FEDERAL COURT OF AUSTRALIA

Rirratjingu Aboriginal Corporation v Northern Land Council [2015] FCA 36

REASONS FOR JUDGMENT

INTRODUCTION

1    These proceedings involve a dispute as to how mining royalties are to be distributed amongst members of the Yolngu clans known as the Rirratjingu, Gumatj, and Galpu. The royalties are proceeds from mining operations on certain Aboriginal land in the Gove Peninsula, North East Arnhem Land, Northern Territory (the land).

2    For reasons which are set out below, at least on one aspect of the matters in issue – namely the role of the Northern Land Council (the NLC) in relation to the allocation and distribution of the July Payment (as defined below) – there was some urgency about a decision being made. Consequently, on 23 January 2015, I announced my decision on that aspect. The reasons also, of course, explain why that decision was made, as well as dealing with the other matters in issue. They reflect the announced decision on 23 January 2015.

3    In the course of the submissions, sometimes counsel referred to the Rirratjingu clan or people, and similarly to the Gumatj clan or people and to the Galpu clan or people. Mostly, reference was made to the collective groups as the Rirratjingu, the Gumatj and the Galpu. I shall adopt that form of description, save where it is necessary to use a more detailed description.

4    It is appropriate to give a broad description of the background to the proceedings.

5    On 26 May 2011, an agreement (the Gove Agreement) was entered into between Swiss Aluminium Australia Pty Ltd and Gove Aluminium Ltd (RTA), the Arnhem Land Aboriginal Land Trust (the Land Trust), the first respondent, the NLC, and representatives of the Rirratjingu, Gumatj, and Galpu, who together are considered by the NLC to comprise the traditional Aboriginal owners of the land. The NLC is a Land Council established under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the ALRA) and is the relevant Land Council for the Gove Peninsula in North East Arnhem Land.

6    The Gove Agreement concerns, amongst other matters, the grants of rights in relation to Sch 1 of the ALRA. It was made pursuant to s 19 of the ALRA. It allows for bauxite mining operations on Aboriginal land in the Northern Territory known as the Gove Peninsula in North East Arnhem Land (the Gove operations). Under the Gove Agreement, amongst other things, the NLC is tasked with receiving the mining royalties and making payments of an amount equal to the amount received to, or for the benefit of, traditional Aboriginal owners pursuant to its statutory duties under the ALRA.

7    The first applicant, the Rirratjingu Aboriginal Corporation (the RAC), is a corporation incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (the CATSI Act). It has had, and continues to have, members who are Rirratjingu over the age of 18 years and have received, from time to time, moneys to be paid for the benefit of the Rirratjingu traditional Aboriginal owners under the Gove Agreement. The second to seventeenth applicants are Aboriginal people and are senior members of the Rirratjingu.

8    There is some issue between those constituting the Rirratjingu as to the appropriate outcome of this proceeding. There remain a significant number of the second to seventeenth applicants who support the RAC’s claim and there are a number who do not, or do not fully support it. The statement of claim as amended includes Gerard Marika as a fifth respondent. He is a member of the Rirratjingu clan, and one of those who do not fully support the RAC claim. The amended statement of claim provides a means for others in that group to join in his stance. For present purposes, counsel for Gerard Marika (and others in his group) have adopted a watching position. The two issues immediately to be resolved (as set out in [49] below) did not require any intervention. There was no issue that the RAC (perhaps with the supporting members of the Rirratjingu) has the status properly to maintain its claims for the purpose of having those two issues resolved.

9    The second respondent, the Gumatj Aboriginal Corporation (the GAC), is also a corporation incorporated under the CATSI Act. It represents the Gumatj in this proceeding. It has received, from time to time, moneys to be paid for the benefit of traditional Aboriginal owners under the Gove Agreement.

10    The third respondent Djalu Gurruwiwi is an Aboriginal person and senior member of the Galpu, and represents the Galpu in this proceeding. The Galpu are entitled to receive, from time to time, moneys to be paid for the benefit of traditional Aboriginal owners under the Gove Agreement.

11    The fourth respondent is an Aboriginal senior member of the Gumatj and is said to represent the members of that clan. There is no present issue about that. He did not take a position on the current issues which is different from that of the GAC.

FACTUAL HISTORY

12    It is convenient to briefly refer to the factual history leading up to the execution of the Gove Agreement in May 2011.

13    In 1969, Special Mineral Lease 11 and Special Purposes Leases 213, 214, 217, 249, 250, 251, 253 and 277 (the Gove Leases) were granted pursuant to the Mining (Gove Peninsula Nabalco Agreement) Act 1968 (NT) (the 1968 Act) and the Agreement scheduled to the 1968 Act, with a right of renewal. The Gove Leases authorised the mining of bauxite at the Gove alumina refinery. They were for a period of 42 years, with a right of renewal for a further period of 42 years. A large area of land called “Arnhem Land (Mainland)”, including the land covered by the Gove Leases 403 and Special Purposes Lease 403 (SPL 403), later became the subject of deeds of grant of an estate in fee simple. They were held in escrow by the NLC pursuant to ss 10(2) and 12(1)(b) of the ALRA because of the existing Gove Leases and SPL 403 in respect of the areas the subject of those leases.

14    In 1976, SPL 403 was granted pursuant to the 1968 Act and the Agreement scheduled to that Act, for the purpose of disposal of waste residue from the Gove operations. SPL 403 did not contain a right of renewal and expired on 29 May 2011. Following the expiry of SPL 403, the NLC delivered a deed of grant of an estate in fee simple in the land previously covered by SPL 403 to the Land Trust. The Land Trust is an Aboriginal Land Trust established under s 4 of the ALRA.

15    As SPL 403 neared its expiry date, the Gove Agreement and the Residue Disposal Area Lease dated 26 May 2011 (the RDA Lease), were made. The RDA Lease was made between RTA, the NLC, and the Land Trust. The RDA Lease covers an area which includes the land that had previously been covered by SPL 403. In practical terms the RDA Lease replaced SPL 403. As stated previously, the Gove Agreement was made between RTA, the NLC, the Land Trust, and representatives of the Rirratjingu, Gumatj, and Galpu.

16    These proceedings involve, inter alia, allegations that the NLC has acted unlawfully contrary to its obligations under the ALRA and the Gove Agreement in the way it has disbursed the mining royalties or quarterly payments payable to the NLC by RTA pursuant to the Gove Agreement in respect of the areas of the Gove Leases and SPL 403, and now the RDA Lease, to members of the Yolngu clans (the Payments) and proposes to do so in the future.

THE GOVE AGREEMENT

17    Clause 1.1 defines “Traditional Aboriginal Owners” as having the meaning ascribed to it in s 3 of the ALRA which provides:

“traditional Aboriginal owners”, in relation to land, means a local descent group of Aboriginals who:

(a)    have common spiritual affiliations to a site on the land, being affiliations that place the group under a primary spiritual responsibility for that site and for the land; and

(b)    are entitled by Aboriginal tradition to forage as of right over that land.

18    Relevantly, cl 6(1)(a) of the Gove Agreement provides for the Payments by RTA to the NLC to, or for the benefit of, traditional Aboriginal owners of the area subject to the Gove Leases and the RDA Lease. Clause 6(1)(b) of the Gove Agreement provides an exception, where certain payments might be made directly to a “Traditional Owner Recipient Entity” as specified by the NLC. The Gove Agreement provides for quarterly payments. These payments are made in accordance with the process outlined in cl 6(1)(a) of the Gove Agreement.

19    Clause 6.2 of the Gove Agreement directly invokes the statutory functions of the NLC under the ALRA. It imposes materially the same obligations, and uses substantially identical words, to those in s 35(4) of the ALRA. Section 35(4) of the ALRA requires the NLC, within six months after payment is received, to “pay an amount equal to or for the benefit of the traditional Aboriginal owners of the land.”

20    It is common ground that the Rirratjingu, Gumatj, and Galpu are the traditional Aboriginal owners of the land. It is significant that the Gove Agreement did not specify precisely how the Payments were to be distributed. Since the Gove Agreement was entered into, the NLC has been paying to or for the benefit of the Rirratjingu an amount equal to 26.87% of the Payments, which are paid quarterly. The proportion was determined with reference to the area of land covered by the Gove operations which the NLC considers to be land of which the Rirratjingu are the traditional Aboriginal owners.

21    In determining the apportionment of the payments, the NLC relied on a briefing paper dated December 2011 (the December 2011 Briefing Paper). It was provided to the RAC. The 2011 Briefing Paper contained a map which expressed the opinion of an anthropologist, Robert Graham, who was also the NLC Anthropology Branch Manager, as to the location of the lands of the Rirratjingu, Gumatj, and Galpu, as covered by the Gove Agreement. The map disclosed a geographical breakdown of 26.87% to the Rirratjingu, 72.61% to the Gumatj, and 0.49% to the Galpu. The calculations omit, in error, an area comprising 0.03% of the subject land.

22    At the time, the NLC was aware that there was a possible dispute as between the Rirratjingu and Gumatj about traditional Aboriginal ownership of an area of about 5.89% of the subject land. Apart from the potentially disputed land (which comprises 5.89% of the total area covered by the Gove Agreement), the parties accepted that that is the correct geographical breakdown. The money reflecting 5.89% and the 0.03% of the Payments received by the NLC, has been retained by the NLC. That dispute is not the focus of these proceedings and it is not necessary in this judgment to discuss that any further.

23    As noted, in broad terms, the Payments have been apportioned in accordance with the geographical breakdown. In the affidavit of Jonathan Kneebone, senior legal advisor at the NLC, affirmed 25 September 2014, it was deposed that the payments to, or for the benefit of, the Rirratjingu clan had been made directly to members of the Rirratjingu in addition to the RAC as it was a corporation that conducted activities that promote the welfare of the traditional Aboriginal owners concerned. This included direct payments to the second, eighth, ninth, twelfth, sixteenth, and seventeenth applicants.

24    On 22 August 2014, the applicants sought declaratory orders and other relief from the Court in respect of their entitlements under the Gove Agreement. The applicants sought declarations that they were entitled to 49.755% of the Payments payable under the Gove Agreement and the RDA Lease to traditional Aboriginal owners, and that the NLC in fact held 49.755% of the Payments it had received from time to time on trust for the applicants. Further, a permanent injunction was sought to compel the NLC to pay 49.755% of the Payments to the RAC or alternatively to restrain the NLC from paying more than 49.755% of the payments to the Gumatj (which previously had been receiving 72.61% of those payments). The applicants also sought an account with interest of payments received by the NLC since the Gove Agreement was entered into. The applicants also sought an interlocutory injunction restraining the NLC from paying more than 50.245% of the Payments to other entities other than the RAC (or the Rirratjingu).

25    On 31 July 2014, the NLC received a quarterly payment (the July Payment) from RTA under the Gove Agreement. Section 35(4) of the ALRA requires it to be paid by the NLC no later than 31 January 2015. On 25 August 2014, the NLC wrote to the applicants informing them that a payment under s 35(4) of the ALRA would not be made from the July Payment without the NLC first giving the applicants five business days’ written notice of its intention to do so. Given the relatively tight timeframe and the undertaking by the NLC to not disburse the July Payment without five business days’ written notice, it was not necessary to hear the claim for interlocutory relief and the matter was listed for hearing in December 2014.

THE PRESENT CLAIM

26    On 10 October 2014, programming orders were made for the exchange of pleadings. At that stage, and to the present, there has yet to be a decision by the NLC about how to disburse the July Payment that the NLC received on 31 July 2014.

27    The scope of the proceeding expanded from that which was anticipated at the directions hearing on 10 October 2014.

28    It became apparent that certain members of the Rirratjingu were not supportive fully of the orders sought by the RAC and at least some of the Rirratjingu. That remains unresolved, but led to certain members of the Rirratjingu being represented by other counsel and then, as noted above, to the joinder of Gerard Marika on behalf of, or representing, those with different views collectively as the fifth respondent.

29    The statement of claim (now the further amended statement of claim) identifies according to what it says are “the Relevant Land Owning Principles”, areas which are classified as:

    undisputed Rirratjingu land;

    undisputed Gumatj land;

    undisputed Galpu land; and

    disputed Rirratjingu land (which RAC and the Rirratjingu claim)

and which comprise the areas of the renewed Gove Leases and of the RDA Lease.

30    The first current issue identified then is whether the July Payment received by the NLC from RTA (which must be disbursed by the NLC by 31 January 2015), and generally the Payments, are held in trust for the traditional Aboriginal owners of the area of the Gove Leases and the RDA Lease and if so upon what terms, so that the NLC does not have the role of deciding how those payments should be allocated between the three clans. That, it is said, is a function and responsibility of the Court if it is not agreed.

31    As a second step in that process, the RAC and the Rirratjingu who share its views say the proper proportions are:

    as to 49.755% to the Rirratjingu;

    as to 49.755% to the Gumatj; and

    as to 0.49% to the Galpu.

The RAC seeks an order that the payment of 31 July 2014 should be paid by the NLC in those proportions.

32    It also seeks an account from the NLC for the payments it has made since the Gove Agreement and the RDA Lease to the three groups (in the proportions referred to at [21] above).

33    The proposal that the Court should, and could in the period to 31 January 2015, decide as a matter of fact the proper proportions in which the NLC should apply the Payments from RTA had not been clearly expressed at the interlocutory hearing or until the statement of claim was filed. It is fair to acknowledge that, within a short time of that document being filed, it was accepted by the RAC and the other parties that such a complex factual issue – even if it were the Court’s responsibility to address it – could not properly be prepared for a hearing, and then heard and determined by 31 January 2015.

34    On the basis of the simple trust, as asserted, the applicants also seek a declaratory order as to the Rirratjingu entitlement being 49.755% of the quarterly payments made and to be made by RTA to the NLC under the Gove Agreement.

35    The alternative basis for the applicants’ claim for relief is under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). If, contrary to its primary submissions, the determination of the respective entitlements of the Rirratjingu, the Gumatj and the Galpu to the Payments under s 35(4) of the ALRA is a responsibility of the NLC, then the applicants allege certain conduct of, or omissions by, the NLC in relation to the RAC and the Rirratjingu leading up to the Gove Agreement.

36    They also allege certain further conduct, largely but not entirely based upon a letter from the NLC of 22 December 2011 and the enclosed 2011 Briefing Paper. Those allegations give rise to a further area of factual inquiry. Again, that is an inquiry which the parties accept could not properly have been prepared for trial, heard and determined before 31 January 2015.

37    The claim under the ADJR Act is that, on the alternative case, the decision of the NLC under s 35(4) of the ALRA is one to which the ADJR Act applies, and that the decisions required have not been made or have not been properly made. The detailed basis of that claim is set out below.

38    The issues were extended by the defence and cross-claim of Djalu Gurruwiwi for the Galpu. That is because the Galpu then asserted that the apportionment of the Payments, as previously decided by the NLC, was wrong in relation to their 0.49% share. By the cross-claim of the Galpu (as amended), they too attacked the validity of the decisions as to apportionment made by the NLC in relation to their 0.49% share under the ADJR Act, and they claimed declaratory and consequential orders. Their cross-claim includes an asserted entitlement to a greater share of the quarterly payments, and to a one-third share of the “Upfront Payments” made to the Rirratjingu and Gumatj on about 10 June 2011. The Upfront Payment is provided for in cl 52 of the Gove Agreement, and is said to have been paid directly to the RAC and the GAC by a direction of the NLC under cl 6.1(b) of the Gove Agreement.

39    The cross-claim of the Galpu does not directly make a claim (as the applicants’ claim does) that the NLC has no proper role in deciding how the Payments are to be proportioned between the three groups because of the simple trust upon which the NLC is said to receive those payments from RTA by the applicants. The details of the claim as set out in the cross-claim and the submissions indicate the Galpu support that claim.

40    The factual basis for the Galpu claim would also give rise to a significant and complex evidentiary inquiry.

41    It is appropriate to record that the defences of the NLC to the applicants’ claim and to the Galpu cross-claim deny the factual allegations asserted against the NLC. There has been no adjudication on them.

42    On 28 October 2014, the Court made orders to hear issues arising from the applicants’ judicial review claim and trust claim, and the third respondent’s cross-claim, to the extent to which they do not require consideration and determination by the Court of the appropriate proportions in which the Payments received by the NLC should be distributed, before other issues in the proceeding. The trial was listed for hearing for three days in December 2014.

43    At that hearing, the preliminary issue in relation to representative orders also was addressed.

44    As noted, there is controversy about the representation of the Rirratjingu. On 17 October 2014, Gerard Marika made an application pursuant to r 9.03 of the Federal Court Rules 2011 (Cth) (the Rules) to be joined as the fifth respondent to these proceedings. Mr Marika also sought orders under r 9.21 of the Rules to be appointed to represent certain Rirratjingu people who are members of the GAC. On 28 October 2014, the applicants made an interlocutory application seeking representative orders pursuant to r 9.21 of the Rules that the GAC or alternatively the second to seventeenth applicants be appointed to represent the Rirratjingu; and that Galarrwuy Yunupingu, Djawa Yunupingu, and Balupalu Yunupingu, be appointed to represent the Gumatj, and also that the Djalu Gurruwiwi be appointed to represent the Galpu.

45    At the hearing, by consent, I ordered for Galarrywuy Yunupingu to be joined as a respondent to these proceedings as the representative of the Gumatj, and for Djalu Gurruwiwi to be the representative of the Galpu. In relation to the representation of the Rirratjingu, there was no dispute that Gerard Marika be joined as the fifth respondent in these proceedings. By consent, I ordered that the RAC and the second to seventeenth applicants be appointed to represent the Rirratjingu, subject to the qualification that Gerard Marika will represent certain members of the Rirratjingu. Such people represented by Gerard Marika are named in Sch 4 of the Further Amended Statement of Claim.

46    Also as noted, despite the issues as to representation, the hearing (on limited issues) proceeded without controversy with a legal team representing each of the Rirratjingu, the Gumatj and the Galpu, and of course the NLC.

47    At the commencement of the hearing, the applicants sought leave to amend the characterisation of their trust case. The applicants sought leave to assert that the nature of the trust referred to was either a fixed trust for, or a “statutory entitlement of”, the Rirratjingu, Gumatj, and Galpu, “enforceable by a court of equity” where the beneficial interest in “or share of” the Payments was held by the NLC for each clan in proportions which “are determined according to law”. Leave was granted to further amend the amended statement of claim in those terms.

48    Although a substantial amount of evidence had been filed, with very extensive affidavits being relied upon by each party, and a significant number of witnesses nominated to give oral evidence, the matter did not proceed in a way which required contested evidence. That is because the orders made on 28 October 2014 were further refined.

49    The following two issues were addressed:

    whether the “trust claim” of the applicants succeeded; and

    whether the ADJR Act claim of the applicants, and of the Galpu, could arguably succeed or should be summarily dismissed.

50    The identification of those two issues was ultimately agreed by all parties. Final resolution of issue (1), the “trust claim”, if favourable to the applicants could be determined in principle on limited documentary evidence and on consideration of the relevant statutes. If that issue were answered favourably to the applicants, apart from some orders which would protect the NLC by ensuring its obligation to disburse the July Payment was met, the matter would have to be tried on the facts and on other issues. If that issue were answered adversely to the applicants, so the NLC had the role of determining the appropriate proportions in which the Payments were to be applied, and if the ADJR Act claim were not summarily dismissed under s 31A of the Federal Court of Australia Act 1976 (Cth) (the FCA Act), then the ADJR claim would also have to proceed to hearing. Again, some orders protecting the NLC from failing to comply with its statutory disbursement obligation would have had to be fashioned. If the “trust claim” were answered adversely to the applicants, and the ADJR Act claim were summarily dismissed, then the proceeding would be at an end.

51    In that event, the NLC could fulfil its statutory obligation within the specified time. Whether anything might arise out of the way in which it does would then be a matter of speculation, at least in the immediate term.

52    It is not necessary to recite the detailed evidence. As is apparent, that relied upon in relation to the two issues addressed was, in effect, uncontentious and there was no further evidence which might have affected the outcome of either issue. In the case of the ADJR Act claim, that meant that the NLC and the Gumatj seeking the striking out of that claim put their contentions on a limited basis.

STATUTORY FRAMEWORK

53    The long title of the ALRA provides “for the granting of Traditional Aboriginal Land in the Northern Territory for the benefit of Aboriginals” by grant to Aboriginal Land Trusts of estates in fee simple in certain Crown land in the Northern Territory. There may be a grant of title for two classes of Crown land. The first is made up of the lands described in Sch 1, which may be modified by the regulations as provided for in s 77C. The second class consists of other areas of Crown land where the Aboriginal Land Commissioner has made a recommendation for grant in a report on a traditional land claim, pursuant to ss 11, 12, and 50.

54    By s 3(1) of the ALRA, “Aboriginal land” is land held by a Land Trust as an estate in fee simple or land the subject of a deed of grant held in escrow by a Land Council. Section 5(1)(b) sets out the functions of a Land Trust as a body corporate established under the ALRA, which include exercising its powers as an owner of land for the benefit of the Aboriginal people entitled by Aboriginal tradition to the use or occupation of the land concerned, whether or not the traditional entitlement is qualified by the creating instrument as to place, time, circumstance, purpose or permission: see ss 4(1) and 11(1) of the ALRA.

55    The term “traditional Aboriginal owners” means a local descent group of Aboriginal people who have common spiritual affiliations to a site on the land that place the group under a primary spiritual responsibility for that site and who are entitled by Aboriginal tradition to forage as of right over that land: s 3(1) of the ALRA. Section 71(1) then confers statutory rights on a wider class of Aboriginal people to the extent that traditional use or occupation of Aboriginal land permits it. This statutory entitlement to use the land is “managed” with the functions of a Land Trust as owner. It is also noteworthy that s 5(2) states that the Land Trust shall not exercise its functions in relation to land held by it except in accordance with a direction given by the Land Council for the area in which the land is situated, where such a direction is given. Section 6 provides that a Land Trust is not empowered to accept or give a discharge for moneys due and owing to it, but such moneys may be paid to the relevant Land Council. Besides the exceptions expressly mentioned in ss 19, 19A and 20, a Land Trust may not deal with or dispose of any interest in land vested in it under the ALRA. Consequently, notwithstanding the status of a Land Trust and the significance of a grant of land under the ALRA, the relevant Land Council is given important ongoing functions.

56    A Land Council, including of course the NLC, is also a body corporate established under ss 21 and 22 of the ALRA. Its members come from Aboriginal people living in the area, or whose names are set out in the register maintained under s 24 and chosen by Aboriginal people living in the area: see s 29. The Land Council may not give a direction for the grant of an interest under s 19 (a lease or licence) or s 19A (township lease) unless it is satisfied that:

(1)    the traditional Aboriginal owners (if any) of the land understand the nature and purpose of the proposed lease and, as a group, consent to the grant;

(2)    any Aboriginal community or group affected by the proposed lease has been consulted and has had an adequate opportunity to express its view to the Land Council; and

(3)    the terms and conditions of the proposed lease are reasonable: see ss 19(5) and 19A(2).

57    The functions of a Land Council include consulting with the traditional Aboriginal owners of, and other Aboriginals interested in, Aboriginal land. Where a Land Council holds in escrow a deed of grant, one of its functions is to negotiate the acquisition of interests in the land so that they may be vested in a Land Trust. In circumstances where the land is held by a Land Trust, the Land Council has a function to negotiate with persons desiring to obtain an interest in the land: see s 23(1)(c)-(e). Subsection 23(3) expands on the consultation function and provides that:

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.

58    Section 27 confers power on a Land Council to do all things necessary or convenient to be done for or in connection with the performance of its functions, and may obtain the advice and assistance of persons who are expert in any matter with which the Land Council is concerned. A Land Council shall not, without the approval of the Minister responsible for the ALRA, enter into or permit a Land Trust in its area to enter into a contract involving more than $1 million. Subsections 27(3)-(4) provide that the Minister shall not give an approval unless satisfied that the Land Council has complied with any duty imposed on it by s 23(3). In this matter, Ministerial approval was obtained for the execution of the Gove Agreement under s 27. That process was sustained, despite challenge: see Kenny J in Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs (2014) 220 FCR 202 (Gondarra).

59    The more immediately relevant provisions include s 35. It deals with the application of money of a Land Council.

60    Sections 63 and 64 respectively deal with credits to, and debits from, the Aboriginals Benefit Account (the AB Account) preserved by s 62 as a Special Account for the purposes of the Public Governance, Performance and Accountability Act 2013 (Cth) (the PGPA Act). By s 80 of the PGPA Act, the Consolidated Revenue Fund (the CRF) is appropriated for the purposes of the Account.

61    Amounts that are credited to the AB Account and appropriated from the CRF under s 63 include:

(1)    s 63(1): amounts equal to the amounts of royalties received by the Commonwealth or the Northern Territory in respect of a mining interest in Aboriginal land;

(2)    s 63(4): payments in respect of mining operations carried on under the Atomic Energy Act 1953 (Cth) determined under subs 5 as amounts equivalent to royalties;

(3)    s 63(6): amounts equal to any money paid by any person to the Commonwealth for the purposes of the Account; and

(4)    s 63(7): amounts equal to any amounts received by the Commonwealth as interest on any loan made under s 64(4).

62    Amounts that are debited from the Account and paid by the Commonwealth under s 64 include:

(1)    s 64(1): amounts paid to Land Councils having regard to estimates of expenditure under s 34;

(2)    s 64(3): an amount equal to 30% of amounts credited to the Account under s 63(1) and (4) for mining operations on Aboriginal land;

(3)    s 64(4): amounts the Minister directs be paid or applied to or for the benefit of Aboriginals living in the Northern Territory; and

(4)    s 64(4A): amounts the Minister directs be paid in relation to s 19A township leases.

63    Payments by a Land Council which s 35 authorises or requires include:

(1)    s 35(1): administrative expenditure of the NLC;

(2)    s 35(3): money paid to a Land Council under an agreement made pursuant to certain sections in Part IV relating to consent to the grant of a mining interest in respect of Aboriginal land; and

(3)    s 35(4B): a payment received by a Land Council under a lease under s 19A relating to the grant of a head lease over a township.

64    Directly relevant to this matter is s 35(4), which provides:

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

It is common ground that the Payments by RTA to the NLC under the Gove Agreement in respect of the Gove Leases and the RDA Lease are payments covered by s 35(4), including the July Payment.

65    Section 35(8) then provides:

Each amount of money that is paid to a Land Council as mentioned in subsection (2), (3), (4) or (4B) shall be held in trust for the bodies to which or persons to whom that amount is eventually to be paid in accordance with this section until that amount is so paid.

66    Again, it is appropriate to record that, notwithstanding the status of a Land Trust and the significance of a grant of land under the ALRA, the relevant Land Council has important ongoing roles and responsibilities.

THE TRUST CLAIM

67    The applicants’ trust claim (apart from its precise quantification), does not turn on any contested evidence. It is an argument based upon a matter of statutory construction, and in the context of material which is not disputed. The evidence referred to by the parties for the determination of this issue includes the Gove Agreement and the title documents for the subject land, which simply set out the undisputed factual background. If the trust claim in principle were to be made out, as noted above, the determination of the shares of the Rirratjingu, the Gumatj and the Galpu would be a complex one. If the argument of the applicants is correct, that question is not within the role or powers of the NLC.

68    The applicants assert that in the interim period, where the NLC has received one of the quarterly payments of the Payments but has yet to disburse those funds to or for the benefit of the Rirratjingu, Gumatj, and Galpu, the Payments are held on trust for those people. The applicants contend that the Payments are held in a fixed and simple trust where the beneficial interest is held by each clan in proportions which reflect the particular interests in land over which, by the Gove Agreement, the traditional Aboriginal owners of that land had granted the Gove Leases and the RDA Lease. There is under that fixed trust no role for the NLC to form any judgment about the appropriate proportions of each group. The respective entitlements simply exist as a matter of complex fact.

69    On such an analysis, the applicants assert that the correct proportions ought to be 49.755% to the Rirratjingu, 49.755% to the Gumatj, and 0.49% to the Galpu. In reaching this figure, the applicants rely on the affidavit of Stuart Fairburn McLean, Chief Executive Officer of the RAC, affirmed on 25 August 2014. Mr McLean asserts that geographical breakdown is not the sole consideration. Rather, other relevant factors such as the significance of the land under Aboriginal tradition, including the presence of sacred or significant sites and its use by traditional Aboriginal owners in accordance with Aboriginal tradition, the nature and extent of environmental impact of the use of those areas, and the importance of those areas, all should be taken into account. Mr McLean went onto refer to various materials including the RTA 2012-2013 Mine Management Plan, the RTA 2013-2014 Mine Management Plan, and the RTA July 2011-June 2012 Annual Audit and Compliance Report – Water Discharge Licence 171-1, to highlight the magnitude of the environmental impact and adverse effects on lands and areas belonging to the Rirratjingu. It is not necessary to particularise the calculations, as the correctness or otherwise of Mr McLean’s views and analysis do not fall for immediate decision.

70    As noted, on such an analysis or a different analysis (not yet clearly identified), the Galpu also contend that the Galpu’s interest should be greater than 0.49%, after considering the importance of that land in relation to their Aboriginal tradition and culture, and the mining impacts suffered.

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

72    The NLC also made a cross-claim in relation to the trust case. It alleges that if the Court found that there was a trust in the sense contended by the Rirratjingu, that trust would exist for charitable purposes and the Attorney-General of the Northern Territory is a necessary and proper party with respect to the applicants’ claims. Further, if there was a trust in that strict and limited sense, the NLC as trustee ought to be relieved from any liability in relation to the distributions as it acted honestly and reasonably in making them.

73    In Gagudju Association v Northern Land Council [1995] FCA 304 (Gagudju), Olney J observed in the final section of his reasons at 9-10 that the effect of subs 35(8), in the context of mining royalty receipts under subs 35(2), was that:

A land council has no proprietary interest in money paid to it pursuant to s 64(3) other than as trustee. Immediately upon receipt of the money the land council is required to invest it (s 33(8)). Until the money is disbursed, the land council holds it (and any interest) as trustee for the bodies to which the amount is eventually to be paid in accordance with the section. This provision is consistent with the notion that the land council’s determination identifies the body to which the money is eventually to be paid. It says nothing as to when it is to be paid. Indeed, the use of the word “eventually” [in subsection 35(8)] suggests that there may be a delay between the determination and the payment. …

In my view, no entitlement to the money is created before a determination is made. But once a determination is made the land council becomes obliged to pay the money in accordance with the determination.

74    Gagudju involved a claim similar to the applicants’ claim in this matter. It is not directly comparable because the relevant payment to the NLC was made under s 35(2). The context is the NLC’s challenge in the Federal Court of Australia to the “Ranger” agreement for the development of the Ranger uranium project. In an earlier judgment: Gagudju Association v Northern Land Council [1995] FCA 305, Olney J had held that the Gagudju Association could not lawfully prevent the NLC from continuing to conduct that challenge, even though at the time it was the body, and probably the only body, representative of the traditional Aboriginal owners and was eligible to receive the royalty equivalent payments received by the NLC under s 35(2) through the relevant AB Account. The second decision concerned the Gagudju’s claim that, upon receipt of the royalty equivalent payments, the NLC could not refuse to pay them. The NLC had acknowledged its obligations under s 35(8) but had indicated it would not make any payment until its next general meeting following a review of the Gadudju Association itself as the Gagudju Association was not co-operating in the conduct of the challenge to the “Ranger” agreement. At the commencement of the action by the Gagudju Association, the NLC did not hold any royalty equivalent payments but it had, before the judgment, received a significant payment. The six month period referred to in s 35(4) had not expired, and there was nothing to suggest that the review of the Gagudju Association and the next general meeting would not occur within that six month period from receipt of that significant payment. Consequently, Gagudju Association’s claim that it was “entitled” to payment was dismissed on the basis there had been no decision by the NLC about payment and the six month period had not expired.

75    In my view, the circumstances of Gagudju are relevantly analogous to the present case. There has yet to be a determination by the NLC in relation to the July Payment received on 31 July 2014. I respectfully think Olney J’s reasoning is correct and ought to be followed in this case. It is appropriate to explain that in a little more detail.

76    The applicants contend that there is a “fixed trust” for the Rirratjingu, Gumatj and Galpu as they hold the “beneficial interest” in the Payments in proportions that reflect “the particular interests” a group has in the land covered by the Gove Leases and the RDA Lease. They are entitled to those payments as they are the traditional Aboriginal owners.

77    It is trite law that one of the features of a “fixed trust” is that the beneficial interests of all the beneficiaries, as owners in equity, are ascertainable and fixed immediately: see Federal Commissioner of Taxation v Vegners (1989) 90 ALR 547 at 551-552 per Gummow J. However, it is evident that neither the ALRA nor the Gove Agreement require the fixing of or do fix the actual beneficial apportionment of interests among the three groups. The entitlement of the collective beneficiaries is not fixed. The complexity of the reasoning and analysis of Mr McLean referred to above, and the fact that it necessarily involves some elements of subjective assessment tend to illustrate that point. It is very difficult to see how, as a matter of necessary legislative prescription, by inference, the process he refers to and the qualitative assessments he says should be made are fixed by the ALRA. That must be done by inference, if the argument is correct, because it is clearly not explicit.

78    Further, the Gove Agreement only refers to “traditional Aboriginal owners”. It does not expressly identify that the Rirratjingu, Gumatj, and Galpu were the traditional Aboriginal owners and the only traditional Aboriginal owners. The Gove Agreement provides that RTA will pay all moneys which it is liable to pay under the Gove Agreement to the NLC to or for the benefit of the “traditional Aboriginal owners”, as so defined, and makes specific provision in case Aboriginal persons other that the Rirratjingu, Gumatj, and Galpu people establish to the satisfaction of the NLC that they are traditional Aboriginal owners of the subject land. The Gove Agreement further provides that the NLC has the function of identifying any further traditional Aboriginal owners, as defined and not named, and the function of receiving and distributing payments to or for the benefit of the traditional Aboriginal owners in accordance with s 35(4) and other provisions of the ALRA.

79    Moreover, the Payments are to be applied to cultural, economic, and social purposes. I recognise what the learned authors JD Heydon and MJ Leeming of Jacobs’ Law of Trusts (7ed, LexisNexis Butterworths, 2008), observed at [107]:

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

However, the purposes of the Payments are broadly expressed. They are not directed to be paid (assuming the proportions are fixed) to the RAC, or to the GAC, or to any particular person or body. They are not directed to be paid without qualification or direction as to their application. They are not directed to be paid without regard to their application, or without regard to the person or body who will be expected to fulfil or achieve that purpose.

80    Accordingly, whilst the Payments are received under s 35(4) and held under s 34(8), in my view at the time of their receipt by the NLC there is no present entitlement to the applicants (or any of them) or to others to any particular sum or for any particular use until the NLC has decided in terms of s 35(4) the amount, and the person or persons or body or bodies to whom the amount is to be paid, and in this case in what proportions as between the three groups. For example, at the time the NLC received the July Payment, neither the RAC nor any of the individual applicants, either alone or in any grouping of them, was entitled to a particular payment from the NLC. The NLC is obliged under s 35(4) to disburse that Payment within six months, but until it decides to whom and in what amounts and (if appropriate) for what purposes that Payment is to be applied, there is no enforceable legal entitlement on the part of the RAC or any of the applicants to receive any of that Payment. Of course, there may be an entitlement to oblige the NLC to make its decision so that it complies with the obligations to disburse the Payment within six months, but that does not give rise to a trust of the character proposed by the applicants.

81    The decision is that of the NLC. Section 35(8) contemplates the payment may be made to a person or a body to be decided. The “trust” it prescribes does not, at the time of receipt of each quarterly payment, entitle the RAC, the GAC, any particular body or any particular person or persons immediately to that payment or to any particular portion of that payment.

82    The NLC maintains an account styled “Royalty Trust Account” into which moneys covered by s 35 are paid. All receipts and payments are made into and out of the one account. Likewise, the objects of payment under s 35(8) are the “persons or bodies” to whom an “amount” is to be paid, not the “traditional Aboriginal owners” of the land in respect of which the “payment” has been received.

83    In my view, the proper statutory construction of subss 35(4) and 35(8) does not give rise to a fixed trust. Nor do the terms and provisions in the Gove Agreement.

84    At the hearing, it became apparent that the applicants’ primary (or alternative) contention was that the Gove Agreement, along with subss 35(4) and 35(8), created a species of statutory trust enforceable in equity.

85    A statute may adopt some attributes of a trust, such as the fixing of liability for application of funds other than for specified statutory purposes, but that does not constitute making those interested in the fund owners in equity: see Occidental Life Insurance Co of Australia Ltd v Bank of Melbourne (1992-1993) 7 ANZ Insurance Cases 61-201 at 78,316. Those with an interest in the trust fund have standing for relief to enforce the relevant statutory obligations about administration of the fund: see Fouche v Superannuation Fund Board (1952) 88 CLR 609 at 640.

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

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

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

88    The question of whether there is a statutory trust depends on the construction of the provisions of the ALRA. It is important to recognise that even if the statute created funds characterised as a “trust”, that is simply a creature of statute and accordingly, its operations are principally governed by the relevant legislative provisions.

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

90    The applicants advanced five main submissions in relation to its trust claim. In my view, for the reasons that follow, the Gove Agreement and s 35(4) do not create a statutory trust in a strict technical sense. Rather, it is a trust in a non-technical sense for statutory purposes. However it is described, in my view, the role of the NLC includes the identification of the traditional Aboriginal owners of the land and the allocation of the Payments to individuals, groups, or other persons which must be to, or for the benefit of, those traditional Aboriginal owners.

91    First, the applicants’ contend that the quarterly payments payable by RTA under the Gove Agreement and received by the NLC under s 35(4) of the ALRA were held by the NLC on trust for the traditional Aboriginal owners of the relevant land. If s 35 creates a trust, it is said that it is therefore clear that the Aboriginal owners of the land are the beneficiaries of that trust. There is no dispute that the Rirratjingu, Gumatj, and Galpu are the traditional Aboriginal owners of the relevant land. Thus, the Rirratjingu, Gumatj, and Galpu in a general or colloquial sense are the beneficiaries of that trust.

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

93    Even if it is currently common ground that the traditional Aboriginal owners of the land are members of the three Aboriginal groups, neither the ALRA nor the Gove Agreement expressly identify, or expressly require the identification of, particular Aboriginal persons or entities to receive payments. It is the object of the legislation and the Gove Agreement that all traditional Aboriginal owners, regardless of their connection to particular groups, benefit from the funds payable through mining operations.

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

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

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

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

98    On these points, in addition to the observations I have made above, it is important to contrast the provisions in the Gove Agreement in relation to the payments derived from mining operations, which refers only to “traditional Aboriginal owners” and other financial benefits. These include sub-lease and asset transfers to be made expressly in favour of the Rirratjingu and Gumatj, rather than “traditional Aboriginal owners”. In some instances, benefits are directed to one of the two groups, such as a land transfer to the Rirratjingu, and the grant of timber rights to the Gumatj. The Gove Agreement recognised the interests that are clearly held solely by a particular Aboriginal group and in the context of mining operations which covers a vast area, contemplated the possibility of claims by a person as a “traditional Aboriginal owner” in the future.

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

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

…

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

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

101    In my view, the words in ss 35(4) and 35(8) indicate that neither the RAC nor any of the individual applicants are beneficiaries in the ordinary sense, because none of them have a beneficial interest in the Payments as they are not absolutely entitled to them or any particular portion of them. They cannot as individuals call for a transfer of moneys, even though they are within the category of traditional Aboriginal owners of the land. A traditional Aboriginal owner does have a right to have the funds administered properly in accordance with the statute. That is, they are entitled to ensure that the Payments are disbursed within six months of receipt, and that they are allocated to persons or bodies “for the benefit” of the traditional Aboriginal owners.

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

103    A Notice of a Constitutional matter under s 79B of the Judiciary Act 1903 (Cth) was given on 14 November 2014. By that, the applicants advanced the submission that if s 35(4) is construed in such a way that gives the NLC the power to make those determinations, any such power may be unconstitutional. Thus, the preferable statutory construction would be for the Court to make the finding required in s 35(4) instead. That matter was not pursued in submissions, save to that its arguable character supports the construction for which they contended.

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

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

106    In my view, s 35(4) merely provides the preconditions to establish any such trust imposed by s 35(8). The preconditions require identification of the objects, the traditional Aboriginal owners, and the subject property, the payment equal to the amount received, to enliven s 35(8). Thus, until such “traditional Aboriginal owners” are identified, no individual has any entitlement to require payment. The identification is necessary because, “traditional Aboriginal owners”, is an unincorporated association of persons without separate legal personality whose membership fluctuates. Also the preconditions required in s 35(4) involve the evaluation of complex factual matters. Whether such a “trust” arises so that, when the NLC has made its decision as required by s 35(4), the person or body to whom some funds are to be paid pursuant to that decision is entitled, as the beneficiary of a trust, to enforce the decision is not a point which it is necessary finally to resolve. There has been no such decision in relation to the July Payment, and any such decision is not the foundation for the applicants’ case.

107    Sections 23 and 24 make it clear that the groups who are the relevant traditional Aboriginal owners of the land concerned are those groups determined to be so by the relevant Land Council in the course of performing its functions: see also Gondarra at [86]. It is well established that the persons comprising the group, being the traditional Aboriginal owners of any land may change over time, and that a Land Council is required to form an opinion on which persons constitute the group from time to time: see Jungarrayi v Olney (1992) 34 FCR 496 at 503. Then, apart from the time limitation, the NLC needs to decide the manner and amounts of any payout or payments (to the total of the quarterly payments) which are to be made to or for the benefit of traditional Aboriginal owners.

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

109    I say this in the first instance simply to indicate that the decisions of the NLC must of course be lawful. I do not therefore foreclose the possibility of judicial review or oversight of the decisions in appropriate circumstances. However, in my view, it is clear that the NLC is intended to be the decision maker under s 35(4).

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

THE ADJR ACT CLAIM

111    It is common ground that the application to summarily dismiss this claim should not turn on any contested evidence. This ruling will therefore draw on the factual foundation from uncontested evidence, together with the notice to admit and pleadings.

112    The issue in relation to this claim of the applicants is whether it is sustainable. The principles on which a proceeding or part of a proceeding may be summarily dismissed under s 31A of the Federal Court of Australia Act 1976 (Cth) or r 26.01 of the Rules are now well established: Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [25]-[26] per French CJ and Gummow J and, amongst a number of decisions of this Court, I note the summary, generally speaking, of a proper approach in Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 per Gilmour J.

113    It is clearly arguable that the NLC’s decisions under s 35(4) of the ALRA are decisions “of an administrative character” under an “enactment” and further by a “Commonwealth authority.” The issue is essentially whether the decisions or conduct as alleged by the applicants were made “under” the enactment in the relevant sense.

114    It is also clearly arguable that where the NLC is exercising functions under cl 6 of the Gove Agreement, it is doing so also under s 35(4) of the ALRA. The decision is “under an enactment”, even taking into account the source of the Payments. That is consistent with the Gove Agreement itself, namely that the decision-making powers of the NLC as to the way in which the monies under the Gove Agreement should be distributed are not themselves under the contractual arrangements between the parties, but by s 35(4) of the ALRA. Clause 6(1)(a) of the Gove Agreement utilises substantially the same wording as s 35(4) and so reflects that.

115    It is trite law that for the ADJR Act to apply, the “decision” must be a substantive decision which will generally entail a decision which is final or operative: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 336-337 (Bond). Further, a decision only made “under an enactment” if the decision is expressly or impliedly required or authorised by the enactment, and the decision itself confers, alters, or otherwise affects the legal rights or obligations, such that the decision derives from the enactment: see Griffith University v Tang (2005) 221 CLR 99 at [89] (Tang).

116    It is clear, or at least clearly arguable, that s 35(4) of the ALRA is the source of the legal effect of the decision, as it empowers the NLC to determine who the traditional Aboriginal owners of the land are, and to make the decisions that necessarily follow, including making payments “to or for the benefit of” those traditional Aboriginal owners. Arguably, these are decisions made “under” the ALRA and the statute forms the basis of the power which was exercised by the NLC to apportion the payments received prior to paying it to the relevant Aboriginal groups which it had identified as the traditional Aboriginal owners. This is especially so when the Gove Agreement is silent about the way in which the identification and entitlement of the traditional Aboriginal owners are to be ascertained.

117    Pursuant to r 31.05 of the Rules, the applicants bear the onus of establishing the competency of the application in response to the NLC’s notice of objection filed on 25 August 2014. If it is found that the NLC does have a role in determining the allocation of the Payments to the three Aboriginal groups (as I have concluded), the applicants seek review under the ADJR Act of the NLC’s decision or failure to make a decision in relation to the allocation of the Payment.

118    It is also not in dispute that the applicants are persons whose interests may be sufficiently adversely affected such as to be “aggrieved” for the purposes of standing pursuant to s 3(4) of the ADJR Act if there is in fact a relevant decision, or relevant conduct capable of review, under that Act. That is really the focus of the submissions.

119    The applicants’ judicial review case is two-fold.

120    First, the applicants contend that s 35(4) of the ALRA required the NLC to make a decision about “the respective entitlements” of the Rirratjingu, Gumatj, and Galpu to the Payments received on 9 June 2011 within six months, that is, by 9 December 2011. It is contended that the decision was not made by the NLC, or that the NLC unreasonably delayed in making that decision. This purports to be an application under s 7 of the ADJR Act to review a failure to make a decision, and is said to affect the ability of the NLC to make a decision about the application of the July Payment.

121    Second, the applicants contend that the NLC has engaged in conduct for the purpose of making a decision as to “the respective entitlements” of the Rirratjingu, Gumatj, and Galpu to the Payments, including the July Payment received on 31 July 2014 which disqualifies it from making a decision under s 35(4) about the July Payment. It is contended that the NLC’s conduct for the purpose of making that decision involves the earlier actions and conduct in the negotiation of the Gove Agreement, and the payment of amounts in relation to the past Payments since then, which leads to that conclusion. This purports to be an application under s 6 of the ADJR Act to review a decision.

122    For this contention, the applicants accept that the NLC does have a role in determining the amount of the proportionate shares of the Payments. They refer to certain civil proceedings instituted by the Rirratjingu against the NLC in the Supreme Court of the Northern Territory for damages, being equivalent to the shortfall between the moneys received and the amount representing what they claim to be the Rirratjingu’s proper and true share. By that claim, they say, the NLC has a direct financial interest in determining the Rirratjingu’s entitlement to a share of future payments and as a result, cannot be seen to discharge its duty under s 35(4) of the ALRA in an independent and unbiased way. Any future decision by the NLC is also said to be an improper exercise of power within the meaning of s 5(1)(e) of the ADJR Act and contrary to law within the meaning of s 5(1)(j) of the ADJR Act. In effect, the applicants assert that the Court ought to determine the proportions of the July Payment and their application through exercise of judicial power in lieu of the NLC because it cannot make a lawful decision by reason of its apprehended bias.

123    The cross claim of the Galpu really adopts much the same position.

124    As to the first contention, the applicants say that under s 35(4), the NLC, once it has received the Payments, is tasked with the identification of the traditional Aboriginal owners of the subject land, and once that decision is made, it must make a separate, further decision to disburse a payment equal to the Payments received to, or for the benefit of, those identified as traditional Aboriginal owners of the land. In making the latter decision, the NLC was required to make a decision about how to apportion the Payments across the three Aboriginal groups. They describe that as the Entitlement Decision for the purposes of their ADJR Act claim. The applicants advanced the submission that the Entitlement Decision determines what sum is to be paid to which group of traditional Aboriginal owners. It would have been necessary to make an Entitlement Decision prior to disbursing the payments.

125    It is the applicants’ primary case that the NLC was obliged to obtain the relevant information and to treat the parties fairly in accordance with its obligations as the decision-maker. If the Entitlement Decision was made, the NLC would have been obliged to provide detailed reasons upon request under s 13 of the ADJR Act. Those reasons would have dealt with each disputed area of land and explained the principles which it applied in apportioning payments and why it selected those principles. The applicants note that this was the process which was contemplated in the December 2011 Briefing Paper but say it was not ultimately undertaken.

126    I note that the words of s 35(4) of the ALRA do not impose an obligation on the NLC to make a decision about the “respective entitlements” of the relevant traditional Aboriginal owners. The subsection does not require that the payments be apportioned in circumstances where there are multiple Aboriginal groups within the traditional Aboriginal owners. It merely tasks the NLC to pay an amount equal to the amount received to or for the benefit of traditional Aboriginal owners, within six months. However, it is clearly arguable that s 35(4) required the NLC, in circumstances such as the present where there are identifiable groups of traditional Aboriginal owners, to decide how the Payments should be apportioned and applied as between them. So, I accept that step in the contention is arguable.

127    In essence, the applicants’ complaint is about the way in which the NLC allocated those payments internally within the three Aboriginal groups, and (they argue) that was not done by the necessary Entitlement Decision.

128    In my view, the Entitlement Decision is a reference to the process by which the NLC made its decision under s 35(4) of the ALRA, rather than a separate decision which was required to have been made. In other words, by its decision-making processes in identifying the traditional Aboriginal owners and, to the extent it is relevant the respective boundaries of their areas and in deciding how to allocate the Payments, the NLC has made the decisions in relation to the Payments which are required of it by s 35(4). To the extent that the applicants refer to and rely on the processes for decision-making as proposed by the NLC, and as may have been foreshadowed by the December 2011 Paper, the fact that certain steps were not taken or an analysis of certain facts or factors there identified as relevant were not all followed (assuming those allegations are made out) does not demonstrate that the decision or decisions required by s 35(4) were not made. The steps or processes in my view are not the acts or things which have the relevant final or operative effect: see Bond at 341-342.

129    Whether or not the NLC has complied in all respects with the procedural and substantive requirements proposed, or perhaps even necessary, is apparently a matter of serious factual dispute. But, the characterisation of the process of making the decisions under s 35(4) which the NLC has made, leading to the distributions of the Payments as required by s 35(4) as requiring separate and distinct decisions under s 35(4) precedent to the decisions as to how to distribute the Payments is fallacious. Those separate steps or decisions might have been made, but even if they were not (or were not in an appropriate manner) the operative decision as required by s 35(4) is the decision within the specified time as to how to distribute the Payments.

130    Section 3(5) of the ADJR Act provides:

A reference in this Act to conduct engaged in for the purpose of making a decision includes a reference to the doing of any act or thing preparatory to the making of the decision, including the taking of evidence or the holding of an inquiry or investigation.

131    Despite the applicants’ argument that the NLC’s conduct during the negotiation of and leading up to the eventual execution of the Gove Agreement in May 2011 (the first period), its conduct from May 2011 to December 2011 (the second period), and December 2011 onwards (the third period), is reviewable conduct under the ADJR Act, I consider that the conduct referred to (as presently expressed in the amended application) is not covered by the review rights under the ADJR Act.

132    The NLC has made the decisions required by s 35(4) of the ALRA in relation to the Payments. Consequently, I reject that contention of the applicants (and the Galpu). There is, on that basis, no impediment to the NLC now proceeding to decide how to distribute the July payment, subject to considering the alternative argument.

133    At this point, there is obviously a significant contest about the relevance of the conduct of the NLC prior to the making of the Gove Agreement, and the correctness of what the applicants have put forward in that regard, and a significant contest about the correctness of what the applicants have put forward about what transpired between the NLC and the three groups of traditional Aboriginal owners between May and December 2011, and thereafter. In the circumstances, I am cautious about making an order dismissing the ADJR Claim even though I think that, if it remains founded only on the asserted Entitlement Decision being discrete from the decisions as made under s 35(4), it is not maintainable.

134    Accordingly, rather than immediately making an order summarily dismissing the ADJR Act claim or the applicants, and of the Galpu, I will give the parties the opportunity to consider these reasons. It may well follow that the ADJR Act claim will also be dismissed at this point, but having regard to the extensive evidence filed and the fact that that evidence has not been fully considered and determined upon (for the reasons given above), I think it is preferable to hear the parties further before deciding whether to make any final orders.

135    The alternative contention of the applicants under the ADJR Act claim is that the NLC cannot now make a decision under s 35(4) of the ALRA because its past conduct disqualifies it from doing so.

136    The further amended statement of claim refers to an extensive history of dealings, and the quality of those dealings, between the Rirratjingu and the NLC (the Galpu adopt similar but not identical claims). Whilst the applicants accept that much of those allegations are disputed by the NLC, it is said that the conduct alleged, and alternatively the fact that as a result of the conduct alleged the RAC and the Rirratjingu have brought proceedings against the NLC for not having received an appropriate distribution of the past Payments, means that the NLC can no longer lawfully perform its decision-making role under s 35(4) of the ALRA in relation to the July Payment. The NLC has, it is said, a financial interest in what it decides under s 35(4) in relation to the July Payment because its potential liability to the Rirratjingu – if the proceedings referred to succeed – will be directly affected by the extent to which the NLC decides to distribute the July Payment to, or for the benefits, of the Rirratjingu. The RAC say that “financial interest” means that the NLC at the least will not be seen as bringing an independent mind to the decision it must make under s 35(4) in relation to the July Payment. They also say that proposition is supported by the terms of the NLC cross-claim which, if the factual allegations against it are made out, invokes s 49A of the Trustee Act 1985 (NT).

137    In the absence of any other identifiable body capable of making the decision called for by s 35(4), the applicants say the Court should declare that the NLC may not make that decision, and that s 16(2)(b) of the ADJR Act authorises the Court to do so.

138    Obviously, the Court can act only upon the basis of the proceedings against the NLC and its potential consequences. The Court cannot make any qualitative assessment of the prospects of the applicants establishing the facts alleged. It is, therefore, not necessary or helpful to address those allegations in detail. I note that the NLC, apart from disputing them, says a number of things. First, it says that much of the pleaded allegations relate to the circumstances in which the Gove Agreement was reached, and are therefore not relevant. Second, it says that certain allegations relate to the terms of past distribution decisions by the NLC in relation to the Payments, and merely complain because the NLC was aware of the Rirratjingu seeking a different distribution than was decided upon, so that material provides no foundation for that proceeding. Third, it says that certain allegations do not directly concern the NLC in any event. More generally, it disputes any impropriety on its part.

139    More directly, in my view, the asserted “financial incentive” and therefore conflict of interest, in circumstances where no factual findings can be made, does not lead me to the conclusion that it is arguable the NLC will not reasonably decide on the distribution of the July Payment independently, or to the conclusion that a fair minded and informed objective lay observer might reasonably apprehend that the NLC might not bring an independent and impartial mind to the making of that decision: see Johnson v Johnson (2000) 201 CLR 488; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [8]; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [63].

140    It is not necessary therefore to address the alternative NLC contentions, that there is no meaningful relief which can usefully be given in the circumstances because s 16 of the ADJR Act would not entitle the Court to make the decision required by s 35(4) of the ALRA: see Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 579.

141    The above reasons also indicate why, on slightly different bases and factual allegations, the cross-claim of the Galpu also, at present, does not entitle the Galpu to the relief claimed.

142    I do not propose to summarily dismiss the cross-claim of Djalu Gurruwiwi on behalf of the Galpu simply on the ground that it is clearly out of time, and there is no material to explain why the Court should exercise its discretion to extend time. That is not a ruling that an extension of time should be granted.

143    The circumstances in which the cross-claim has arisen are set out in the introductory part of these reasons. The Galpu have not explained why, until the Rirratjingu claim, they have not complained about their share of the Payments as fixed by the NLC. They will need to do so. They have not shown why they have an arguable prospect of showing that the previous allocations of the Payments is not lawful. They will need to do so. They have not responded to the asserted prejudice to the rights of third parties, in particular the Gumatj having regard to the share of the Payments the Gumatj has in the past received and applied. However, it appears that in fact the Galpu may not have received the payments of their past 0.5% appropriation of the Payments. There may be sound material upon which the queries raised above can be addressed. Their position has emerged by them correctly being joined in this proceeding, and so they have had little opportunity as a community to refine their position and to advance it.

144    There is no especial reason why this aspect of the issue should not be stood over, in case the Galpu want a further opportunity to press their claim. I do not think that any prejudice to others by such a deferral is significant; indeed, that will also enable them a greater opportunity to demonstrate the prejudice they will suffer if the extension of time is granted and the cross-claim allowed to proceed.

145    There is a further decision challenged by the third respondent, namely the NLC’s decision on or about 10 June 2011 under cl 6.1(b) of the Gove Agreement to direct RTA to pay moneys payable under cl 5.2 of the Gove Agreement to the Rirratjingu and Gumatj, but not the Galpu. It is not necessary to mention the quantum of the payment. Clause 5.2 of the Gove Agreements provides for payment by the RTA upon ministerial approval of the Gove Agreement pursuant to s 27 of the ALRA. It does not appear to be a payment in respect of Aboriginal land. In my view, s 35(4) of the ALRA is not engaged, so the decision is not reviewable on the basis asserted by the Galpu.

146    I note also that, to the extent to which the Galpu adopted the trust claim of the applicants (as it does in the cross-claim but less firmly in oral submissions) the decision above on the trust claim applies equally to the cross-claim.

CONCLUSION

147    It is first appropriate to formalise the orders which I intimated at the hearing should be made to refine the extent of the hearing, and to address related procedural orders. In doing so, I have had regard to the observations of Branson J in Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495 at [8].

148    There will be separate “procedural orders” that largely reflect the terms of the applicants’ proposed order (draft 16 December 2014) which is enclosed with the applicants’ submissions in relation to the order for the hearing on 3-5 December 2014. I have qualified the proposed order 2(b) by adding a note to reflect the concerns of the NLC and the GAC that the word “competent” is too narrow, and to confine the issues to those which can be addressed on uncontroversial evidence. I have also added an order extending the issues to the “status” of the cross-claim of Djalu Gurruwiwi.

149    For convenience of later reference, I also record that the NLC has filed a note on evidence adduced at trial on 3-5 December 2014 which, usefully and accurately, records the evidence which was relied upon by the parties in the course of submissions. I have not elsewhere in these reasons fully listed that evidence.

150    Having regard to these reasons for judgment, I indicate that:

(1)    the claims in Part A of the Amended Originating Application are refused;

(2)    the claims in Part B of the Amended Originating Application, as presently expressed, are refused;

(3)    the claims on the Galpu cross-claim, as presently expressed, are refused;

(4)    no final orders dismissing the application or dismissing the third respondent’s cross-claim are made, but the proceeding will be listed for further directions at a time and date to be fixed to determine the extent, if at all, the applicants or the Galpu seek to pursue their claims; and

(5)    there is no present impediment to the NLC making a decision under s 35(4) of the ALRA in relation to the July Payment.

Associate:

Dated:    4 February 2015