(3) 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
(4) to negotiate with persons desiring to obtain an estate or interest in land in the area of the Land Council on behalf of traditional Aboriginal owners (if any) of that land and of any other Aboriginals interested in the land.
14 A Land Council must give priority to the protection of the interests of the traditional Aboriginal owners of, and other Aboriginals interested in, Aboriginal land in the area of the Council: see s 23AA(3).
15 For the purposes of the Land Rights Act, the expression “traditional Aboriginal owners” means a local descent group of Aboriginals who 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 are entitled by Aboriginal tradition to forage as of right over that land: see Land Rights Act, s 3(1). Section 24 provides that a Land Council may compile and maintain a register of the names of the persons who, in the opinion of the Land Council, are the traditional Aboriginal owners of Aboriginal land in the area of the Land Council. The NLC is the Land Council for the area that contains the Relevant Land.
16 Part VI of the Lands Rights Act deals with the Aboriginals Benefit Account, the existence of which is continued in s 62(1). Moneys are credited to the Account equal to the amounts of any royalties received by the Commonwealth or the Northern Territory in respect of a mining interest in Aboriginal land: see s 63(1). Subsections 64(1) and (3) provide for amounts to be debited from the Account and distributed to the Land Councils. Under s 64(4), other amounts are also to be debited from the Account and “paid or applied to or for the benefit of Aboriginals living in the Northern Territory”. Pursuant to s 35(2), where a Land Council receives money under s 64(3) in respect of mining interests or operations, the Land Council is to pay it to “any Aboriginal and Torres Strait Islander Corporation whose members live in, or are the traditional Aboriginal owners of, the area affected by those mining operations”. Pursuant to s 35(4), subject to certain exceptions, where a Land Council receives a payment in respect of Aboriginal land, the Land Council is to pay an equal amount “to or for the benefit of the traditional Aboriginal owners of the land”.
17 Part IV of the Land Rights Act deals with mining. Unless s 40(b) applies, s 40(a) requires that, before an exploration licence in respect of Aboriginal land can be granted, the Land Council for the area in which the land is situated must consent under s 42(1). Under s 42(2), a Land Council is not to consent unless “to the extent practicable” it has “consulted the traditional Aboriginal owners … concerning the exploration proposals and “the terms and conditions to which the grant of the licence may be subject”; and consulted any Aboriginal community or group that may be affected by the grant of the licence “to ensure that the community or group has had an adequate opportunity to express to the Land Council its views concerning the terms and conditions”. Section 42(3) further provides that the Land Council “shall not refuse to consent to the grant of the licence unless it has … to the extent practicable, consulted the traditional Aboriginal owners … concerning the matters referred to in” s 42(2)(a). Section 42(6) stipulates that the Land Council shall not consent to the grant of a licence unless it is satisfied that (1) “the traditional Aboriginal owners … understand the nature and purpose of the terms and conditions and, as a group, consent to them”; (2) the terms and conditions are reasonable; and (3) it has agreed with the applicant upon the terms and conditions. Thus, in the circumstances to which these provisions apply, whereas s 42(2) requires consultation with an affected Aboriginal group, the only consultation which is critical to the Land Council’s consent or refusal to consent to the grant of a licence is that with traditional Aboriginal owners.
18 The key provisions of the Land Rights Act for the purposes of the Gondarra application are ss 19, 27 and 23(3).
19 Section 19 relevantly provides:
19 Dealings etc. with interests in land by Land Trusts
(1) Except as provided by this section or section 19A or 20, a Land Trust shall not deal with or dispose of, or agree to deal with or dispose of, any estate or interest in land vested in it.
…
(2) 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 an Aboriginal or an Aboriginal and Torres Strait Islander corporation:
(a) for use for residential purposes by:
(i) the Aboriginal and his or her family; or
(ii) an employee of the Aboriginal or the corporation, as the case may be;
(b) for use in the conduct of a business by the Aboriginal or the corporation, not being a business in which a person who is not an Aboriginal has an interest that entitles him or her to a share in, or to a payment that varies in accordance with, the profits of the business; or
(c) for any community purpose of the Aboriginal community or group for whose benefit the Land Trust holds the land.
(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.
…
(4) With the consent, in writing, of the Minister and at the direction, in writing, of the relevant Land Council, a Land Trust may:
(b) transfer to another Land Trust, or surrender to the Crown, the whole of its estate or interest in the whole, or any part of, the land vested in it.
Note: See also section 20A (which deals with the application of the law of the Northern Territory relating to the transfer of land).
(4AA) Any right, title or other interest in land transferred under subsection (4) that existed immediately before the transfer is preserved as a right, title or interest in that land after the transfer.
(4AB) Any agreement in respect of land transferred under subsection (4) that was entered into by the transferor Land Trust and that is in force immediately before the transfer is taken to have the same force and effect, after the transfer, as the agreement would have had if it had been entered into by the transferee Land Trust.
(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.
(7) The consent of the Minister is not required for the grant under subsection (2), (3) or (4A) of an estate or interest the term of which does not exceed 40 years.
…
(9) Where a grant of an estate or interest is invalidated, by virtue of subsection (6), on account of fraud, that invalidity does not affect the rights of a person who has, for value and without notice of the fraud, accepted the transfer of that estate or interest or been granted an interest dependent upon that estate or interest.
…
(10) In this section, relevant Land Council, in relation to land, means the Land Council for the area in which the land is situated.
(11) A reference in this section to an estate or interest in land includes:
(a) a reference to a licence granted in respect of that land including, but without limiting the generality of the foregoing, a licence granted under a law of the Northern Territory relating to the mining or development of extractive mineral deposits; or
(b) a reference to a lease or other interest in that land, or a right granted in respect of that land, under such a law.
…
20 Section 27 concerns the powers of a Land Council. Section 27 relevantly provided:
27 Powers of Land Council
(1) Subject to this Act, a Land Council may do all things necessary or convenient to be done for or in connexion with the performance of its functions and, without limiting the generality of the foregoing, may:
(a) employ staff;
(b) obtain the advice and assistance of persons who are expert in any matter with which the Council is concerned (including assistance in connection with the administration of the affairs of the Council);
(c) give lawful directions to Land Trusts holding land in its area concerning the performance of their functions; and
(d) receive moneys due and owing to Land Trusts holding, or established to hold, land in its area and give a valid discharge for those moneys.
…
(3) A Land Council shall not, without the approval of the Minister, enter into, or permit a Land Trust holding land in its area to enter into, a contract involving the payment or receipt of an amount exceeding $1,000,000, or, if a higher amount is prescribed, that higher amount.
(4) The Minister shall not give an approval under subsection (3) with respect to entering into a contract relating to Aboriginal land unless the Minister is satisfied that the Land Council concerned has, in taking the action that has resulted in the proposed contract, complied with any duty imposed on it by subsection 23(3).
21 Section 23(3) of the Land Rights Act provided:
(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.
the parties’ submissions
Dr Gondarra’s submissions
22 In written submissions filed before the hearing (“principal written submissions”), Dr Gondarra advanced various arguments said to support his stated review grounds. As Mr Lloyd SC, for the Minister, noted at the hearing, Dr Gondarra put forward what were in some respects different arguments at the hearing; and neither set of arguments married up to the review grounds particularly closely. Ultimately, the Court is required to deal with the applicant’s submissions as they were ultimately put as best it can. Since the applicant’s submissions changed over time, I set them out in some detail below.
23 In principal written submissions, Dr Gondarra dealt with grounds 1, 2 and 3 together. Dr Gondarra submitted that the exercise of powers in ss 19(4A) and 27(3) of the Land Rights Act was predicated on the existence of a jurisdictional fact, being the existence in the mind of the Minister of a state of satisfaction that the Land Council has discharged certain statutory obligations. Dr Gondarra submitted that the Minister’s state of satisfaction was vitiated because the Minister: (1) addressed the wrong question by misunderstanding the nature of the Land Council’s obligations to consult; (2) formed a state of mind for which there was no evidence or which was irrational; (3) failed to inquire as to the nature and content of the NLC’s consultations; and (4) so far as the Lease was concerned, failed to consider whether she was satisfied that the traditional Aboriginal owners of the Relevant Land understood the nature and purpose of the proposed grant of the Lease, that any Aboriginal community or group that may be affected by the proposed grant of the Lease had been consulted and had had an adequate opportunity to express its view to the NLC, and that the terms and conditions on which the grant of the Lease was to be made were reasonable. At the hearing, however, the applicant focussed only on the obligations said to be owed to Aboriginal people other than the traditional Aboriginal owners of the Relevant Land.
24 In written submissions in reply, Dr Gondarra submitted that:
The Minister erred in this case because she gave her approval in the absence of any information as to what the NLC said (or sought to say) to the applicant and others in a similar position, and because she had information to suggest that the NLC had in fact not given critical information to the applicant and others (including information as to essential terms of the Agreement). In these circumstances, the Minister erred in any one or more of the ways outlined by the applicant in his primary submissions.
(Emphasis original)
25 Instead, Dr Gondarra contended that the Minister might have asked the NLC:
“Did you provide a copy of the Lease and the Agreement to persons that you say you consulted with? If not, did you at least state the essential terms of the Lease and the Agreement? Did you ask those persons to comment on whether the Lease or the Agreement should be made in those terms?”
This supposed duty to inquire was later put in various other ways.
26 Dr Gondarra argued that for the requirement in s 27(4) to be effectively met and the Minister satisfied that the Land Council had fulfilled its duties under s 23(3), the Minister required “some information about what the NLC said … to relevant Aboriginal persons when it purported to consult with them”.
27 With respect to ground 4 of his judicial review application, as amended, Dr Gondarra’s written submissions identified three ways in which he said that he was denied procedural fairness by the Minister. These ways were that: (1) the Minister did not disclose a copy of the Lease and the Agreement (or explain its key terms) and failed to disclose “the substance of material that was adverse to the Dhurili Nation’s interests”; (2) the period afforded by the Minister for him to make submissions was unreasonably short; and (3) when making her decisions, the Minister did not properly consider the material provided by Dr Gondarra concerning the Dhurili Nation. A different formulation was adopted in oral submissions at the hearing.
28 In written submissions in reply, citing Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (“Alphaone”) at 592, Dr Gondarra further submitted that “the Minister was required to identify for [him] any issue critical to the decision which [was] not apparent from the decision’s nature, and to give [him] an opportunity to be heard in relation to adverse material”. He contended that:
Thus, it was it was necessary for the Minister to provide the applicant with a copy of the Lease and the Agreement (or at least to summarise their essential terms), because the terms of those instruments were (or should have been) critical to the Minister's decision as to whether she was satisfied that the NLC had complied with its duties under s 23(3) in connection with those instruments. Without understanding the terms of those instruments, the applicant was deprived of a meaningful opportunity to make submissions to the Minister on whether relevant persons had in fact been properly consulted about the effect of those particular instruments.
29 Further, under ground 4, Dr Gondarra raised an argument that certain statements made by the Minister to Dr Gondarra “gave rise to a ‘legitimate expectation’ on [his] part… that the Dhurili Nation would be given a fair and reasonable opportunity to be heard by [her]”, before she made her decision. This argument was developed further in oral submissions and I refer to it again below.
30 In principal written submissions, Dr Gondarra submitted, with reference to ground 5 of the review application, as amended, that the Minister’s consent to the Lease, pursuant to s 19(4A) of the Land Rights Act, “involved an error of law or was otherwise contrary to law by reason that she concluded that there were no matters that she was required to consider in deciding whether to give her consent”. Dr Gondarra submitted that “the Minister was required to be satisfied that the NLC had properly complied with its statutory obligations in connection with the proposal that the Land Trust grant the Lease and in entering into the Agreement”. Dr Gondarra did not develop this ground in oral submissions at the hearing.
31 In principal written submissions, Dr Gondarra submitted, with respect to ground 6, that the Minister took into account irrelevant considerations by considering whether the grant of the Lease and the entry into the Agreement would have broader economic benefits for the local people and economy, for the Northern Territory economy and for the Australian economy. Dr Gondarra submitted that these matters could not lawfully be taken into account because: (1) the Land Rights Act was silent on whether the Minister may take them into account and that Act could have stated expressly that they were permissible considerations; and (2) since Land Councils were not directed to have regard to such matters, then the considerations to which the Minister might have regard in exercise of the powers in ss 19(4A) and 27(4) should be similarly confined, as they were “supervisory” in nature and conferred to ensure that the Land Council complied with its obligations. Dr Gondarra did not expand upon these submissions orally at the hearing.
32 In principal written submissions, Dr Gondarra contended that the invalidity of the challenged decisions meant that they were of no legal effect and that the Minister’s failure to give her consent under s 19(4A) of the Land Rights Act to the proposed grant by the Land Trust of an interest in land invalidated the grant itself. Whilst noting that the terms of the provisions were different, Dr Gondarra submitted that the Minister’s failure to give her approval under s 27(4) of the Land Rights Act meant that the Agreement was ultra vires and void. Dr Gondarra contended that the registration of the lease under the law of the Northern Territory (see s 188(1) of the Land Title Act 2000 (NT) (“Land Title Act”)) did not confer an indefeasible title, where the conferral of title would operate inconsistently with the Land Rights Act, being a law of the Commonwealth: see Northern Territory (Self-Government) Act 1978 (Cth), ss 6, 57 and Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 25 FCR 345 at 365-366.
33 At the hearing, Dr Gondarra also argued that, since the Lease was inextricably part of the Agreement (being Schedule 1 to the Agreement), the Minister was obliged by s 27(4) to be satisfied that the Land Council had discharged its duties under s 23(3) in respect of both the Agreement and the Lease. Read in this way, s 27(4) created, on Dr Gondarra’s submission, an additional obligation with respect to the Lease, which the Minister had not recognised and performed. (Within this argument, s 19(4A) nonetheless continued also to impose obligations with respect to the lease.)
34 In oral submissions, Mr Bennett QC for Dr Gondarra relied on items of correspondence (variously dated 23 May 2011, 16 May 2011, 17 December 2010, 23 November 2010 and 22 October 2010) which were before the Minister at the time the challenged decisions were made for the propositions: that the Minister had been informed that: (1) Dr Gondarra had asserted that his group were the traditional Aboriginal owners of the Relevant Land; (2) Dr Gondarra had asserted that his group had not been properly consulted in relation to the Agreement and the Lease; and (3) Dr Gondarra had asked to be given copies of the Agreement and the Lease and had not been given such copies. Mr Bennett also relied on the NLC’s submission of 6 May 2011 (“the NLC’s May 2011 submissions”), also before the Minister at the time of the challenged decisions, in support of the propositions that: (1) there were long-standing disputes about land ownership in the Gove region; (2) the NLC had rejected Dr Gondarra’s claim that his group were the traditional owners of the Relevant Land; and (3) the NLC recognised that Dr Gondarra’s group had traditional interests in the Relevant Land and were an Aboriginal group that might be affected by the proposals to enter the Agreement or Lease, for the purposes of ss 23(3) and/or 19(5) of the Land Rights Act. None of these propositions were disputed by the other parties.
35 In oral submissions at the hearing, Mr Bennett QC presented Dr Gondarra’s argument that the Minister had failed to comply with her statutory obligation under s 27(4) of the Land Rights Act to be satisfied that the Land Council had consulted with Aboriginals interested in the land, as required of it by s 23(3). Referring to Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360 and Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”) at 625 [40] and 638 [102] (citing Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at 20-21 [37]-[38]), Mr Bennett argued that, on a number of grounds, this failure vitiated: (1) the Minister’s approval under s 27(3) in respect of the Agreement and the Lease; and (2) the Minister’s consent under s 19(4A) in respect of the Lease. As Mr Bennett put it, the Minister’s failure arose from the fact that the Minister was made aware that the NLC did not give Dr Gondarra or his group copies of the Agreement and the Lease since the NLC had advised her that they were “commercial-in-confidence” documents. For the same reason, Mr Bennett submitted that the Minister would have inferred that the NLC had not disclosed the provisions over which confidentiality was claimed. Mr Bennett submitted that there could be no adequate consultation unless copies of the Agreement and the Lease were provided to those who were to be consulted.
36 In support of these propositions Mr Bennett QC relied on a letter dated 12 May 2010 written by Ms Sally Moyle, an officer in the Minister’s Department, to Dr Gondarra’s lawyers (and copied to the NLC). Mr Bennett described this May 2010 letter, dramatically, as “a smoking gun”, although the fact that it was said to evidence was agreed in paragraph 29 of the agreed statement of facts. There was no dispute that the NLC had not given Dr Gondarra or his group copies of the Agreement and the Lease in the course of consulting them, nor that the Minister knew as much.
37 Mr Bennett QC submitted that the Lease and the Agreement were not confidential from the persons with whom the Land Council had an obligation to consult; that they were not confidential in any event; and that the confidentiality claim itself showed a failure on the NLC’s part to consult, as required. The NLC’s confidentiality claim was, so he said, “a paltry excuse for unjustified concealment”. He maintained that the very matters that Dr Gondarra’s group needed to know were likely to be the very matters over which the claim of commercial-in-confidence was made.
38 Further, in a new argument at the hearing, it was said on Dr Gondarra’s behalf that the information before the Minister, including the NLC’s May 2011 submissions, showed that the last date of consultation in relation to the Agreement and the Lease was October 2010, but the Agreement and the Lease were not concluded until May 2011, the terms of both being provided to the Minister earlier in the same month. It was said that “[t]he inference might be drawn … that whatever was said at the consultations on October 2010 can’t have reflected the terms of the instrument as finally determined”. This argument was supported by reference to a letter dated 19 April 2011, from the Minister to the NLC, in which the Minister referred to the NLC’s recent update “on the status of negotiations regarding the proposed Agreement” and emphasized that the Minister required the Agreement for her consideration “as soon as possible”. Since the Minister was aware of these matters, then, so this argument ran, the Minister should have inferred that the consultations were inadequate. It was conceded, however, that there was no evidence about what, if anything, changed between October 2010 (when consultations ended) and May 2011 (when the Agreement and the Lease were provided to the Minister, for her consideration). This argument was not signalled in Dr Gondarra’s originating application or submissions filed before trial. I indicated as much in the course of the hearing and, whilst this may be so, I touch on it briefly below.
39 Further or alternatively, referring to Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 (“Le”) at 172-173 [60]-[61] and Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 (“SZIAI”) at 436 [25], Mr Bennett QC argued that, in circumstances where the Land Council had declined to provide Dr Gondarra with a copy of the Agreement and the Lease as he sought, the Minister’s failure to ask the Land Council “What did you tell Dr Gondarra’s group when you consulted with them?” or “What did you tell them about the contents of the documents?” was an error that vitiated the Minister’s approval under s 27(3) and consent under s 19(4A) of the Land Rights Act. Mr Bennett submitted that not only would the question have been easy to ask but also “it’s as to a critical fact”. In this context, Mr Bennett submitted that, whilst the Minister was told by the Land Council that there had been the requisite consultation, the Minister was not told what was disclosed in the course of that consultation. Citing Kutlu v Director of Professional Services Review (2011) 197 FCR 177 (“Kutlu”) at 199, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Ltd (2010) 268 ALR 514 (“QR Ltd”) at 527 and Alderson v Northern Land Council (1983) 67 FLR 353 (“Alderson v NLC”) at 361, it was also said that the Minister should have asked whether there had been any (and what) change in the Agreement and the Lease between October 2010 and May 2011.
40 There was a further argument advanced for Dr Gondarra that the payment of rent under the Lease was in excess of $1 million and therefore, by virtue of s 27(4), the Minister had to be satisfied that the NLC had complied with its duties under s 23(3) in relation to the Lease itself. This argument had no foundation in either the originating application as it stood at the time of the trial or in the detailed written submission filed before trial. The Minister indicated that she might have sought to adduce evidence if this argument had been raised at the appropriate time. As the Minister stated, there was nothing in Dr Gondarra’s pre-trial material to indicate that he was challenging a failure to make a decision in respect of the Lease under s 27(3) and (4) of the Land Rights Act. Ultimately, counsel appearing for Dr Gondarra accepted that the point was not raised by his originating application. Dr Gondarra chose not to make application relevantly to amend his application and the point was abandoned.
41 Mr Wood, who also appeared for Dr Gondarra, made Dr Gondarra’s oral submissions on natural justice and on the question concerning Dr Gondarra’s entitlement to relief if he made out his grounds. Mr Wood argued that the Minister had a duty to afford Dr Gondarra procedural fairness because: (1) he had an interest in the challenged decisions; and (2) he had a legitimate expectation that he would be afforded natural justice, with a particular content.
42 In support of the latter submission, Mr Wood referred to various items of correspondence (a letter dated 22 October 2010 from Dr Gondarra’s former solicitors to the Minister, a letter dated 23 November 2010 from the Minister to Dr Gondarra’s former solicitors, a letter dated 17 December 2010 from Dr Gondarra’s current solicitors to the Minister, a letter dated 22 December 2010 from the Minister’s Department to Dr Gondarra’s current solicitors, a letter dated 24 December 2010 from Dr Gondarra’s current solicitors to the Minister, a letter dated 12 May 2011 (mistakenly stated as “2010”) from Ms Moyle of the Minister’s Department to Dr Gondarra’s current solicitors, and a letter dated 23 May 2011 from Dr Gondarra’s current solicitors to Ms Moyle (also mistakenly stated as “2010”)). Mr Wood submitted that this correspondence showed that “the Minister promised to undertake an assessment of whether the NLC complied with its duties; promised to afford natural justice to [Dr Gondarra]; to consult with [Dr Gondarra] and to ensure an open and transparent process”. Against this background, referring to Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 at 12-13 [34], 16-17 [48], 27-28 [82], 34 [105] and Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 652, 659, 672, 681-682, Mr Wood submitted that an undertaking or representation that gave rise to a legitimate expectation may enliven a duty of procedural fairness.
43 In relation to procedural fairness, Mr Wood submitted that there were three ways in which the Minister failed to afford procedural fairness. They were: (1) a failure to disclose the documents critical to her decisions, namely, the Agreement and the Lease; (2) a failure to give Dr Gondarra adequate notice of adverse material (being the NLC’s May 2011 submissions) and insufficient time to respond to it before she made her decision; and (3) a failure to consider (in the sense of engaging and grappling with) Dr Gondarra’s submission that the NLC could not have consulted with him without the NLC providing the Lease and the Agreement to him. In particular, Mr Wood submitted that there was a failure to afford procedural fairness when the Minister failed to provide documents critical to her decision, namely, the Agreement and the Lease. Mr Wood also submitted that “for the Minister to be satisfied that the NLC had satisfied its [s] 23(3) duties about traditional ownership, the evidence of the NLC saying that we weren’t a traditional owner was adverse to us and we ought to have been afforded an opportunity [to answer it]”. In this context too, Mr Wood argued that Dr Gondarra was given insufficient time. Lastly, referring to Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 (“Dranichnikov”) at 394 [24], Mr Wood submitted that there was a failure to accord natural justice because the Minister did not address, nor was she engaged with, Dr Gondarra’s claim that he and his group were not properly consulted because they did not receive a copy of the Lease or the Agreement.
44 With respect to Dr Gondarra’s entitlement to relief in the event he made out one or other of his review grounds, Mr Wood’s submissions substantially followed Dr Gondarra’s principal written submissions. In effect, Mr Wood argued that the need for Ministerial consent in s 19(4A) and Ministerial approval in s 27(4) were each a precondition on the exercise of power by the Land Trust under s 19(4A) and s 27(3) of the Land Rights Act.
The Minister’s submissions
45 In written submissions responding to Dr Gondarra’s principal written submissions (“the Minister’s principal written submissions”), the Minister accepted that, so far as s 27(3) of the Land Rights Act was concerned, the Minister’s power was conditional on the Minister reaching the state of satisfaction specified in s 27(4) of the Land Rights Act. The Minister contended, however, that the power conferred on the Minister by s 19(4A) of the Land Rights Act was not subject to a requirement that the Minister be satisfied that the Land Council had complied with the duties imposed by s 19(5), s 23(3) or otherwise.
46 In the Minister’s principal written submissions, in relation to s 27(3) of the Land Rights Act, the Minister argued that the Minister was not herself required to be satisfied that the traditional Aboriginal owners (if any) understood the nature and purpose of the Agreement and, as a group, consented to it. Nor was the Minister herself required to be satisfied that any Aboriginal community or group that may be affected by the Agreement had been consulted and had had adequate opportunity to express its views to the Land Council. As the Minister put it, the Minister had only to be satisfied that the NLC was satisfied that those standards had been met; and that the NLC had in fact had regard to the interests of and consulted the persons whom the NLC believed fell within the two specified categories of Aboriginal people. Further, so the Minister argued, s 23(3) did not impose an obligation akin to s 19(5) that a Land Council be satisfied that the terms and conditions of a proposed contract were reasonable; and accordingly s 27(4) did not require that, in exercising power under s 27(3), the Minister be satisfied that the terms and conditions of the Agreement were reasonable, or that the Land Council was so satisfied.
47 The Minister noted that, in relation to s 27(3), Dr Gondarra complained only about the Minister’s satisfaction that: (1) the NLC consulted with the Aboriginal owners of the Relevant Land and other Aboriginals interested in the Relevant Land; and (2) the NLC was satisfied that any Aboriginal community or group that may be affected by the Agreement had been consulted and had had adequate opportunity to express its view to the NLC. The Minister contended that there was no substance in Dr Gondarra’s claim that the Minister asked herself the wrong question because she misunderstood what the notion of consultation required. Further, the Minister contended that the Minister had evidence upon which she could reach the satisfaction that she in fact reached and that there was a logical and rational connection between that evidence and that state of satisfaction. The Minister also argued that there was no duty to inquire, as claimed by Dr Gondarra.
48 The Minister argued that there had been no breach of the duty to afford natural justice because the Minister’s obligation (if any) to afford natural justice was confined to the Minister’s consideration of whether the Land Council had complied with its consultation obligation and any other matters that the Minister proposed to take into account that were not agitated in the Land Council consultation process. Dr Gondarra did not identify any matters of this kind that ought to have been disclosed as adverse to his interest. The Minister submitted that the time period was reasonable in all the circumstances; and that the Minister’s statement of reasons showed that the Minister considered the position of the Dhurili Nation as far as she was required to do.
49 In response to ground 5, the Minister submitted that she did not conclude in her statement of reasons that “there were no matters that she was required to consider in deciding whether to give her consent”.
50 The Minister argued that Dr Gondarra’s submissions in support of ground 6 should be rejected because the consideration of the broader economic benefits of the Lease and the Agreement was a permissible consideration in the Minister’s decision-making under ss 19(4A) and 27(3) of the Land Rights Act.
51 Finally, the Minister contended that, if the Minister’s decisions under ss 19(4A) and 27(3) miscarried, it did not invalidate either the Lease or the Agreement.
52 In oral submissions, Mr Lloyd SC, for the Minister, submitted that, in order to discharge its obligation under s 23(3), the NLC was not required to provide Dr Gondarra or his group with a copy of the Lease or the Agreement; and nor was the commercial-in-confidence material “any relevant part of the gist that is required under [s] 23(3)(b)”. Mr Lloyd submitted that it was sufficient that the NLC gave Aboriginal groups that may be affected by the proposed action “at least a broad indication of the proposal and what’s being negotiated, so that the applicants can know what the action that is being considered is”. The Minister rejected the proposition that, under s 23(3)(b), there could be no consultation unless there was consultation on the final form of the Agreement. Kutlu and Alderson v NLC were, so he maintained, inapplicable in this case.
53 Mr Lloyd SC submitted that the Court was required to decide whether or not on the material before the Minister, it was not open to her to conclude that there had been the consultation required by s 23(3) of the Land Rights Act; and that her conclusion that there had been such consultation disclosed an error of some kind described by the applicant. Mr Lloyd submitted that Dr Gondarra’s case fell well short of this hurdle.
54 Further, Mr Lloyd SC submitted that, by ensuring that the NLC’s submission to the Minister was also provided to Dr Gondarra, the Minister in fact did that which she had earlier indicated that she would do. That is, the Minister afforded Dr Gondarra an opportunity to comment on the NLC’s account of the consultation and gave him a chance to respond. Mr Lloyd emphasised that he did not rely on South Australia v O’Shea (1987) 163 CLR 378 (“O’Shea”) to say that there was no procedural fairness requirement, but rather in support of the proposition that the Minister was not obliged to afford procedural fairness on matters that were entrusted by the statutory framework to the NLC, such as the “traditional owners” issue.
NLC and Land Trust submissions
55 The NLC and the Land Trust contended that the Minister was not required to be satisfied that the Land Council had complied with s 19(5) before giving consent under s 19(4A) of the Land Rights Act. To this end, they contrasted s 19, which contained no such express requirement, with s 27(4), which contained an express requirement as to the Minister’s satisfaction about consultation and other matters. They contended that “[a] statutory jurisdictional fact, as the criterion the satisfaction of which enlivens the statutory power or discretion in question, is unlikely to be inferred by implication”. Further, they submitted that “[a]ny failure in the process of Land Council consultation does not invalidate the grant, unless procured by fraud (s 19(6), (9))” and “[i]f error otherwise occurs in the process of consultation, it is treated as occurring within, not beyond, power”. They submitted that these circumstances told against the implication of a statutory jurisdictional fact of the kind for which Dr Gondarra contended. For the same reasons, whether or not the NLC had complied with s 19(5) was not a mandatory consideration for the Minister in considering whether or not to give consent under s 19(4A).
56 Referring to Alderson v NLC at 359-360 and 362 and Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 at 306, 308, the NLC and the Land Trust submitted that the obligations imposed by s 23(3) involved the evaluation of delicate and complex matters, conditioned by a state of satisfaction about them as opposed to their objective existence. They contended that “these are indications that it is not a purpose of the legislation that any alleged breach of s 23(3) would affect the validity of actions already carried out”; and therefore “error in formation of the state of satisfaction by the Minister could not invalidate her action”. In any event, the Land Rights Act did not, so the Land Council and the Land Trust submitted, prescribe any particular form of consultation and there was sufficient material, including “detail of consultations with the Dhurili Nation clans”, before the Minister to justify her satisfaction about such matters.
57 Noting that paragraphs (a) and (b) of s 23(3) were “particular (or specifics) of the statement of general duty in the commencement (or chapeau) of the subsection”, the Land Council and the Land Trust submitted that “when the Minister comes to consider whether she is satisfied that the Land Council concerned has complied with any duty imposed on it by s 23(3) … the Minister’s inquiry about satisfaction is necessarily directed to what the Land Council did in relation to the group of Aboriginals considered by the Land Council to be the traditional Aboriginal owners, and those Aboriginals that the Land Council considers to be interested in the land”. Referring to Myoung v Northern Land Council (2006) 154 FCR 324 (“Myoung”) at 330 [22], Alderson v NLC and Tapgnuk v Northern Land Council (1996) 108 NTR 1 (“Tapgnuk”) at 9, they observed that it was “well settled that the subjects of s 23(3) are matters upon which the Land Council is required to form its own view”. They submitted that “[t]he contrary distributive construction … that splits the chapeau of s 23(3) from pars (a) and (b) would lead to incongruous results in requiring the Minister to undertake varying and different evaluations under s 27(4)”. Like the Minister, the NLC and the Land Trust submitted that the Minister might rationally be satisfied that the NLC had complied with its s 23(3) duties in relation to Dr Gondarra and those he claimed to represent, even though the Minister was aware that that the NLC had not given him a copy of the Lease and Agreement. The NLC and the Land Trust also submitted that there was no requirement that the Minister afford the procedural fairness for which Dr Gondarra contended. They submitted that the Land Rights Act, in ss 19(5) and 23(3), provided for consideration of issues to occur at the stage of consultation by a Land Council; and that the Act did not permit “further agitation of those matters before the Minister”.
Rio Tinto Alcan parties’ submissions
58 The second and third respondents (whom I refer to hereafter as the “Rio Tinto Alcan parties”) made written and oral submissions addressing Dr Gondarra’s claims that the challenged decisions were affected by reviewable error. The Rio Tinto Alcan parties argued that s 19(4A) of the Land Rights Act did not impose a statutory requirement or condition on the exercise of the power of the Minister, (unlike the Land Council) that she be satisfied that the Land Council had complied with s 19(5), as Dr Gondarra’s argument assumed. The Rio Tinto Alcan parties submitted that the Minister’s statement of reasons confirmed that the Minister was aware of and understood the requirement for satisfaction under s 27(4) and that the Minister was so satisfied. They submitted that the information referred to in the Minister’s statement of reasons provided under s 13 of the ADJR Act (“the s 13 statement of reasons”) and relied on by the Minister was sufficient to enable the Minister to be satisfied that the Land Council had complied with the duty imposed on it by s 23(3) of the Land Rights Act.
59 The Rio Tinto Alcan parties also submitted that, under the Land Rights Act, the Land Council was the body best equipped to carry out the consultative function; and that that Act did not contemplate that the Minister undertake her own consultations. They further submitted that the evidence showed that Dr Gondarra and those he represented were given a reasonable opportunity to express their views to the Land Council and that they did so. Further, the evidence showed that Dr Gondarra was also given an opportunity to put material before the Minister and that the Minister had regard to his response in reaching her decision. Accordingly, so they submitted, his claim that there was a failure to accord procedural fairness failed.
60 The Rio Tinto Alcan parties argued that there was no basis for either ground 5 or ground 6 of Dr Gondarra’s review application, as amended.
61 The Rio Tinto Alcan parties also filed detailed written submissions to the effect that, even if the consent given by the Minister under s 19(4A) to the Lease and/or the approval given by the Minister under s 27(3) to the Agreement were affected by reviewable error, Dr Gondarra would not be entitled to the declaratory relief he sought in his review application.
Rio Tinto Alcan application
62 By their application in separate proceedings (being VID 97 of 2012), if the Minister’s consent under s 19(4A) was vitiated by the errors alleged in VID 864 of 2011, the Rio Tinto Alcan parties sought declarations that (1) the Lease was not void, as a matter of construction of s 19(4A); and (2) that, pursuant to ss 185 and 188(1) of the Land Title Act, the Rio Tinto Alcan parties were the registered proprietors of a leasehold interest in the land described in the Lease, and indefeasible title to that leasehold interest was conferred on them by reason of the registration of the Lease with the Northern Territory Land Titles Office on 30 May 2011. At the hearing, senior counsel for the Rio Tinto Alcan parties re-stated their application in like terms. I note, however, that, in written submissions filed on 17 December 2012 (at paragraph 5), the Rio Tinto Alcan parties stated that “[i]f … either the consent given by the Minister under subsection 19(4A) … to … Lease or the approval given by the Minister under subsection 27(3) … to the … Agreement was affected by reviewable error, by their application in VID 97 of 2012, the Rio Alcan parties seek a declaration that the … Lease or … Agreement respectively are not void (as a matter of construction of subsections 19(4A) and 27(3) respectively)”. For reasons that will become apparent, it is unnecessary to resolve this discrepancy.
Rio Tinto Alcan parties submissions
63 The Rio Tinto Alcan parties supported their claims for declaratory relief with detailed written and oral submissions to the effect that: (1) they derived their indefeasible interest in the Lease from registration under the Land Title Act: see ss 39, 47, 185, 188, 189; (2) having regard to s 20A(1) of the Land Rights Act, there was no inconsistency between the relevant operation of the Land Title Act and the Land Rights Act and, accordingly, the Northern Territory Land Title Act would not, if effective, vary, impair or detract from the operation of the Commonwealth Land Rights Act: see Northern Territory (Self-Government) Act 1978 (Cth), ss 6, 57, discussed in Western Australia v Ward (2002) 213 CLR 1 at 108-109 [130]-[132]; Northern Territory v GPAO (1999) 196 CLR 553 at 579 [48]; and R v Kearney; ex parte Japanangka (1984) 158 CLR 395 at 417-419.
NLC and Land Trust submissions
64 The NLC and the Land Trust specifically made no submission about the need for this separate proceeding or the utility of the declarations sought. Their written submissions in this proceeding were confined to “the issue of the statutory intersection presented by the second claim about indefeasibility under the Territory law”.
65 In written submissions, citing South-Eastern Drainage Board (SA) v Savings Bank of South Australia (1939) 62 CLR 603 at 627-628, Travinto Nominees Pty Ltd v Vlattas (1973) 129 CLR 1 at 34-35, Horvath v Commonwealth Bank of Australia [1999] 1 VR 643 at 673-674 [75], Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472 at 491 [53] and Attorney-General (NT) v Hand (1989) 25 FCR 345 (“Hand”) at 359, 368, 370-371, 391, 397-398, 402-3, the NLC and the Land Trust acknowledged that, if the Land Title Act were considered to validate an interest that was prohibited by the Land Rights Act, then the provisions of the former Territory law would collide with the overriding provisions of the latter Commonwealth law; and that it would not be possible for both laws to stand together and to be given effect according to their terms.
66 In written submissions, the NLC and the Land Trust argued, however, that the contemplated situation in this case involved “a different order of things” to that in Hand. They submitted that if, within the terms of s 19(6) and (9) of the Land Rights Act, a grant were invalid, then later registration of the grant under the Land Title Act could not operate to confer on the holder an indefeasible title, because a law of the Territory could not impair or detract from the operation of the Land Rights Act in this way. In this case, so they argued, there was no such difficulty because the grant would not be invalid within s 19(6) and (9) of the Land Rights Act. They maintained that, if a consent given by the Minister breached the provisions of that Act, the consent would nonetheless be valid and so too would a grant or agreement to which the consent related. They submitted that “Torrens title might thus operate ‘sequentially’, such that before grant and registration those actions might be restrained, but once done, unless within sub-ss 19(5) and (9), legal effect is intact”.
Dr Gondarra’s submissions
67 In this proceeding, Dr Gondarra repeated his submissions (mentioned earlier) in VID 864 of 2011 that the Lease and the Agreement were void. He further contended, in written submissions filed before the hearing, that the Rio Tinto Alcan parties had commenced the separate proceedings in VID 97 of 2012 unnecessarily. He argued that Hand was relevantly indistinguishable and the submission (made by the Rio Tinto Alcan parties) that it was wrongly decided should be rejected. Dr Gondarra further contended that s 20A(1) of the Land Rights Act did not remove the potential for inconsistency between the Commonwealth Land Rights Act and the indefeasibility provisions of the Northern Territory’s Land Title Act.
consideration
68 It is convenient to discuss first the operation of s 19(4A) of the Land Rights Act, since the applicant’s arguments regarding it can be disposed of briefly. The applicant abandoned part of his substantive argument about s 19(4A) when he filed his application as amended on 6 March 2013. This was, however, well after written submissions had been filed. In any event, part of his argument continued to be maintained in his application as amended on 6 March 2013.
Section 19
69 The long title of the Land Rights Act states that it is an “Act providing for the granting of Traditional Aboriginal Land in the Northern Territory for the benefit of Aboriginals, and for other purposes”. To achieve its purposes, the Act establishes a regime for the holding of title to land by Land Trusts for the benefit of Aboriginals entitled by Aboriginal tradition to the use and occupation of the land (s 4(1)), under the supervision of a Land Council (s 5(2)). As appears above, s 19 of the Land Rights Act regulates dealings with, and disposals of, estates and interests in land vested in Land Trusts. An estate or interest in land includes a lease: s 19(11)(b). A Land Trust must not deal with, or dispose of, land except as provided by ss 19, 19A or 20 of the Land Rights Act (s 19(1)).
70 The relevant provisions, extracted above, governing the grant of the Lease are contained in ss 19(4A), (5), (6) and (7) of the Land Rights Act. As the Lease exceeded 40 years, s 19(7) was inapplicable and Ministerial consent to the Lease was required under s 19(4A).
71 The grant of an estate or interest in land by a Land Trust under s 19(4A) involves prior decisions by two persons: the Land Council (which may (or may not) give a direction to the Land Trust) and the Minister (who may give or withhold consent). Although s 19(4A) states that the Land Trust may grant an estate, this provision must be read with s 5(2) of the Land Rights Act, which stipulates that the Land Trust must only take action in accordance with a direction given to it by the Land Council. Read in this way, it is plain enough that the word “may” in s 19(4A) is used in the sense of empowering the Land Trust to grant an estate, not in the sense of conferring a discretion on the Land Trust to do so. The terms of s 19(4A) also echo this reading.
72 The exercise of the Land Council’s power to give a direction under s 19(4A) is subject to the express requirements stated in s 19(5). That is, before giving such a direction, the Land Council must be satisfied in accordance with s 19(5)(a), (b) and (c). Section 19(5) distinguishes between the traditional owners of the land the subject of the proposed grant and an Aboriginal community or group that may be affected by the proposed grant. The Land Council must be satisfied, under s 19(5)(a), that the traditional Aboriginal owners “understand the nature and purpose of the proposed grant … and, as a group, consent to it”. The Land Council need not be so satisfied in respect of an Aboriginal community or group otherwise affected by the proposal. Here the Land Rights Act stipulates a lesser level of satisfaction. Under s 19(5)(b), the Land Council need only be satisfied that such an Aboriginal community or group has been consulted and has had adequate opportunity to express its view on the grant to the Land Council. That is, the different formulations of requisite satisfaction in respect of those Aboriginal people having different relationships to the land contemplate that the traditional Aboriginal owners need to be better informed about the proposal than those Aboriginal communities or groups who may simply be affected by it (and who are not the traditional owners).
73 In contrast to s 19(5), the exercise of the Minister’s power to give or withhold consent is not subject to any similarly expressed constraint. Under s 19(4A), the Minister may give or withhold consent to the Land Trust’s proposed grant of an interest in land, but neither s 19(4A) nor any other provision expressly requires the Minister to be satisfied about any particular matter before giving her consent. This can be contrasted with ss 27(4) and 19A(5A) (which is even more closely related to s 19 than s 27). The Minister’s discretion whether to give or withhold consent is confined only by such implied limitations as may be drawn from the Land Rights Act. An obligation to consider whether the proposed grant is for the benefit of Aboriginals can readily be implied: see the long title to the Land Rights Act. I can, however, discern no basis upon which it can be said that, in exercising her discretion whether or not to consent, the Minister is required to be satisfied as to the adequacy of the Land Council’s consultation with an Aboriginal community or group affected by the proposal.
74 Various considerations indicate that no such requirement should be implied. First, the express imposition of such a requirement in s 27(4) and elsewhere in the Act indicates that its absence from s 19(4A) was deliberate. Where the legislature contemplates that the Minister be satisfied of some circumstance, then, in this Act, it has generally stated as much: see ss 19(9A), 19(9B), 11(1)(b), 11(1AB), 11(1AD), 12B(1) and 12B(4). Secondly, the schemes of s 19 and s 27, read with s 23(3), are different. In contrast to s 23(3), s 19 does not in terms impose a freestanding obligation on the Land Council to consult. Rather, the only obligation that s 19(5) imposes on the Land Council is that it be satisfied that there has been consultation with such an Aboriginal community or group that may be affected by the proposed grant. That is, the only satisfaction mandated is that of the Council; and there is no further obligation imposed on the Council.
75 Further, the fact that, pursuant to s 19(6), an estate or interest granted following a failure by a Land Council to comply with s 19(5) is not invalid save in the case of fraud by the grantee tells against the possibility that the power conferred on the Minister by s 19(4A) is subject to a requirement that the Minister be satisfied that the Land Council complied with s 19(5). There is, moreover, no equivalent provision stipulating the consequence of an invalidating error in the Minister’s supposed satisfaction as to the Land Council’s consultation. This is yet another indication that there is simply no requirement that the Minister be so satisfied.
76 It does not follow from this, however, that, in deciding whether or not to give or withhold her consent, the Minister is precluded from considering other matters, including information given by the Land Council about its consultation process and economic considerations. There is nothing in the Land Rights Act that indicates that these considerations are of themselves irrelevant to the Minister’s decision.
77 If, contrary to the above, the Minister's decision under s 19(4A) miscarried in some way, this would not invalidate the Lease. I return to this issue below. It should be said here, however, that s 19(6) makes Dr Gondarra’s claim for relief unsustainable. This is because s 19(6) expressly preserves the validity of a grant, transfer or surrender of an estate or interest in land if the Land Council fails to comply with s 19(5), unless the person to whom the grant, transfer or surrender was made procured the direction of the Land Council by fraud. If, then, the Minister failed to observe an implied obligation to be (rationally) satisfied that the Land Council had consulted adequately with an Aboriginal community or group affected by the proposed grant and this failure vitiated the Minister’s consent, it does not seem to me that such a failure could affect the validity of the grant. This is because it would be anomalous if the Minister's failure to be (validly) satisfied that the Land Council had fulfilled its obligations under s 19(5) invalidated a lease when, pursuant to s 19(6), the failure of the Land Council in fact to fulfil those obligations would not lead to that result. This outcome would be all the more extraordinary given that s 19(4A) is not expressly conditioned upon the Minister’s satisfaction that a Land Council has complied with its obligations. Bearing these considerations in mind, I do not consider that the legislature can have intended invalidity of a lease to flow from any error of the alleged kind in the Minister’s consent under s 19(4A). It does not do so.
Section 27
78 The gravamen of Dr Gondarra’s case at trial centred on ss 23 and 27 of the Land Rights Act.
79 Section 27 of the Land Rights Act, entitled “Powers of Land Council” confers various powers on Land Councils, including a general power to do “all things necessary and convenient to be done for or in connexion with the performance of its functions”: s 27(1). This said, the relevant provisions governing the entry into the Agreement are contained in s 27(3) and (4) of the Land Rights Act. In this case, the amount involved, under the Agreement, for the purposes of s 27(3), was in excess of $1 million and, accordingly, the Minister’s approval was required by that provision.
80 The exercise of the Minister’s power to give or withhold approval under s 27(3) was subject to the requirement that the Minister must be satisfied that the Land Council has, in taking the action that has resulted in the proposed contract, complied with any duty imposed on it by s 23(3): see s 27(4). Section 23(3) expands on s 23(1)(c), which provides that it is a function of the Land Council to consult with traditional Aboriginal owners and other Aboriginals interested in the Aboriginal land in the area of the Land Council.
81 Section 23(3) stipulates that, in carrying out its functions with respect to any Aboriginal land, the Land Council must “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 the land held by a Land Trust”, unless the Land Council is satisfied in accordance with s 23(3)(a) and (b). As in s 19(5), these paragraphs distinguish between the traditional Aboriginal owners and any Aboriginal community or group that may be affected by the proposal.
82 Section 23(3) is a complex provision. Section 23(3) in terms requires that, in carrying out its functions with respect to Aboriginal land, a Land Council have regard to the interests of, and consult with, the traditional Aboriginal owners and any other Aboriginals interested in the land. Section 23(3) in terms also prevents a Land Council from taking “any action” in any matter in connection with land held by a Land Trust, including the giving or withholding of consent, unless the Land Council is satisfied that: (1) the traditional Aboriginal owners “understand the nature and purpose of the proposed action and, as a group, consent to it (s 23(3)(a)); and (2) “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” (s 23(3)(b)).
83 Thus, pursuant to s 27(4), the matters of which the Minister was required to be satisfied were:
(a) that the NLC had regard to the interests of the traditional Aboriginal owners of the Relevant land and any other Aboriginal interested in the Relevant Land;
(b) that the NLC consulted with the traditional Aboriginal owners of the Relevant Land and any other Aboriginals interested in the Relevant Land;
(c) that the NLC was satisfied that the traditional Aboriginal owners of the Relevant Land understood the nature and purpose of the Agreement and, as a group, consented to it; and
(d) that the NLC was satisfied that any Aboriginal community or group that may be affected by the Agreement (as proposed) had been consulted and had had adequate opportunity to express its view to it.
84 The Minister’s s 13 statement of reasons show that the Minister in fact considered whether she was satisfied of these matters and that she was in fact so satisfied: see s 13 statement of reasons, paragraphs 37 to 40.
85 The Minister was not herself required to be satisfied that the traditional owners “understood the nature and purpose of the Agreement and consented to it” (see ss 23(3)(a)) and 27(4)). Nor was she required to be satisfied herself that, in the terms of s 23(3)(b), “any Aboriginal community or group that may be affected” had been consulted and had had an “adequate opportunity to express its view to the Land Council”. In these respects, the Minister had only to be satisfied that the NLC was satisfied that these standards had been met.
86 Significantly for this case, however, the Minister was herself required (by the combination of s 27(4) and the terms of s 23(3) (prior to paragraphs (a) and (b)) to be satisfied that the NLC had in fact had “regard to the interests of, and … consult[ed] with, the traditional Aboriginal owners … and … other Aboriginals interested in the” Relevant Land. These two groups were, however, determined by the NLC. This is evident from s 23(3), as well as from other provisions of the Land Rights Act: see, especially, s 24; and Myoung at 330 [22]; Alderson v NLC at 359-360, 362; and Tapgnuk at 9. Thus, the Minister rightly accepted that, as Dr Gondarra submitted, by virtue of s 27(4), the Minister was required to be satisfied that the NLC had complied with the duty to consult to which s 23(3) gave rise, before giving her approval to the Agreement under s 27(3). It was this state of satisfaction that Dr Gondarra said had miscarried.
87 As noted above, in submissions, Dr Gondarra submitted on occasion that the state of satisfaction miscarried because the Minister failed to take into account a relevant consideration, being whether the NLC complied with the duty to consult to which s 23(3) gave rise. In other submissions, Dr Gondarra put this differently, submitting that the Minister asked herself the wrong question because she misunderstood what “consultation” required. Dr Gondarra also submitted that based, on the information before her, the Minister could not have been rationally satisfied that the NLC had complied with the duty to consult to which s 23(3) gave rise. This latter formulation was the preferred formulation in the oral submissions made by counsel for Dr Gondarra at the hearing. In any event, these various ways of alleging a failure to reach the requisite state of satisfaction covered much the same ground. They made one essential point: that is, that it was not open to the Minister to conclude on the information before her that the NLC had consulted with Dr Gondarra and those he claimed to represent: see s 23(3).
88 It is worth emphasising that Dr Gondarra only challenged the Minister’s satisfaction that the NLC had consulted with the persons whom the NLC had determined were Aboriginals interested in the Relevant Land (not being the traditional owners). Dr Gondarra did not challenge the NLC’s satisfaction that any Aboriginal community or group that may be affected by the Agreement had been consulted and had had adequate opportunity to express its view to it. Nor did Dr Gondarra assert that the NLC did not, as a matter of fact, consult with the traditional Aboriginal owners of the Relevant Land and other Aboriginals (including the Dhurili Nation) interested in the Relevant Land. There was thus no challenge to the adequacy of the NLC’s consultation. This made the submission that it was irrational for the Minister to be satisfied that there had been adequate consultation at times difficult for the applicant to articulate clearly. Ultimately, as will appear below, this narrow challenge is unsustainable.
The effect of a duty to consult
89 Before examining the material before the Minister at the time she gave her approval under s 27(3), it may be helpful to note a number of matters because they form the backbone of the subsequent analysis. The first is the meaning and effect of a duty to “consult”. The word “consult” is, clearly enough, a word in ordinary English usage. A duty to “consult” signifies that the person on whom the duty is imposed must “confer with” another or others: see Shorter Oxford English Dictionary (Oxford University Press, 6th edition, 2007); Macquarie Dictionary (Australian Macquarie Dictionary Publishers, 6th edition, 2013). Further, in the context of s 23(3), the duty requires that the person on whom the duty is imposed afford “a meaningful opportunity” for those to be consulted to present their views: see QR Ltd at 525-527 [40]-[45] (Logan J) and Kutlu at 198-199 [71]-[72] (Flick J). How that opportunity is to be afforded depends on the circumstances that call for the consultation and the circumstances in which the consultation is made. At the very least, to adopt Logan J’s language in QR Ltd at 527 [45], the NLC was required to say to the Aboriginal communities and groups interested in the Relevant Land, “[w]e are thinking of making an agreement with Rio Tinto (and others) that will involve renewing the lease over the red mud pond; what have you got to say about that?” Further, in this case, the Land Rights Act, especially s 23(3), gave some indication of what consultation did and did not require.
90 The circumstances bearing on the nature of the consultation included the history of the mine (which had been operating since the 1960s), the mine’s existing use of the Relevant Land for disposal of the red mud residue, and the fact that the proposed agreement involved the renewal of an existing lease. As Mr Lloyd SC observed, “it was, broadly speaking, well known what Rio Tinto did”. Further, whilst Dr Gondarra’s claim made for the Dhurili Nation that it was the traditional Aboriginal owner was well known to the NLC, the NLC had rejected that claim upon the basis of research conducted at its request. Nonetheless, as the correspondence referred to below shows, Dr Gondarra maintained his claim of traditional ownership and this claim heavily contoured his complaints to the Minister about the NLC’s lack of consultation. In particular, the claim for traditional ownership mostly explained Dr Gondarra’s insistence that he, as the representative of his group, be given a copy of the Agreement and the Lease.
91 Had the NLC recognised Dr Gondarra’s claim for his group’s traditional ownership, then he, as the group’s representative, would have been entitled to have the terms of the Lease and the Agreement explained to him. This much was recognised by Muirhead J in Alderson v NLC at 361. As an authorised representative and traditional owner, he would also, so it seems to me, have been entitled to a copy of the Lease and Agreement had he sought it. Alderson v NLC was not, however, concerned with the position of Aboriginal groups that the NLC did not recognise as the traditional owners. I consider that, for this reason, Dr Gondarra’s reliance on Alderson v NLC is misplaced. Alderson v NLC is to be distinguished because it concerned the position of the traditional Aboriginal owners, rather than, as in this case, the position of Aboriginal communities or groups not recognised by the relevant Land Council as the traditional owners.
92 The distinction between the position of Aboriginal people recognised, by in this case, the NLC, as traditional Aboriginal owners and the position of Aboriginal communities or group that are recognised as communities or groups that interested in the land (and who may be affected by the proposed action) is one drawn in s 23(3) itself. As already noted, much the same distinction is drawn in s 19(5) of the Land Rights Act. Whilst s 23(3)(a) requires the Land Council to be satisfied that the traditional owners understand the nature and purpose of the proposed action (here, entry into the proposed agreement involving the renewal of the lease) and to consent to it (as a group), s 23(3)(b) required only that the Land Council be satisfied that any other Aboriginal community or group that may be affected (not being the traditional owners) had been consulted and given an adequate opportunity to express its view. That is, as noted already, the different forms of requisite satisfaction reflect the different relationships to the land in question. Section 23(3)(a) contemplated that, particularly since their consent was necessary, the traditional Aboriginal owners were to be better informed about the proposal than those Aboriginal communities or groups who may simply be affected by it.
93 The importance of the distinction is also apparent when other parts of the Land Rights Act are considered: see, for example, ss 35 and 42. As the much earlier discussion shows, under the Land Rights Act, the traditional Aboriginal owners acquire, directly or indirectly, financial interests in land dealings arising from their ownership of the land (such as those effected by the Agreement and the Lease), which other Aboriginal communities and groups do not acquire.
94 In order to discharge its consultative obligation under s 23(3), the NLC had to say to Aboriginal groups interested in the land (but not recognised by it as traditional owners) that it was thinking of making an agreement with Rio Tinto (and others) that would involve renewing the lease over the red mud pond and to ask for their views about this proposed action. I reject Dr Gondarra’s submission that it was necessary for the NLC to provide him, either on behalf of the Golumala clan or the Dhurili Nation, with a copy of the Agreement (which included the Lease). This is to disregard the significant differences between the position under the Land Rights Act of traditional Aboriginal owners and other interested Aboriginal groups (including those who may be affected by the proposed agreement). The Land Council was required to inform these other Aboriginal groups of the general nature of the proposal and, if it were known, how it might affect them. In the case of Dr Gondarra and his group, the NLC was required to give a broad indication of the proposal and what was being negotiated, so that they could appreciate what action was being considered (i.e., for example, that the red mud pond lease was up for negotiated renewal). At the same time, the NLC was required to seek their views. This did not require the NLC to provide copies of the contracts or even details of the financial arrangements made under them: the precise contractual and financial arrangements did not concern them. This concern was strictly one that the Land Rights Act allocates to traditional Aboriginal owners. The fact that the NLC stated that at the relevant time the Agreement (including the Lease) was “commercial-in-confidence” provides no basis for inferring that the NLC failed to discharge its obligation to consult Dr Gondarra and his group.
95 Consultation could not occur and views could not be expressed without some dialogue between the NLC and Aboriginal groups interested in the land (not being traditional owners). In such a dialogue, the NLC and the groups would doubtless ask various questions and give information. There is, however, no evidence that this consultative process was not undertaken by the NLC, nor that the Minister was made aware of any such evidence at the time she made her decision. Indeed, as already noted, Dr Gondarra did not assert that there was in fact any failure in the consultation process. In these circumstances, it is unnecessary for the Court to discuss in any further detail precisely what was required by way of consultation in the particular case.
96 As indicated above, I reject Dr Gondarra’s central submission that it was not open to the Minister to form the requisite satisfaction under s 27(4) because the Minister knew that he and his group had not been given a copy of the Agreement and Lease.
97 For much the same reasons as those stated above, I would also reject the submission made on Dr Gondarra’s behalf (to the extent that it was open to him to make it) that the Minister should have inferred from the continuing negotiations referred to in her letter of 19 April 2011 that the consultations were inadequate. As stated above, it was enough that Dr Gondarra and his group were given a broad indication of the proposed agreement and what was being negotiated, so that they could appreciate what action was being considered and in turn respond to it.
98 I note at this point that, on the last day of the hearing, an issue arose as to the relevance of two documents (being two emails dated 28 March and 1 April 2011) that the applicant sought to add to Exhibit A1. At the hearing, counsel for Dr Gondarra sought to rely on these two documents solely to support the inference that the final version of the Agreement presented to the Minister was not the subject of the consultations required under the Land Rights Act. In supplementary written submissions, Dr Gondarra also sought to rely on the documents to support the further inference that “substantial elements of the Agreement (not just matters of drafting) were negotiated following the completion of consultations in October 2010”.
99 This second submission must be rejected. The two documents indicate no more than, in finalising the drafting, a potential difference of position had “become evident” that necessitated the solicitors for the Rio Tinto parties obtaining further instructions. The documents do not show that there was a matter of substance that called for further consultations. Moreover, the documents indicate only that the Rio Tinto parties raised the matter, not that the matter was ultimately reflected in the final agreement.
100 I would also reject the first submission. Even if the Minister knew that the final version of the Agreement (as executed) was not the subject of consultations with Dr Gondarra and his group, that knowledge would not impugn her satisfaction that the consultation required by s 23(3) of the Land Rights Act had taken place. Consultation with Aboriginal people interested in the land, and those whom the Land Council considers are the traditional Aboriginal owners, does not require disclosure of the final written form of any relevant agreement. Section 27(4) is clear: it requires the Minister to consider and reach a state of satisfaction as to whether the Land Council has, “in taking the action that has resulted in the proposed contract”, complied with any duty imposed by s 23(3). As already stated, a purpose of consultation is to allow Aboriginal people interested in the land to express views on the broad aspects of any proposed agreement. Those views may inform what is ultimately agreed and the reduction of that agreement into a “lawyered” document (i.e., the final document before the Minister). The consultation required under s 23(3) does not presuppose that the detailed negotiation and legal drafting has been completed before the consultation takes place. As already stated, the position of Aboriginal people interested in the land (who are not the traditional Aboriginal owners) in relation to consultation is not to be assimilated to the position of traditional Aboriginal owners: the consultation to be afforded the traditional owners must be such that the Land Council can be satisfied that they “understand the nature and purpose of the proposed action and, as a group, consent to it”. This is not necessary in order to afford to Aboriginal people interested in the land their particular statutory right to consultation. It is permissible for such consultation to be at a higher level of generality. There is nothing in the statutory text to warrant the proposition that the final form of the contract to be executed must be the subject of consultation. Further, there is nothing before me, even including the emails of 28 March or 1 April, which indicates that the terms of the proposed contract had relevantly changed at that level of generality.
101 For the above reasons, I do not consider the two further documents that the applicant sought to add to exhibit A1 to be relevant and admissible.
Was it open to the Minister to be satisfied under s 27(4)?
102 As noted above, Dr Gondarra’s claim was essentially that it was not open to the Minister to conclude that the NLC had consulted with Dr Gondarra and his group (it being accepted that they were Aboriginals interested in the Relevant Land) under s 23(3).
103 Where a state of satisfaction is achieved without any evidence upon which the decision-maker could form such a state of satisfaction, the state of satisfaction is vitiated by error. The same is true for a state of satisfaction that is “illogical or irrational” in the relevant sense. That is, as Crennan and Bell JJ said in SZMDS at 649-650 [135]:
Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision maker might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if a decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
104 This formulation has been applied by Full Courts of this Court in Tisdall v Webber (2011) 193 FCR 260 at 297 [126] (Buchanan J, Tracey J agreeing) and SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 at 22-23 [84] (McKerracher J); 27 [113] (Reeves J). Since I would, for the reasons stated below, reject the proposition that the Minister’s state of satisfaction was vitiated by the suggested error, it is unnecessary to consider the differences in the approaches evident in the other judgments in SZMDS: compare MZXSA v Minister for Immigration and Citizenship (2010) 117 ALD 441 at 451 [45].
105 “Irrational” and “illogical” in this context are analogues of “arbitrary” or “perverse” and are not used with a lesser colloquial meaning that may be applied where the words are introduced in debate to emphasise the degree of dissent from a disputed conclusion or point of view: see Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 at 375-376 [40]-[41] and the authorities there cited. It goes almost without saying that this ground of error does not permit review of the Minister’s decision on the basis of the merits of that decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
106 In order to assess Dr Gondarra’s submission more broadly that it was not open to the Minister to conclude that the NLC had consulted with Dr Gondarra and his group, it is necessary to have regard to what was before the Minister at the relevant time. The parties principally relied on items of correspondence and the NLC’s May 2011 submissions. In order to understand their submissions, it is necessary to set this material out in some detail.
material before the minister
107 The material before the Minister included the following correspondence:
Letter dated 11 October 2010 from Midena Lawyers (Dr Gondarra’s former solicitors) to the NLC;
Letter dated 18 October 2010 from the NLC to Midena Lawyers;
Letter dated 22 October 2010 from Midena Lawyers to the Minister (attaching the above letters and various other letters);
Letter dated 19 November 2010 from Maddocks (Dr Gondarra’s current solicitors) to the NLC;
Letter dated 23 November 2010 from the Minister to Midena Lawyers;
Letter date 14 December 2010 from the NLC to Maddocks;
Letter dated 17 December 2010 from Maddocks to the Minister;
Letter dated 22 December 2010 from the Department to Maddocks;
Letter dated 20 January 2011 from the NLC to Maddocks;
Letter dated 12 May 2011 (mistakenly dated “2010”) from the Department to Maddocks;
108 This correspondence showed:
(1) As at 11 October 2010, Dr Gondarra knew that negotiations were ongoing “for the purpose of reaching an agreement … with respect to the occupation and use by Rio Tinto of [the Relevant Land], known as the ‘Red Pond Area’”.
(2) Dr Gondarra claimed that his group (referred to as the Dhurili Nation) was the traditional Aboriginal owner and that the NLC had not consulted his group in that capacity.
(3) As at 11 October 2010, Dr Gondarra had sought an undertaking that his group be consulted on, and their consent sought to, the proposal on the basis of their traditional ownership and indicated that, if this were not forthcoming, he would make application for an injunction.
(4) In October 2010, the NLC responded by stating that, if acceptable to Dr Gondarra, it would undertake to give seven days’ notice of execution of the Lease “for red mud disposal”, but this lapsed as at 18 October 2010, in the absence of a response from Dr Gondarra;
(5) By at least 22 October 2010 (and reiterated on 14 December 2010) Dr Gondarra knew that the NLC rejected his claim concerning traditional Aboriginal ownership of the Relevant Land and that his group’s consent to the Agreement was required.
(6) As at 22 October 2010, Dr Gondarra had sought a “full council meeting of the NLC” to determine traditional Aboriginal ownership.
(7) As at 22 October 2010, Dr Gondarra sought the Minister’s undertaking not to give approval under s 27(3) without his group’s consent and stated that, if this were not forthcoming, he would seek an injunction.
(8) As at 19 November 2010, Maddocks sought from the NLC a copy of the proposed Agreement to enable consultation with his group as the traditional Aboriginal owners.
(9) As at 23 November 2010, and re-iterated on 22 December 2010, the Minister indicated that her Department would consult Dr Gondarra before making a decision. On 22 December 2010, the Minister stated that she and the Department “will ensure that the decision making process following any application received from the NLC on this matter accords with the principles of natural justice”, in the sense that “we will be seeking to provide the NLC with any future correspondence from Maddocks that contains information relevant to a potential application to the Minister from the NLC on this matter and will be requesting that the NLC consent to a reciprocal arrangement in this regard”.
(10) As at 14 December 2010, the NLC stated that it had conducted extensive consultations with Yolngu clans and affected communities or groups (which included Dr Gondarra and his group) and had regard to their interests. The NLC affirmed that it had complied with the requirements of the Land Rights Act.
(11) As at 17 December 2010, Maddocks sought from the Minister “immediate written notice when you have reached a determination as to whether the NLC has complied with the requirements of the Act in relation to the Agreement, specifically the requirements of sections 19 and/or 23 of the Act” and 30 days’ notice “before you make any decision under sections 19 or 27 to provide or withhold consent to the NLC to proceed with the Agreement”.
(12) As at 20 January 2011, the NLC advised Maddocks that it should respond to the NLC “by detailing the legal and factual basis of [Dr Gondarra’s] position”, noting that “[t]he function of identifying the traditional Aboriginal owners of Aboriginal land is vested in land councils (not the Minister)”.
(13) As at 20 January 2011, the NLC advised that “the expiry of Rio Tinto Alcan’s existing leases for its Gove operations on 29 May 2011 means that time is increasingly of the essence”; that “[y]our arrangement with the Minister will necessarily require the NLC … to consider your client’s position and advise the Minister”; and “[t]his consideration ought to commence at first opportunity and without delay”.
(14) As at 12 May 2011, the Minister knew that Dr Gondarra had a copy of the NLC’s May 2011 submissions, although he did not have a copy of the proposed Agreement and the Lease.
109 At trial, Dr Gondarra’s submissions tended to downplay the significance of the NLC’s May 2011 submissions to the Minister, but these submissions were crucial so far as the Minister’s decision-making and state of satisfaction were concerned. In the May 2011 submission, the NLC expressly stated that it was satisfied that Dr Gondarra’s group had been consulted and had had an adequate opportunity to express its view. In the absence of material that showed the Minister that this statement was wrong, then Dr Gondarra faced a significant hurdle in persuading the Court that it was not rationally open to the Minister to be satisfied that the NLC had complied with its duty to consult under s 23(3) of the Land Rights Act.
110 The NLC’s May 2011 submissions to the Minister was lengthy and detailed. To appreciate the nature and extent of the information that it conveyed, it is appropriate to set out its principal parts, particularly those concerned with consultation and negotiation. The submission relevantly read:
1. INTRODUCTION
…
Pursuant to its statutory functions, and on the basis of longstanding and regularly updated anthropological advice, the NLC is satisfied that members of the Gumatj, Rirratjingu and Galpu groups are the traditional Aboriginal owners of areas of Aboriginal land subject to the Gove operations, with members of the former two groups being the traditional Aboriginal owners of areas of Aboriginal land subject to the proposed red mud pond lease.
The NLC is satisfied that the traditional Aboriginal owners of the relevant land understand the nature and purpose of the proposed agreement and respectively consent to it. The NLC is also satisfied that the traditional Aboriginal owners of the relevant land understand the nature and purpose of the proposed red mud pond lease and respectively consent to it.
The NLC consulted with other Aboriginals interested in the land and had regard to their interests and the interests of the traditional Aboriginal owners, and has consulted with Aboriginal communities or groups that may be affected by the grant of the red mud pond lease and the agreement.
Subject to obtaining Ministerial consent under s 19(5) of the Land Rights Act and approval under s 27(3), the agreement and grant of a red mud disposal lease was approved by the NLC Full Council on 13 October 2010.
…
2. BACKGROUND
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The negotiations between the parties for the proposed agreement have concerned not only a future red mud pond lease, but also other Aboriginal land subject to the leases with a view to ensuring ongoing security regarding those leases and all of the Gove operations, and also to resolve other issues. The parties’ objective is to ensure a longlasting partnership which resolves historic differences and deliver socio-economic and development outcomes which recognise traditional ownership and broadly benefits traditional owners and Yolngu in the region.
The agreement identifies a financial package which reflects the profitability of the Gove operations, as well as the provision of certain land in Nhulunbuy to traditional owners for development, a partnership for future bauxite mining on the Dhupuma Plateau, other commercial opportunities, employment promotion, environmental protection and cultural recognition. The agreement provides for good governance by traditional owner corporations with oversight both by Rio Tinto Alcan and the NLC pursuant to its statutory functions, so that expenditure will substantially relate to cultural enhancement, sustainable economic development, and the social well-being of traditional owners (including education, training, business development and health programs).
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3. STATUTORY PROVISIONS
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4. TRADITIONAL ABORIGINAL OWNERSHIP
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The NLC is also satisfied that members of the Gumatj and Rirratjingu groups are the traditional Aboriginal owners of areas of Aboriginal land subject to the proposed red mud pond lease (the lease area is predominantly Rirratjingu, with a small portion being Gumatj).
This advice is based on an examination of an extensive body of anthropological literature as well as field research …
There are a number of longstanding disputes in the Gove region which the NLC has consistently resolved in accordance with the above research. First, the matrilineal descendants of the Lamamirri or Lamami group claim that they should also be recognised as traditional owners of Gumatj country on the Gove Peninsula. These matrilineal descendants include the Reverend Djiniyini Gondarra who resides at Galiwinku on Elcho Island, and whose claim was the subject of correspondence in 2005 and 2006. The Lamamirri group has no patrilineal descendants.
…
The NLC’s anthropological advice that Yolngu clans, in particular the traditional Aboriginal owners as defined in the Land Rights Act, are organised on the basis of patrilineal descent was confirmed by Selway J of the Federal Court in the 2005 Blue Mud Bay case.
Accordingly, since its inception the NLC has consistently rejected claims by matrilineal descendants of the Lamamirri to be the traditional Aboriginal owners of land subject to the Gove operations.
On 8 September 2005 the Reverend Gondarra wrote to the NLC on behalf of Lamamirri descendants and developed an additional proposition, namely that under Aboriginal tradition a clan or group (singular) will be responsible for the surface of the land as distinct from the subsurface which is said to be the responsibility of a number of clans (plural).
… [Other further claims made by Dr Gondarra were then detailed.]
Ultimately the various claims fall to be resolved by reference to the statutory definition of the term “traditional Aboriginal owners” in the Land Rights Act. The NLC’s anthropological advice since its inception has consistently demonstrated that members of the Rirratjingu group have spiritual affiliations that place them under “primary spiritual responsibility” for Dhuwa sites on Aboriginal land subject to the Gove operations (other than small areas which are Galpu). This means that they are “traditional Aboriginal owners” as that term is defined in the Land Rights Act. Members of other Dhuwa groups such as Datiwuy, Golumala, Marrakula and Marrangu possess traditional interests regarding those sites and land, however these interests are secondary to the primacy of the Rirratjingu group and they are not traditional Aboriginal owners for that land.
…
5. NEGOTIATIONS AND CONSULTATIONS
Consultations and negotiations commenced in late 2008 in Nhulunbuy in light of the above anthropological advice. The consultations distinguished between the grant of a lease of Aboriginal land for red mud disposal, and the renewal of other leases for the Gove operation.
The initial negotiation meeting in late 2008 included representatives of both traditional Aboriginal owners and other Yolngu groups, with subsequent negotiations with Rio Tinto Alcan being attended by representatives of the Gumatj and Rirratjingu groups and NLC representatives.
Further formal meetings were held in March 2009 attended by traditional Aboriginal owners in which the parties shared views as to an appropriate agreement and, in light of a formal offer being made, a negotiation meeting was on 28 May 2009 in Nhulunbuy. Prior to that time there were a range of ‘legacy’ issues which required resolution, such as the expiry of special purpose lease 215 on 21 January 2009 whereby the Gove Yacht Club and Wallaby Beach became Aboriginal land with ex-company houses now used as accommodation by Yolngu.
The next formal negotiation meeting occurred in Melbourne at the Arnold Bloch Leibler office on 13 October 2009, followed by further meetings in the second half of 2009 and in 2010 including on 5 February and 11 March at Darwin, 30 April at Nhulunbuy, 18 June at Darwin, and 6 and 7 October in Brisbane.
Consultations were conducted with traditional Aboriginal owners and other interested Yolngu groups or persons and affected Aboriginal communities or groups. These meetings occurred on 25 June 2010 at Nhulunbuy, 2 July 2010 at Nhulunbuy, 29 July 2010 at Nhulunbuy, 12 August 2010 at Galiwinku (Elcho Island), 13 August 2010 at Gapuwiyak, 26 August 2010 at Dhalinbuy, and 1 September 2010 at Yirrkala. Interested persons from a number of outstations including Birany Birany, Gan Gan, Barikirra, Garthalala, Wandawuy, Gurrumurru, Baniyala, Dhuruputjpi, Gulkulwuy and other areas were variously invited to attend. Additional meeting specific to the proposed red mud pond lease were held at Yirrkala on 13 July 2010, 8 September 2010, and 11 October 2010.
Consultations were scheduled at Dhalinbuy on 4 August 2010, Garthalala and Dhalinbuy on 18 August 2010, and Gan Gan on 19 August 2010 but did not proceed due to lack of traditional owner interest (from Dungarla at Garthalal, Marthalu at
Dhalinbuy). Consultations for Marrakulu and Marranguy and other interested Dhuwa clans were scheduled for 21 July 2010, but were cancelled at the request of Gundimulk Wanambi Marawili who wished for the meeting to be delayed. Further consultations were also scheduled for 29 July 2010 and cancelled at short notice on request by interested persons. A third meeting was scheduled for 3 August 2010 at Yirrkala but the groups declined to meet. Further consultations were scheduled for 1 September 2010 at Yirrkala. Although charters were provided for these groups and senior people were present in Yirrkala they declined to attend. Various of these persons had previously been consulted or met separately with NLC officers, and were known to support the agreement. Ample opportunity was provided to all interested Aboriginal persons and affected communities or groups to attend consultation meetings.
Yolngu groups and persons consulted include the Gumatj, Rirratjingu, Galpu, Marrangu, Marrakulu, Golumala, Ngayamil, Datiwuy, Dhalwangu, Djambarrpuyngu, Wangurri, Mangalili, Warramirri, Madarrpa, Djaput and Munyuka groups and members thereof, and Lamamirri matrilineal descendants. This includes all Yolngu clans whose members were represented in the 1971 Gove Land Rights Case.
At some meetings persons from some Dhuwa clans claimed that they, rather than the Rirratingu, were the traditional Aboriginal owners of Dhuwa country subject to the Gove operations. The NLC responded that it was cognisant of these claims and their basis, but that on the basis of longstanding and regularly updated anthropological advice the NLC remained satisfied that only members of the Gumatj, Rirratjingu and Galpu groups have primary spiritual responsibility for sites and land subject to the Gove operations and thus that they are the traditional Aboriginal owners of that land. The NLC also advised that it recognised members of other Yolngu clans had traditional interests in that land, with the consultative process providing an opportunity for consideration of any concerns.
The Gumatj, Rirratjingu and Galpu traditional Aboriginal owners each consented to the agreement, and the former two groups consented to the grant of the red mud pond lease.
There was substantial support expressed for the agreement from other Yolngu groups and persons.
6. DHURILI NATION (DATIWUY, GOLUMALA, MARRAKULU AND MARRANGU CLANS)
6.1 Claims by Dhurili Nation
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Reverend Gondarra acknowledged that the NLC had never accepted the Dhurili Nation position: “They have never done that” and “have been the problem from ever since when the Gove Peninsula mining has begun”. He also acknowledged that the NLC’s consultations had included “representatives of the Dhurili Nation” (which he said was “one or two” persons), and concluded by threatening “a legal challenge”.
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6.2 NLC response to claims
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The NLC’s position is supported by material which is coherent, cogent and compelling. The test, however, is not whether the Minister considers that the Gumatj, Rirratjingu and Galpu are the traditional Aboriginal owners of land subject to the Gove operations. The function of determining traditional Aboriginal ownership is vested in Land Councils, not the Minister.
Rather, the question to be addressed is whether the Minister should be satisfied that the NLC has properly performed its statutory functions in identifying the traditional Aboriginal owners of land, consulting with them and ascertaining whether they consent to the proposed agreement and lease, and consulting with other Aboriginals interested in the land and with any affected Aboriginal community or group.
It is submitted that the information herein establishes that the NLC has properly, comprehensively and conscientiously performed its statutory functions, including in relation to identifying traditional Aboriginal owners and consulting with them and other interested Aboriginals and affected Aboriginal communities or groups.
It follows, it is submitted, that the contrary claims made by or on behalf of the Dhurili Nation have no basis.
Specifically, it is not the case as is submitted by Mr Midena that “the NLC has not complied with lawful constraints that ensured that its decisions are neither arbitrary or partial.” In fact the NLC has carefully considered claims made by the Dhurili Nation and its constituent clans or members over many years and consulted with them, and has resolved those claims by reference to anthropological advice and application of the statutory terminology.
Secondly, contrary to Mr Midena’s submission, the anthropological research and process implemented by the NLC accorded the Dhurili Nation (and its constituent clans or members) every “opportunity to present evidence of its interests in the affected land [and] to address any other evidence held by the NLC”. The NLC’s consultative process regarding the proposed agreement provided a further opportunity for the Dhurili Nation to raise concerns and, where this occurred, the NLC properly responded to those concerns.
Thirdly, contrary to Mr Midena’s submission, the NLC’s consultations were comprehensive, were attended by representatives of all interested Yolngu groups including those associated with the Dhurili Nation, and the process accorded a more than “adequate opportunity” for interested Aboriginals and affected Aboriginal communities or groups “to express their views to the NLC” and to attend meetings (if they wished).
Fourthly, the NLC Full Council meeting on 13 October 2010 was organised in accordance with standard procedures with all members notified and arrangements made for their attendance. The meeting was well attended, and there was overwhelming support for the resolution in favour of the proposed agreement and lease. The NLC does not accept, as submitted by Mr Midena, that two members were not notified of the meeting.
Fifthly, the submission put by Mr Midena and Maddocks that their client’s claims should be resolved by a hearing before the NLC Full Council with each group provided with funding for separate legal representation and anthropological advice would render it impossible for statutory functions to be performed in accordance with tight development deadlines …
…
Eighthly, contrary to Maddocks’ submission, it is not the case that “the NLC has had every opportunity to engage expeditiously with our clients in relation to this matter and has failed to do so”. In fact the NLC’s consultative process provided every opportunity to the Dhurili Nation, particularly the Datiwuy, Golumala, Marrakula and Marrangu clans, to participate in consultation meetings and, in fact, members of the Nation and those clans did so.
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111 Dr Gondarra sought to impugn the Minister’s decision to approve the Agreement under s 27(3) on the basis that, in so far as her state of satisfaction relied on the NLC’s submission, the submission contained mere assertions about the NLC’s compliance with its duty and did not provide information about what the NLC told interested Aboriginal groups or the groups’ responses. As already noted, Dr Gondarra also relied on the fact that, in his correspondence with the Minister, he told the Minister that there had been a failure to consult adequately because he had not been given a copy of the Agreement and the Lease.
112 As already stated, the Minister was not in error in considering that the NLC was not obliged to provide a copy of the Agreement and the Lease to discharge its duty to consult. This matter can be put to one side. As the above passages show, the NLC’s May 2011 submissions provided material that supported its own state of satisfaction as to its consultation with interested or affected Aboriginal groups, including Dr Gondarra’s stated groups – the Golumala clan and the Dhurili Nation – and their opportunity to express their views. The NLC’s May 2011 submissions contained express statements to this effect and provided material to support its view. The submission contained much more than mere assertion; it contained information about the consultation process, although it did not contain details about what was said in these consultations. Such details were not required by the Lands Rights Act; and, having regard to the material before the Minister at the time she made the challenged decisions, such details were not required to enable her to make her decisions under the Land Rights Act.
113 Furthermore, the Minister received further material after the NLC’s May 2011 submissions and before she made the challenged decisions. In order to complete the picture of the material before the Minister at this time, it is necessary to have regard to the following correspondence.
114 By letter dated 12 May 2011 addressed to the NLC and copied to the Minister, Maddocks responded to the NLC’s May 2011 submissions, focussing only on procedural matters (including the NLC’s failure to provide a copy of the Lease and the Agreement) and “reserv[ing] their position with respect to the substantive issues raised in the Submission”. That is, Dr Gondarra did not respond at that date to the substantive matters in dispute as concerned him and his group.
115 The NLC responded to Dr Gondarra, by letter dated 16 May 2011 and copied to the Minister. Referring to its letters of 14 December 2010 and the NLC’s May 2011 submissions, the NLC maintained that it had previously addressed Dr Gondarra’s claim that: (1) his group were the traditional Aboriginal owners of the Relevant Land; and (2) his group had not been consulted. It also said, relevantly, that:
Despite adequate opportunities since 14 December 2010, your client has not made any effort to respond to matters of substance and explain why the NLC’s position is incorrect or raise additional information for consideration. …
Moreover, your client has had ample opportunity since at least 23 July 2008 to agitate and formalise its concerns, when public statements as to negotiating an agreement with Rio Tinto Alcan were made by Galarrwuy Yunupingu and Dwalpi Marika – in their recognised capacity as Gumatj and Rirratjingu traditional Aboriginal owners of land subject to the Gove operations – at the Prime Minister’s community cabinet meeting in Yirrkala. …
Nonetheless, you allege undue delay by the NLC in responding to your client, an allegation which is contrary to the facts and has no basis. …
In circumstances where your client seeks to erect a claim that natural justice has been denied, it was incumbent, it is submitted, on the Dhurili Nation to formalise its concerns at the earliest opportunity, including by responding to the NLC’s written position as to matters of substance from 14 December 2010. …
…
You suggested that the NLC’s unpreparedness to provide your client with a copy of the proposed agreement and lease was “not only contrary to the requirements of natural justice but also entirely unreasonable”, and requested that your firm should receive a copy on a confidential basis with your client receiving a redacted version so as to enable you to advise your clients as to the impact of the proposed agreement and lease.
You also submitted that, in your view, “the Minister will be unable to fulfil the assurance she provided to us in her letter of 22 December 2010” unless a copy of these documents are provided.
However the issues of substance said to mean that Ministerial approval should not be given do not pertain to those documents, but to the NLC’s performance of statutory functions under s 23(3) and related provisions. …
…
You repeated Mr Midena’s formulation in subsequent correspondence, for example your letter to the NLC dated 19 November 2010 which stated:
To avoid doubt, the Dhurili Nation claims to be the traditional Aboriginal owner of the ‘red mud pond’ area and other areas which may be the subject of the Proposed Agreement.
…
It follows that resolution of your client’s claim does not require consideration of the proposed agreement and lease, which is not directed at the issues of substance raised in that claim.
Your client however may be assisted by information as to the boundaries of the ‘red mud pond’ area and other areas which may be the subject of the Proposed Agreement. To that end the maps attached to the NLC’s submission identified the land subject to the proposed agreement, including the last map which delineates the boundary of the proposed red mud pond lease …
In light of the above, while it is a matter for the Minister, the NLC does not accept that the principles of natural justice require that you be provided with a copy of the proposed agreement and lease. These documents do not concern the issues of substance which your client seeks to agitate. Insofar as you or your client may have been unaware of the general or precise boundaries of Aboriginal land subject to the proposed agreement and lease, that information has been provided and we trust may assist your client or its constituent clans or their members in relation to your firm’s submission to the Minister. We consider that the proposed agreement (and lease) itself, or other information therein, does not pertain to the matters which you and Mr Midena have advised are in issue.
We note, further, that there are other parties to the proposed agreement which have an interest in its confidentiality, including Rio Tinto Alcan (ie the lessees). We understand that the company and the other parties consider that the proposed agreement and lease is confidential to the parties.
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On 20 January 2011 the NLC requested that you further explain the legal and factual basis of your client’s position for the NLC’s consideration at first opportunity, rather than waiting until the time when Ministerial approval arose. …
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Likewise, as explained above, the claim in your letter that you cannot detail the legal and factual basis of your client’s position until you receive a copy of the proposed agreement and lease has no merit. The bauxite mining, alumina refinery and related operations at Gove are hardly uncertain or unfamiliar; their location and character has been publicly known for almost 42 years, and their continued operation pursuant to an option granted in 1969 will not significantly change that character.
It remains open to your client to respond as to its position. Insofar as the NLC is aware its detailed submission to the Minister responded to all matters of substance that your client has raised or may seek to raise. If there are other matters it ought to be a straightforward exercise to ascertain what they are, and advise accordingly. For example, if it is considered that there is a succession process of which the NLC is unaware, that information could be indicated. … If it is the case that the NLC omitted to accord an appropriate opportunity to certain communities or their members to participate in consultations, that claim could be detailed. If it is the case that the NLC’s expressed rationale for its position is misplaced, then reason for that view could be identified.
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116 Seven days later, on 23 May 2010, the Department wrote to Maddocks stating:
Proposed Rio Tinto Alcan (Gove) Agreement
In reference to our letter to you of 12 May 2011, we note that any comments from your clients on the NLC submissions as to traditional Aboriginal ownership and consultation matters and on any other issues were sought by no later than COB Thursday 19 May 2011. To date the Minister has not received any comments from your clients.
Given the context of the Minister’s decision (as set out in our 12 May correspondence to you) please be advised that should your clients provide comments after COB today it may not be possible for such material to be considered by the Minister.
117 Maddocks replied to the Department on the same day, stating again that:
Our clients reserve their position with respect to the substantive issues raised in the Submission … .
The letter, though lengthy, otherwise substantially repeated Dr Gondarra’s previous allegations, including those about traditional Aboriginal ownership and the provision of the Agreement and the Lease. The letter also asserted that “the [Minister’s] deadline … was entirely unreasonable”.
118 In addition, Maddocks sent a letter of 23 May 2011 to the NLC, which was also copied to the Minister. This letter gave a response to the NLC’s finding about traditional Aboriginal ownership. It also referred to meetings with representatives of the Dhurili Nation, stating:
Formal notice to the Dhurili Nation of the proposed new agreement and lease
In August 2010 representatives of the Dhurili Nation (including members from the Datiwuy, Marrakulu Marrangu and Golumala clans) attended a meeting at Nhulunbuy which was attended by David Farlam (an employee of the NLC), another staff member of the NLC from the Nhulunbuy regional office. At this meeting, Mr Farlam informed the representatives of the Dhurili Nation that the NLC and Rio Tinto were negotiating to sign a new agreement for the further grant of interests over parts of the Dhurili Nation land. Mr Farlam informed representatives of the Dhurili Nation that the NLC was negotiating only with the Gumatj and Rirratjingu clans with respect to this proposed new agreement.
…
The Dhurili Nation has not been invited to, or otherwise been given an opportunity to, attend and participate in meetings held by the NLC in relation to the proposed new agreement and lease. We are instructed that the NLC has not met with the Dhurili Nation, or consulted with it or its member clans, or obtained their consent to negotiate any new agreement or lease in relation to the Dhurili Nation land in a manner that is consistent with their traditional custom (or any formal or fair process).
…
On the basis of the traditional relationship between the Rirratjingu and the Dhurili Nation, including the covenant under Madayin law, our client is entitled to know what rights the Rirratjingu are prepared to consent to in respect of Dhurili Nation land over which they are merely custodians on behalf of the Dhurili Nation.
The peoples of the Dhurili Nation cannot be expected to understand, let alone express views about, the specific rights Rio Tinto Alcan will be granted over Dhurili Nation land without seeing the precise terms of the agreement and the lease. Nor can they properly understand whether compensatory payments will be made by Rio Tinto to persons or groups affected by the proposed new agreement and, if so, how those payments might be managed or distributed. Our clients do not consider the NLC is able to fulfil its obligations under the Act unless they are afforded an opportunity to review and comment on the actual agreements in issue.
119 It is clear, when this correspondence is considered as a whole, that, in substance, Dr Gondarra’s lack of consultation claim was substantially about the lack of consultation of his group (the Dhurili Nation) in their supposed capacity as the traditional Aboriginal owner; and that his claim regarding provision of the Agreement and the Lease largely stemmed from this. As indicated earlier, if Dr Gondarra’s group had been recognised as the traditional owner, then this would have been a tenable complaint; but his group was not so recognised and the complaint was not therefore sustainable.
No vitiating error
120 When all the material before the Minister at the time she made her decision to give her approval under s 27(4) is considered as a whole, including the various items of correspondence to which reference has been made and the NLC’s May 2011 submissions, Dr Gondarra’s claim – that it was not open to her rationally to be satisfied that the NLC had consulted with Dr Gondarra and his group in accordance with s 23(3) – must be rejected.
121 In the circumstances, having regard to the material that was before her at the time, it cannot properly be said that the Minister’s satisfaction – that the NLC had, in taking the action that has resulted in the Agreement (which included the Lease), complied with this duty to consult – was irrational or otherwise indicated relevant error. The material showed that: (1) there had been a lengthy and acrimonious dispute between the NLC and Dr Gondarra about the Dhurili Nation’s traditional ownership of the Relevant Land; (2) save for what appeared in the NLC’s May 2011 submissions (which was seemingly fully discussed), Dr Gondarra had given little further information as to why the NLC’s finding in this regard was wrong; (3) Dr Gondarra acknowledged that there had been numerous meetings between the NLC and Aboriginal communities and groups interested in the Relevant Land, including members of the Dhurili Nation, who might be affected by the proposed action; and (4) Dr Gondarra provided no specific details as to why the NLC’s consultation meetings were inadequate, save for the assertion that he and the Dhurili Nation needed to see the Agreement and the Lease. Further, Dr Gondarra’s claim that there had been a lack of consultation was apparently linked to, and flowed from, his claim concerning traditional Aboriginal ownership, in the sense that his was a complaint largely that he and his group had not been consulted as the traditional Aboriginal owners.
122 Leaving aside the position of the traditional owners, the manner in which a relevant Aboriginal group is to be consulted, including the extent and content of such consultation, will not be the same on every occasion. These matters will depend on the circumstances of the case. As s 23(3) itself indicates and other provisions (for example, s 25) of the Land Rights Act tend to confirm, decisions about these matters are principally matters for the relevant Land Council. I accept that, having regard to its composition, expertise and function, a Land Council is particularly suited to that task: see further Alderson v NLC at 8.
123 In addition, the substantial autonomy of Land Councils is consistent with the evident intention of the Land Rights Act (subject to certain exceptions) to afford to Land Councils and, through them, to Aboriginal communities and groups, a substantial capacity to determine the appropriate use of Aboriginal land, although, of course, in performing its functions, a Land Council is subject to judicial review under the ADJR Act: see, for example, Myoung.
124 To say that the Minister has a “supervisory” role, as submitted by counsel for Dr Gondarra, is apt to conceal both the role and expertise of Land Councils, and the amenability of their processes to judicial supervision. The use of the expression facilitated a submission that would have the Court impose a duty on the Minister to “second guess” the adequacy of a Land Council’s consultation process, in the sense that an Aboriginal group or its representative would be able to re-agitate an unfavourable Land Council decision before the Minister. That this would be the effect of the “supervisory role” submission is emphasised by the fact that Dr Gondarra did not challenge the NLC’s own state of satisfaction as to its consultation or the NLC’s decision to enter into the Agreement.
125 It has to be borne in mind that, in the NLC’s May 2011 submissions and in subsequent correspondence, the NLC, which was the expert body entrusted with determining traditional Aboriginal ownership under the Land Rights Act, had found, after considering what appeared to it to be the salient information, that Dr Gondarra’s group (whether the Golumala clan or the Dhurili Nation) was not a traditional Aboriginal owner of the Relevant Land and that his group should not be consulted in this capacity but, rather, as an Aboriginal group interested in the land and potentially affected by the proposed Agreement (and Lease). In this context, the NLC affirmed that it had comprehensive consultations with both traditional Aboriginal owners and other Aboriginal groups, including Dr Gondarra’s group. The NLC in effect rebutted Dr Gondarra’s generalised complaint about the consultation by identifying that numerous meetings, at particular dates, took place and that these meetings were attended by members the Golumala clan and the Dhurili Nation. Dr Gondarra made no response to the NLC’s claims that the consultations were comprehensive other than to say that he and his group had not been provided with the Agreement and the Lease – a statement that did not bear on the adequacy of the NLC’s consultation with them.
126 There is simply no evidence that Dr Gondarra and his group were not told sufficiently what was proposed. The correspondence makes it clear that, so far as necessary given the known history of earlier mining use of the Relevant Land, it was open to the Minister to conclude that the NLC (as the expert body) had in the course of consultation adequately conveyed what was being proposed. It was also apparent that Dr Gondarra and his group had ample opportunity to “present their views”: see QR Ltd; and [89] above.
127 Having regard to the circumstances outlined above, it cannot be said that the Minister’s satisfaction under s 27(4) that the NLC had consulted as required by s 23(3) was irrational, demonstrated a failure to address the correct question, or was vitiated by some other relevant error. That satisfaction was clearly open on the material before the Minister. As already stated, I reject the submission made on Dr Gondarra’s behalf that there could be no proper consultation for the purposes of s 23(3) unless Dr Gondarra and those he claimed to represent were given a copy of the Agreement and the Lease, whether immediately prior to execution or at some earlier time.
No duty to inquire
128 I would also reject the proposition, advanced in both Dr Gondarra’s written and oral submissions, that the Minister was under a duty to inquire further and failed to do so. First, the Minister was under no general duty to inquire in the sense that her failure to do so demonstrated error. There was, moreover, no duty to review, of the kind discussed in SZIAI. Rather, under s 27(3) and (4) of the Land Rights Act, the Minister was required to consider whether or not the NLC had complied with its duty under s 23(3).
129 The expression “duty to inquire” can be misleading. Speaking of the Refugee Review Tribunal (which, under its governing statute, engages in de novo merits review) French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in SZIAI at 436 [25] observed:
Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case.
(Citation omitted)
I note too that Le, to which Mr Bennett QC also referred, also involved the obligation of the Migration Review Tribunal, which was also a tribunal engaged in de novo merits review.
130 In contrast to the provisions of the Migration Act requiring the review tribunals to conduct a merits review, s 27 of the Land Rights Act, when read with s 23(3), does not impose on the Minister an equivalent or similar duty to review the decisions of the NLC in the sense that the Minister is to conduct a merits review. This renders reference to a duty to inquire less apposite than in Le and SZIAI.
131 In any event, a failure to inquire could only lead to an error if it is a failure to make an “obvious inquiry about a critical fact”: SZIAI at 436 [25]; compare Le at 172-173; and Minister for Immigration and Citizenship v Dhanoa (2009) 180 FCR 510 at 521-522 [50] (Jagot and Foster JJ). As noted earlier, Mr Bennett QC submitted that the Minister should have asked “What did you tell Dr Gondarra’s group when you consulted with them?” or “What did you tell them about the contents of the documents?”. The force of this submission depended in part on my acceptance of the proposition that Dr Gondarra was entitled to a copy of the Agreement and the Lease or substantially equivalent information. I have already rejected this proposition.
132 Bearing in mind the material that was before the Minister, and the circumstances disclosed by that material, including that the Minister had afforded the NLC and Dr Gondarra ample opportunity to respond repeatedly to each other’s views (in correspondence to which she was copied), it cannot be said that the Minister was required to make further inquiry. This is because it cannot be said that, in the absence of further inquiry, the Minister’s satisfaction under s 27(4) that the NLC had complied with its duty under s 23(3) was unreasonable or irrational.
133 In particular, the circumstances were not such as to require the Minister to ask the NLC, as the expert body, what precisely it had said at consultative meetings with Aboriginal groups, such as Dr Gondarra’s group. Dr Gondarra had ample opportunity to respond to the NLC and to specify the way or ways in which he said that the NLC’s consultations were inadequate. For the most part, Dr Gondarra’s claim was that the consultation was inadequate because his group was not consulted as the traditional Aboriginal owner and that, in this context, the NLC was obliged to provide it with a copy of the Agreement and the Lease. The NLC, upon whose recognition the traditional owner status of Dr Gondarra’s group depended, did not, however, accept that the his group was the traditional Aboriginal owner; and the NLC’s determination as to traditional Aboriginal ownership of the Relevant Land was not challenged in this proceeding. The NLC accepted that Dr Gondarra’s group was interested in the Relevant Land and consulted with its members on this basis alone. Further, the NLC also took the view that the Agreement and the Lease did not have to be disclosed to Aboriginal people interested in the Relevant Land or described in s 23(3)(b). The Minister also took the view that these documents did not have to be disclosed to Aboriginal people interested in the Relevant Land. For the reasons earlier stated, there was no error in this approach. The fact that the Agreement and the Lease had not been provided did not make it necessary for the Minister to make the inquiries indicated by Mr Bennett QC in order to avoid an inference that the Minister’s satisfaction was vitiated by error.
No need to approve the lease separately
134 Further, I reject the submission made on Dr Gondarra’s behalf at the hearing that, since the Lease was part of the Agreement, the Minister breached her obligation to approve the Lease under s 27(4) of the Land Rights Act. I consider that this is precisely what the Minister in fact did when the Minister gave approval under s 27(4). When regard is had to the Minister’s s 13 statement of reasons, it appears that, at the time of making the challenged decisions, the Minister had before her “Attachment L” to the NLC’s May 2011 submissions, being “the Rio Tinto Alcan Gove Traditional Owners Agreement and attached Schedules 1-11 (Agreement), including the proposed Lease for the Residue Disposal Area (proposed Lease)”. I would infer from this circumstance that, when the Minister gave her approval under s 27(4) of the Land Rights Act, she approved the Lease as a part of the Agreement.
135 For the reasons stated above, Dr Gondarra failed to make out any case under grounds 1 to 3 of his application, as amended on 6 March 2013. Once again, I note that, in many ways, the submissions made on Dr Gondarra’s behalf did not follow the grounds of this application. I have considered the arguments advanced in written submissions and at the hearing, assuming (as did the respondents) that they fall within these grounds. To the extent that the grounds might appear to direct different inquiries, which were not supported in submissions, I have taken them to be abandoned. Even if they were not abandoned, it is clear, for the reasons already stated, that they were unsustainable.
No denial of natural justice
136 For the reasons I am about to state, I would also reject the proposition that Dr Gondarra and his group were denied any natural justice or procedural fairness that was owed to them. It may be recalled that, at the hearing, counsel for Dr Gondarra identified three ways in which he claimed natural justice was denied: (1) a failure to disclose the documents critical to the Minister’s decisions, namely, the Agreement and the Lease; (2) a failure to give Dr Gondarra adequate notice of adverse material (being the NLC’s May 2011 submissions) before she made the challenged decisions; and (3) a failure to consider Dr Gondarra’s submission that the NLC could not have consulted with him without the NLC providing the Lease and the Agreement to him.
137 As a preliminary matter, I accept that, as the Minister stated, it is not necessary for the Court to determine the disputed allegations about the Dhurili Nation to determine this ground: see Kioa v West (1985) 159 CLR 550 (“Kioa v West”) at 627 (Brennan J) and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (“SZBEL”) at 160 [25].
138 Also as a preliminary matter, I reject the proposition that the Minister’s natural justice obligations were awakened when she received a complaint about consultation from Dr Gondarra. This was the effect of one aspect of the submission made by Mr Wood, for Dr Gondarra, at the hearing. Mr Wood submitted that “it would be very strange … if persons in the position of the applicant were not owed natural justice by the Minister”; and “the duty of natural justice might ordinarily be minimal in the absence of two features … that the applicant made a specific and credible allegation that the NLC had not complied with its duties”; and “[t]he Minister, in response to that specific and credible allegation promised to afford natural justice”. I discuss the second aspect of the submission below.
139 The statutory scheme provides no relevant support for the proposition that the receipt of a complaint awakened natural justice obligations. Any obligation on the Minister to afford natural justice had to conform to the statutory scheme and has to be understood in terms of the relevant decision within the statutory scheme, including the relationship (as outlined earlier) between the decision-making function of the NLC and that of the Minister. This relationship militates against any obligation to afford procedural fairness with respect to matters which a person or group of persons has already had an opportunity to agitate in the Land Council consultation process. Under the statutory scheme, the Land Council (here, the NLC) was entrusted with the tasks of determining the identity of the traditional Aboriginal owners and of any Aboriginal community or group interested in the land and/or that might be affected by the proposed action (s 23(3)) as well as the general merits of the proposed contract.
140 O’Shea at 389 supports the proposition that where there are issues to be addressed by a Land Council earlier in the decision-making process, it is not for the Minister to address them again at a later stage to ensure procedural fairness. It was for the Land Council to afford procedural fairness on the issues that were for it to determine. The Minister’s receipt of a complaint from Dr Gondarra could not alter this statutory distribution of responsibility. Mr Wood sought to distinguish O’Shea on the basis that there was no identity between the statutory duty of the Land Council and the duty of the Minister. This much may be conceded. This was not, however, to the point. It is true enough that the question for the Minister was a different one: whether or not the Minister was satisfied that the NLC, in taking the action that resulted in the proposed Agreement, had complied with any duty imposed on it by s 23(3). In this circumstance, however, O’Shea at 389 confirms that it was for the Land Council, not the Minister, to afford procedural fairness with respect to the issues that fell to the Land Council to determine. In so far as the Minister had an obligation to afford procedural fairness, that obligation was confined to the Minister’s consideration as to whether or not she was satisfied that the Land Council had complied with any duty imposed by s 23(3) and any matters that the Minister proposed to take into account that were not agitated in the Land Council consultation process.
141 In any event, to the extent that there was any procedural fairness obligation, the Minister complied with it by making available to Dr Gondarra any information adverse to his interests before her at the time she made the challenged decisions. The Minister accomplished this by ensuring that the NLC’s May 2011 submissions (containing the substance of what might be regarded as the adverse material) and NLC correspondence was disclosed to Dr Gondarra.
142 There was no failure to provide adequate notice or adequate opportunity to respond. The NLC’s consultation process commenced some years earlier – in late 2008, according to the NLC’s May 2011 submissions. Dr Gondarra had asserted that the process was defective at least since his solicitor’s letter of 11 October 2010, when he communicated that view to the NLC. He communicated the same view to the Minister by a letter dated 22 October 2010 (mentioned above). Dr Gondarra had therefore had ample time in which to set out his views on the matters that concerned him, which remained much the same throughout the relevant period. Given the length of time for which the NLC consultation process had been on foot, the length of time in which Dr Gondarra’s representatives had considered that the process was defective and communicated that view to the NLC and the Minister, and the comparatively narrow focus of the Minister's inquiry (as set out above), it cannot be said that the period of notice and the opportunity to respond were other than reasonable. It should also be borne in mind that the correspondence with Dr Gondarra’s representatives indicated that, after the receipt of the NLC’s May 2011 submissions, there was a stated need for a comparatively speedy response. At the hearing, Dr Gondarra did not dispute the reality of this need. The correspondence stated that a short period was all that was available, given that the NLC’s request for approval was received by the Minister on 9 May 2011 and the Lease was due to expire within weeks.
143 As already stated, the NLC was not obliged to provide the Agreement and the Lease to Dr Gondarra and his group to ensure an adequate consultation with them. Furthermore, the Agreement and the Lease did not constitute adverse material. This is because s 23(3) does not impose an obligation, akin to the obligation in s 19(5), that a Land Council be satisfied that the terms and conditions of a proposed contract are reasonable. Given the express terms of s 23(3), there is no warrant for implying such an obligation. It follows that s 27(4) did not make it a condition of the exercise of the Minister’s power under s 27(3) that the Minister be satisfied that the terms and conditions of the Agreement were reasonable, or that the Minister be satisfied that the Land Council was so satisfied. There was therefore no obligation, as a matter of procedural fairness, to disclose these documents to Dr Gondarra.
144 In any event, the fact that Dr Gondarra did not have a copy of the Agreement and the Lease did not prevent him making representations about the nature and content of the NLC’s consultations with him and his group, with a view to persuading the Minister that the NLC had not complied with its duty to them under s 23(3) of the Land Rights Act. The fact that Dr Gondarra did not take advantage of the opportunity that the Minister offered does not diminish this opportunity.
145 As already noted, relying on Shields v Overland (2009) 26 VR 303 (“Shields v Overland”), Dr Gondarra’s submitted that the Minister was obliged to disclose all relevant information, which included the Agreement and the Lease. I reject this proposition.
146 In Shields v Overland at 332 [109], Kyrou J expressed the view that “[i]n appropriate cases, and especially where the decision-maker has exclusive knowledge of specific information, the hearing rule requires the decision-maker to provide to a person affected not only material that is adverse to that person, but all material that has substantive relevance to the matter in issue” (emphasis added). This proposition was stated in a very different context from the present case.
147 In Shields v Overland a former member of the police force sought judicial review of a decision of the Police Appeals Board confirming his dismissal. Kyrou J quashed the dismissal order on the basis that the Board had not conducted a merits review of the kind required by the Police Regulation Act 1958 (Vic) and thus had not permitted Mr Shields to rely on a report containing exculpatory opinions. Plainly enough, the proposition on which Dr Gondarra relied was obiter dictum. Further, the proposition was qualified; and, in any case, it was not the subject of argument.
148 Reflecting the very different context of Shields v Overland, moreover, the authorities to which Kyrou J referred at [109] concerned the denial of procedural fairness by a re-sentencing judge. R v Wise (2000) 2 VR 287 (“R v Wise”), referred to by Kyrou J, concerned a resentencing decision after breach of a community-based order. In that case, in a judgment with which Brooking and Chernov JJA agreed, Ormiston JA held that there was a breach of procedural fairness where the re-sentencing judge apparently acted on material not available to counsel for the offender: see R v Wise at 294 [20]. This, as Ormiston JA there said, was in breach of the “elementary rule … that a judge shall not determine any question without affording counsel for each party an opportunity to see and comment upon any material relevant to the issue before the court which is available to the judge and known not to be available to counsel”. R v Ulla (2004) 148 A Crim R 356 at 362-3 [20]-[22] involved an application of R v Wise. None of the authorities to which Kyrou J referred in Shields v Overland would justify the application of the proposed principle in the context of this case.
149 Shields v Overland provides an insufficient justification to depart from the generally accepted principle that requires that, where there is a duty to afford procedural fairness, this duty requires an administrative decision-maker to provide a person affected with the material adverse to that person: see, for instance, Alphaone at 590-591; SZBEL at 162 [32]; Kioa v West at 629.
150 Insofar as Dr Gondarra relied on representations in the Minister’s letters of 23 November 2010 and 22 December 2010 as giving rise to a legitimate expectation that entitled Dr Gondarra and his group to procedural fairness of the kind represented, it suffices to say that the Minister complied with the representations made in those letters that she would consult Dr Gondarra and afford him an opportunity to respond to the NLC’s submissions. At no stage did the Minister indicate that she would provide him with a copy of the Agreement and the Lease. I have already rejected Dr Gondarra’s argument that the time allowed for such a response was unreasonable or insufficient.
151 Referring to Dranichnikov at 394 [24], Mr Wood submitted that there was a failure to accord natural justice because the Minister did not address Dr Gondarra’s claim that he and his group were not properly consulted because they did not receive a copy of the Lease or the Agreement. This argument is unsustainable. There was also no substance in the allegation that the Minister did not consider Dr Gondarra’s submission that the NLC could not have consulted with him without the NLC providing the Lease and the Agreement to him or that the Minister did not consider the position of the Dhurili Nation in making her decision.
152 In her s 13 statement of reasons, the Minister stated that she had had regard to Dr Gondarra’s responses. The Minister specifically referred to the claim made by Dr Gondarra’s group, said to be the Dhurili Nation, that it was the traditional Aboriginal owner of the Relevant Land and the statements in Maddocks’ letter of 23 May 2011 that a copy of the Agreement and the Lease was sought. More generally, under the heading “Reasons for Decision to Consent under s 27(3)” the Minister also referred to the correspondence from the lawyers said to be acting for the Dhurili Nation (and Dr Gondarra) and stated:
Subsection 27(4)
37. Subsection 27(4) of the ALRA requires that I shall not give my approval unless I am satisfied that the NLC has, in taking action that resulted in the Agreement, complied with any duty imposed on it by subsection 23(3) of the ALRA.
38. The correspondence from representatives of the Marrangu clan and the Dhurili Nation’s legal representatives demonstrated to me that the Dhurili Nation clans dispute the NLC’s findings regarding the traditional Aboriginal ownership of the land, the ability of the traditional Aboriginal owners identified by the NLC to consent to the Lease and Agreement and that the NLC had discharged its consultation obligations.
39. However, the material provided by the NLC indicated that, notwithstanding the issues raised by the Dhurili Nation clans, the NLC had regard to the interests of, and consulted with those clans (the Gumatj, Rirratjingu and Galpu) who it had identified, based on anthropological evidence, as the traditional Aboriginal owners of the land. That material also indicated that the NLC also had regard to the interests of, and consulted with any other Aboriginals interested in the land. The material provided details of consultations undertaken by the NLC on the basis of which the NLC stated that it was satisfied that:
(a) the traditional Aboriginal owners of the land understood the nature and purpose of the proposed action and, as a group, consented to it; and
(b) any Aboriginal community or group that may be affected by the proposal was consulted and had an adequate opportunity to express its view to the NLC.
40. After considering all of this, including having regard to the material provided by and on behalf of the Dhurili Nation clans, I was satisfied, notwithstanding the issues raised by the Dhurili Nation clans, that the NLC complied with the duties imposed on it by subsection 23(3).
There was no direct challenge to the Minister’s s 13 statement of reasons.
153 Accordingly, having regard to the above mentioned matters, ground 4 of Dr Gondarra’s application, as amended on 6 March 2013, fails.
Grounds 5 and 6
154 These two grounds were addressed in written submissions but not directly at the hearing. For the following reasons, they too fail.
155 In support of ground 5 of Dr Gondarra’s application, as amended, it was submitted that the Minister's consent to the Lease, pursuant to s 19(4A) of the Land Rights Act, involved an error of law or was otherwise contrary to law by reason that “she concluded that there were no matters that she was required to consider in deciding whether to give her consent”. It would appear that the occasion for this submission is paragraph 30 of the Minister’s s 13 statement of reasons, which concerned the decision whether or not to consent under s 19(4A). In this paragraph, the Minister stated:
The ALRA does not specify any matters which I was required to consider in making this decision. Accordingly, I had regard to the overall purpose of the legislation. In particular, in making my decision I was concerned and committed to ensuring that the resulting arrangements would be of benefit to Aboriginal people.
156 As this and the subsequent paragraphs in her s 13 statement of reasons show, contrary to ground 5 and the submissions directed to it, the Minister did not conclude that “there were no matters that she was required to consider in deciding whether to give her consent”. The statement in her reasons is simply a recognition of the fact that, unlike s 27(3) and (4), s 19(4A) does not specify any matters that the Minister must consider. Consistently with well-established principle, the Minister's reasons recognised that the Minister was nonetheless required to have regard to “the overall purpose of the legislation”: see, for example, Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (“Peko-Wallsend”) at 40 (Mason J). The Minister's statement of reasons proceeded to identify a number of matters, which the Minister considered in this way.
157 In so far as this ground included a complaint that the matters considered by the Minister did not include whether the NLC had discharged its statutory obligations, for the reasons already discussed, I consider that this complaint is without foundation. It turns on the proposition that the power conferred by s 19(4A) is impliedly conditional on the Minister being satisfied that the relevant Land Council has discharged its statutory obligations. For the reasons stated above, this proposition is rejected.
158 Having regard to the above, it follows that ground 5 must fail.
159 In support of ground 6, Dr Gondarra submitted that the Minister took into account irrelevant considerations by considering whether the grant of the Lease and the entry into the Agreement would have broader economic benefits for the local people and economy, for the Northern Territory economy and for the Australian economy. For the Court to accept this submission, Dr Gondarra had to persuade the Court that the Land Rights Act prohibits the Minister from taking these matters into account: see Peko-Wallsend at 40. In this context, Dr Gondarra submitted that: (1) the Land Rights Act was silent as to whether the Minister may take into account such matters and that the Land Rights Act could have stated expressly that they were permissible considerations; and (2) the Land Councils were not directed to have regard to such matters and that the considerations to which the Minister may have regard in the exercise of the powers in ss 19(4A) and 27(3) should be similarly confined because those powers were “supervisory” in nature and conferred to ensure the Land Council has complied with its obligations. I reject this submission in both its aspects.
160 The fact that the Land Rights Act does not expressly state that broader economic benefits may be taken into account is insufficient reason to conclude that such matters must not be taken into account. By that reasoning, the fact that the Land Rights Act does not expressly state any matters that may be taken into account in the exercise of the power conferred by s 19(4A) leads to the conclusion that no matters may be taken into account. That is plainly wrong. Further, nothing in s 27(3) and (4) states that a Land Council’s compliance with s 23(3) is the only matter that the Minister may take into account.
161 For the reasons stated earlier, it is inappropriate to describe the purpose of the powers in ss 19(4A) and 27(3) as “supervisory”. For the reasons stated earlier, no such purpose can be implied into s 19(4A), which is not expressly conditioned upon satisfaction that a Land Council has complied with its obligations. If, however, a purpose of the power in s 27(3) is akin to providing some degree of assurance that the Land Council has complied with its s 23(3) duties, there is nonetheless no warrant for concluding that that is its only purpose. Nothing in s 27(3) limits the Minister’s consideration to such compliance. Rather, the fact that no criteria are expressly identified indicates that the powers were not to be limited to a matter as narrow as compliance by Land Councils with their obligations. The fact that the powers were, moreover, reposed in a Minister indicates that broad policy considerations may be taken into account: see Peko-Wallsend at 40-42; Murphyores Inc Pty Ltd v The Commonwealth (1976) 136 CLR 1 at 12-15; and Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 at 455 [50] (Gaudron, Gummow and Hayne JJ). Further, the Land Rights Act is not, as Dr Gondarra submitted, silent about broader economic considerations. Such considerations are treated as relevant in numerous provisions: see, for example, ss 5, 23(ea), 35.
162 Ground 6 is, for the reasons stated, unsustainable.
Other matters
163 Having regard to the conclusions set out above, it is unnecessary to consider whether or not, if the Minister's decisions under ss 19(4A) and 27(3) miscarried, this would invalidate the Agreement or the Lease. For the reasons stated, the Minister’s decisions did not miscarry.
164 As the issue was fully argued, I would, however, state briefly my conclusions with respect to it. Having regard to the language of the relevant provisions of the Land Rights Act, the subject matter and objects of these provisions, and the consequences of invalidity, I would conclude that, even if the Minister’s decisions miscarried, this would not invalidate the Agreement or the Lease. Both ss 19(4A) and 27(3) address the exercise, rather than the existence, of power. In this regard, one can contrast these two provisions with the language and structure of other provisions in the Act, such as ss 6 and 19(8).
165 So far as s 19(4A) is concerned, it would, as stated above, be anomalous if the Minister's failure to be (validly) satisfied that the Land Council had fulfilled its obligations under s 19(5) invalidated a lease when, pursuant to s 19(6), the failure of the Land Council in fact to fulfil those obligations does not lead to that result. This cannot have been the intended operation of s 19; and, accordingly, I would reject any submission to this effect.
166 I would also conclude that any alleged failure by the Minister to be satisfied of the Land Council’s fulfilment of the duties imposed on it by s 23(3) does not lead to invalidity of the Agreement. Section 27(3) assumes that a Land Council has power to perform its functions but, as to one aspect of the performance of those functions, directs that the Minister’s approval be forthcoming. Section 23(3) “regulates the exercise of functions already conferred ... rather than imposes essential preliminaries to the exercise of its functions”, to adopt the language of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (“Project Blue Sky”) at 391 [94]. This, as their Honours there said, “strongly indicates that it was not a purpose of the Act that a breach of [s 23(3)] was intended to invalidate any act done in breach of that section”. Furthermore, like the provision at issue in Project Blue Sky, with respect to the NLC’s duties under s 23(3) “it is almost certain that there will be room for widely differing opinions”: Project Blue Sky at 391 [95]. Accordingly, these considerations indicate that, in accordance with Project Blue Sky, a breach by the Land Council of its duties under s 23(3) would not invalidate its action. If this is so, then it would be anomalous to say that a failure by the Minister to be satisfied as required by s 27(4) would result in invalidity. This cannot have been the intended operation of s 27(3) and (4); and, accordingly, I would reject any submission to this effect.
Rio Tinto Alcan application
167 By their originating application the Rio Tinto Alcan parties sought declarations that, “even if the consent given by the [Minister] pursuant to section 19 of [the Land Rights Act] to [the Lease] was vitiated by legal error as alleged … in [the Gondarra application]”:
(a) the Lease is not void; and
(b) further or alternatively, pursuant to sections 185 and 188(1) of the Land Title Act (NT) (“Land Title Act”), the applicants are the registered proprietors of a leasehold interest in the land described in the Lease, and indefeasible title to that leasehold interest was conferred upon the applicants by reason of the registration of the Lease with the Northern Territory Land Titles Office on 30 May 2011.
The Rio Tinto Alcan parties repeated this formulation of the relief they sought in written submissions filed on 17 December 2010, with additional reference to seeking a declaration regarding the Agreement (see above at [62]).
168 Since the Minister’s consent under s 19 of the Land Rights Act was not vitiated by any error of the kind alleged in the Gondarra application, there is no occasion to consider the Rio Tinto Alcan parties’ claim for declaratory relief. There is in effect no dispute involved; and it is unnecessary and inappropriate to consider the matter further.
169 In submissions at the hearing, senior counsel for the Rio Tinto Alcan parties, Mr Archibald QC, sought to go beyond the originating application and applicants’ previously filed submissions, stating that the Rio Tinto Alcan parties “sought the first subject matter of declaration in order that there might be some explicit record of a favourable outcome from the point of view of the[ir] interests … in the 864 application, otherwise all that would occur … would be a dismissal of the applicant’s application” and “therefore, … we have contemplated and seek [a declaration] in our application, that the lease is not void”. I would reject the proposition implicit in this submission that the Rio Tinto Alcan parties sought declaratory relief in any event, including in the event that Dr Gondarra’s application was unsuccessful. What they sought in their originating application (as confirmed by their written submissions) was declaratory relief in the event that Dr Gondarra made out his case. They made no application to amend. Even more importantly, as already indicated, there is no existing dispute: compare Re Clay [1919] 1 Ch 66 at 78. The grant of declaratory relief would, moreover, have no practical value.
170 It is also relevant to note that the issue underlying at least the first limb of the application arose, and has been determined, in the Gondarra application. This was the issue whether the Lease would be invalidated if the Minister's decisions under s 19(4A) miscarried. I have held in the Gondarra proceeding that there was no miscarriage as claimed; and, even if there were, no error as claimed would have invalidated the decision. Further, it is questionable whether the issue raised by the second limb could properly arise unless and until the registration of the Lease was impugned in an appropriately formulated action: compare Lansen v Northern Territory (2004) 138 FCR 563 at 578 [36]-[38]. Unless and until Dr Gondarra claimed that the Land Rights Act overrode the indefeasibility provisions of the Land Title Act, then the question raised by the second limb of the application was not enlivened. As appears above, Dr Gondarra did not make an allegation in these terms.
disposition
171 For the reasons stated, in proceeding No VID 864 of 2011, the application as amended on 6 March 2013 should be dismissed.
172 As to costs, it should be borne in mind that the second and third respondents were joined on conditions, including that they bear their own costs and that no other party seek to recover any of its costs of the proceeding from them. The sixth, seventh and eighth respondents were also joined on this condition.
173 The fourth and fifth respondents were not joined on any such condition, but on the basis that they ought to have been joined by the applicant at the outset of the proceeding, as necessary parties. The first respondent has, of course, always been a party to the proceeding.
174 Bearing in mind these matters and the outcome of the proceeding, I am provisionally of the opinion that, in the absence of agreement, the applicant should pay the first, fourth and fifth respondents’ costs of the application in proceeding No VID 864 of 2011. I would, however, afford those parties an opportunity to make submissions on costs, should they wish to do so. If no submissions are filed by the due date, then I would make the order as provisionally indicated.
175 For the reasons stated, in proceeding No VID 97 of 2012, the application should be dismissed.
176 Bearing in mind the matters to which I have referred, I am provisionally of the opinion that, in the absence of agreement, the applicants should pay the respondents’ costs of the application in proceeding No VID 97 of 2012. I would, however, also afford the parties in that matter an opportunity to make submissions on costs, should they wish to do so. If no submissions are filed by the due date, then I would make the order as provisionally indicated.
| I certify that the preceding one hundred and seventy-six (176) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. |
Associate:
