FEDERAL COURT OF AUSTRALIA

Ellis v Central Land Council [2018] FCA 35

ORDERS

THE COURT ORDERS THAT:

1.    The parties are to confer and file, on or before 4 pm on 16 February 2018 joint proposed minutes of orders reflecting the Court’s reasons for judgment.

2.    In the absence of any agreement as to appropriate orders and relief, on or before 4 pm on 2 March 2018, the parties are to file written submissions, limited to five pages, supporting the orders for which they contend and attaching copies of their respective proposed orders.

THE COURT DIRECTS THAT:

3.    If the parties agree on appropriate orders for costs, and (if applicable) on any lump sum figures for costs, they are to file a joint minute of proposed orders on or before 4 pm on 16 February 2018.

4.    In the absence of any joint proposed costs orders, on or before 4 pm on 2 March 2018, the parties are to file and serve submissions, limited to five pages, on appropriate orders for costs, including whether any costs orders should be made by way of a lump sum and if so, how that lump sum should be determined.

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

REASONS FOR JUDGMENT

MORTIMER J:

INTRODUCTION

1    This proceeding concerns the grant, in October 2016, of four leases and a licence over Aboriginal land as that term is defined in s 3 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (Land Rights Act). The first and second applicants (Ms Marie Elena Ellis and Ms Roseanne Philomena Ellis respectively) live in the community of Amoonguna in the Northern Territory and are part of that community’s traditional landholding group under the Land Rights Act. The third applicant (the Imwernkwernhe Community Limited or “ICL”) is a body corporate established by a number of traditional owners from the Amoonguna community. The first and fifth respondents, the Central Land Council (CLC) and the Amoonguna Aboriginal Land Trust (AALT) respectively, are the entities whose decisions and conduct is impugned in the proceeding. The second, third, fourth and sixth respondents (the Northern Territory, MacDonnell Regional Council, Central Australian Aboriginal Congress Aboriginal Corporation and Indigenous Essential Services Pty Ltd (IES) respectively) are the lessees/licensee of the leases and licence granted by the AALT, at the discretion of the CLC.

2    The originating application also named three individual members of the CLC as respondents, however at the commencement of the trial, the proceeding was discontinued as against those respondents.

3    The phrase “Amoonguna community” is a defined phrase in the applicants’ pleadings. The definition essentially limits the phrase to the way it is used in the Land Rights Act (traditional owners of the land and other Aboriginal people with an interest in the land). In these reasons, I use the phrase more colloquially to include those two groups, but also to include all those people who may be living in the community of Amoonguna.

4    On 16 November 2016, the applicants commenced this proceeding seeking relief with respect to two matters. Those matters are:

(1)    A direction given by the CLC under the Land Rights Act to the AALT to grant leases and a licence over various parcels of land within the Amoonguna community to the Northern Territory, the Council, Congress and the IES; and

(2)    The grant of those leases by the Land Trust to each of the Northern Territory, the Council, Congress and the IES.

5    Two events which assume significance in the factual narrative are first, a meeting on 12 October 2016 of traditional owners and other Aboriginal people, along with the CLC and other Amoonguna residents with interests in the Amoonguna lands; and second, a meeting on 19 October 2016 of the CLC Committee delegated to make the decision about whether or not to give a direction to the AALT to grant the impugned leases and licence.

6    The issues raised by the applicants’ claims have considerable legal and factual complexity. However, not all of those complex issues need to be finally determined, given the view I have taken of the CLC’s decision-making and the construction and operation of the Land Rights Act.

7    For the reasons that follow, I consider the applicants are entitled to relief only in one respect, relating to the execution of the leases and licence. I have formed some preliminary views about the kind of relief that is appropriate and have set those views out in these reasons. The parties will be given an opportunity to make submissions about the appropriate form of relief. The application is otherwise to be dismissed.

The role of the CLC in this proceeding

8    There was some debate between the applicants and the CLC about the latter’s role in this proceeding. The Northern Territory and IES took an active role as a contradictor for the two leases in which they had an interest. Congress and the Council elected not to do the same, and appeared to have relied on the CLC, the Northern Territory and IES to be the active contradictors. Council and Congress played no active part in the proceeding. The Council appeared briefly at the hearing and informed the Court it adopted the submissions made on behalf of the CLC and the Northern Territory, while Congress did not appear at the hearing and informed chambers that it “has appeared only as an observer to date and will abide the result of these proceedings”. Although the Northern Territory played an active role, it also often adopted the submissions made by the CLC. There were some points of difference, and the Northern Territory made at least one important additional submission, about the operation of s 14 of the Land Rights Act.

9    The CLC however, was the decision-maker. Its role in a judicial review would usually accord with the principles set out in R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; 144 CLR 13.

10    That is certainly how a Land Council’s role in other judicial review proceedings has been viewed. In Myoung v Northern Land Council [2006] FCA 1130; 154 FCR 324 at [14], Mansfield J said:

The NLC took the view that it should not play an active role in these proceedings except in one respect, because there is a proponent and an opponent to the claims made. That was a proper approach: R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 33-35. It made submissions concerning its powers and the proper construction of the ALRA. It took that position because there was no intervention by the Attorney-General or other public officer to inform the Court on those issues, beyond the particular interests of the parties. In my view, the NLC acted consistently with the decision in Hardiman in adopting that role: see, eg TXU Electricity Ltd v Offıce of the Regulator-General (2001) 3 VR 93 at [44].

11    Ultimately, the applicants did not press for the CLC to be restrained, formally or informally, from adopting the role it clearly wished to play. Its submissions were of assistance to the Court, however it conducted the proceeding in a truly adversarial way – making a large number of objections to evidence, including to oral evidence, objecting to the course the applicants sought to adopt, and filing a lengthy notice to admit rather than agreeing facts as the Court had invited the parties to do.

12    The Northern Territory made brief written submissions to the effect that the CLC was the appropriate contradictor, because of its greater level of knowledge of the course of events, which none of the lessees possessed. That submission is factually correct, but it does not address the principles which lie behind the Hardiman approach.

13    Despite the CLC’s role as the decision-maker and its protective functions under s 23 in the respect of traditional Aboriginal owners, the CLC cross-examined traditional Aboriginal owners in defence of its own decision-making. The decision whether to assume a role as an active and adversarial contradictor in a proceeding such as this should be the subject, in the future, of careful consideration by a Land Council. The Court also bears some responsibility for not having taken a more active role early in this proceeding to ascertain whether the CLC should have been held to a position closer to Hardiman than the one it wished to adopt.

14    Accordingly, I have adopted the approach of referring to submissions made on behalf of the CLC, although that should be understood as submissions adopted by the Council and the Northern Territory, unless the Northern Territory indicated particular disagreement with a CLC submission. I also note here that the CLC and AALT were jointly represented by the same counsel and made joint submissions – where I refer to the CLC’s submissions, that includes the AALT’s position. Likewise, the Northern Territory and IES were jointly represented by the same counsel and also made joint submissions. Where I refer to the Northern Territory’s submissions, that includes the IES’ position.

Relevant Statutory Provisions

The framework and objectives of the Land Rights Act

15    I deal with the objectives of the Land Rights Act, and what has been said about its operation, at [223] to [236] below. In this part of my reasons, I simply set out the relevant statutory provisions from that Act, and from the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act).

The Land Rights Act provisions

16    The Land Rights Act establishes a process through which Aboriginal people in the Northern Territory can secure rights of a proprietary kind in the land over which they have “affiliations” in accordance with traditional law and custom. The statutory vehicle through which proprietary rights are held is a Land Trust. The process of making grants of Aboriginal land under the Land Rights Act is not relevant to this proceeding but its core aspects are found in ss 5, 10, 11 and 12 of the Land Rights Act, together with specific provisions for particular lands and communities. The process is concerned with the identification of who are the “traditional Aboriginal owners” (as defined in s 3(1)) for the land, and whether other Aboriginal people have interests in the area which should be recognised, or affect a grant to the traditional owners. The Amoonguna community has held land as a result of this process since 1978, through the AALT.

17    The current version of the Land Rights Act is the same version as that in force on 19 October 2016, the date of the CLC’s impugned decisions. The provisions I set out here are taken from this version.

18    Section 4 of the Land Rights Act provides for the establishment of Aboriginal Land Trusts. The fifth respondent, the AALT, was established under this provision. Those parts of s 4 which relate to the use of the seal of the AALT assume some importance in this proceeding. Section 4 relevantly provides:

4 Land Trusts

(1)     The Minister may, by notice published in the Gazette, establish Aboriginal Land Trusts to hold title to land in the Northern Territory for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of the land concerned, whether or not the traditional entitlement is qualified as to place, time, circumstance, purpose or permission, and, subject to subsections 10(1) and (2), shall so establish Land Trusts to hold the land described in Schedule 1.

…

(1AB)     To avoid doubt, the Minister may establish a Land Trust under subsection (1) for the purpose of it holding land that is to be transferred to it under subsection 19(4).

…

Legal status of Land Trust

(3)     A Land Trust:

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

(b)     shall have a common seal;

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

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

Common seal of Land Trust

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

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

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

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

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

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

Notices are not legislative instruments

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

19    The function of Land Trusts and the limitations on the way their functions must be performed are set out in s 5:

5 Functions of Land Trusts

(1)     The functions of a Land Trust are:

(a)     to hold title to land vested in it in accordance with this Act;

(b)     to exercise its powers as owner of land referred to in paragraph (a) for the benefit of the Aboriginals concerned; and

(c)     where the Land Trust is named as the grantee of land in a deed of grant held in escrow by a Land Council—to acquire, as and when practicable, the estates and interests of other persons in the land with a view to the surrender to the Crown of those estates and interests and the delivery to the Land Trust of the deed of grant held by the Land Council.

(2)     A Land Trust:

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

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

(3)     The Lands Acquisition Act 1989 does not apply to the acquisition by a Land Trust, under this Act, of an estate or interest in land.

20    Separately, Land Councils are established under s 21 of the Land Rights Act. Section 22 provides that these Councils are bodies corporate:

22 Land Council to be body corporate etc.

(1)     A Land Council:

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

(b)     shall have a common seal;

(c)     may acquire, hold and dispose of real and personal property; and

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

Note:    The Public Governance, Performance and Accountability Act 2013 applies to a Land Council. That Act deals with matters relating to corporate Commonwealth entities, including reporting and the use and management of public resources.

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

21    The functions of Land Councils are set out in s 23. In particular, this provision makes clear that Land Councils are to consult with traditional Aboriginal owners and communities in respect of Aboriginal land, and in some circumstances to act only after the consent of traditional owners, as a group, has been given (see s 23(3)).

23 Functions of Land Council

(1)     The functions of a Land Council are:

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

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

(ba)     to assist Aboriginals in the taking of measures likely to assist in the protection of sacred sites on land (whether or not Aboriginal land) in the area of the Land Council; and

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

(d)     where the Land Council holds in escrow a deed of grant of land made to a Land Trust under section 12:

(i)     to negotiate with persons having estates or interests in that land with a view to the acquisition of those estates or interests by the Land Trust; and

(ii)     until those estates or interests have been so acquired, to negotiate with those persons with a view to the use by Aboriginals of the land in such manner as may be agreed between the Land Council and those persons; and

(e)     to negotiate with persons desiring to obtain an estate or interest in land in the area of the Land Council:

(i)     where the land is held by a Land Trust—on behalf of traditional Aboriginal owners (if any) of that land and of any other Aboriginals interested in the land; and

(ii)     where the land is the subject of an application referred to in paragraph 50(1)(a)—on behalf of the traditional Aboriginal owners of that land or on behalf of any other Aboriginals interested in the land; and

(ea)     to assist Aboriginals in the area of the Land Council to carry out commercial activities (including resource development, the provision of tourist facilities and agricultural activities), in any manner that will not cause the Land Council to incur financial liability or enable it to receive financial benefit; and

(eb)     for land that is a community living area and in the area of the Land Council—to assist the owner of the land, if requested to do so, in relation to any dealings in the land (including assistance in negotiating leases of, or other grants of interests in, the land); and

(f)     to assist Aboriginals claiming to have a traditional land claim to an area of land within the area of the Land Council in pursuing the claim, in particular, by arranging for legal assistance for them at the expense of the Land Council; and

(fa)     to negotiate, and enter into agreements, as necessary, for the purposes of subsection 70(4); and

(g)     to compile and keep:

(i)     a register recording the names of the members of the Land Council; and

(ii)     a register recording the names of the members of the Land Trusts holding, or established to hold, Aboriginal land in its area and descriptions of each area of such Aboriginal land; and

(h)     to supervise, and provide administrative or other assistance for, Land Trusts holding, or established to hold, Aboriginal land in its area; and

(i)     such other functions as are prescribed by the regulations.

(2)     A Land Council may, with the approval of the Minister, perform any functions that may be conferred on it by a law of the Northern Territory, including, without limiting the foregoing, functions in relation to:

(a)     the protection of sacred sites;

(b)     access to Aboriginal land; and

(c)     schemes for the management of wildlife on Aboriginal land.

(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.

(4)     The reference in paragraph (1)(e) to an estate or interest in land includes a reference to a licence in respect of that land.

22    The term “traditional Aboriginal owners” is defined in s 3(1) of the Land Rights Act to mean:

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.

23    The powers of Land Councils are set out in s 27:

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.

(1A)     A Land Council may, on the request of an Aboriginal and Torres Strait Islander corporation that has received an amount of money from the Council under this Act, provide administrative or other assistance to the corporation.

(2)     Where a Land Council employs a person as a staff member, the terms and conditions of the person’s employment are such as are from time to time determined by the Land Council.

(2A)     Where a Land Council obtains the advice and assistance of a person under paragraph (1)(b), the terms and conditions of the engagement of that person are such as are approved by the Land Council.

(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).

24    Land Councils may appoint a committee of its members to assist the Council with the performance of its functions or the exercise of its powers, in accordance with s 29A:

29A Committees

(1)     A Land Council may, by notice in writing, appoint a committee or committees of its members to assist the Council in relation to the performance of any of its functions or the exercise of any of its powers.

Content of notice

(2)     The notice must specify:

(a)     the name of each committee member; and

(b)     if the committee is appointed in relation to a particular area of the Land Council—that area.

Number of committee members

(3)     A committee must consist of at least 7 members or such other number as is prescribed by the regulations.

Rules for conduct of meetings

(4)     The Land Council must make written rules providing for and in relation to the convening of meetings, and the procedure for the conduct of meetings, of a committee appointed under this section. The rules are not a legislative instrument.

(5)     The Land Council must give a copy of the rules made under subsection (4) to the Minister.

Minutes

(6)     A committee must keep minutes of its meetings.

Inspection

(7)     The Land Council must allow:

(a)     the traditional Aboriginal owners of Aboriginal land in the area of the Council; or

(b)     any Aboriginal living in the area of the Council;

to inspect, at any reasonable time without charge:

(c)     rules made under subsection (4); or

(d)     the minutes of committee meetings (other than any part of the minutes that relates to an excludable matter).

25    Land Councils may delegate their functions and powers to a committee in accordance with s 28(2):

Delegation to Council committee

(2)     A Land Council may, in writing under its common seal, delegate to a committee appointed under section 29A any of the Council’s functions or powers under this Act other than the following:

(aa)     the making of a request under section 21E;

(a)     the making of determinations under section 35;

(b)     any function or power prescribed by the regulations.

26    In relation to dealings with land occupied by the Crown, s 14 provides particular entitlements to the Crown:

14 Occupation etc. by the Crown etc. of Aboriginal land vested in Land Trust

(1)     Where, on the vesting in a Land Trust of an estate in fee simple in land, the land is being occupied or used by the Crown or, with the licence or permission of the Crown, by an Authority, the Crown or the Authority is entitled to continue that occupation or use for such period as the land is required by the Crown or the Authority.

(2)     During the period for which, by virtue of subsection (1), the Crown or an Authority is entitled to the occupation or use of land, any buildings and improvements on that land shall be deemed to be the property of the Crown or the Authority.

(3)     Nothing in this section prevents the granting by a Land Trust of a lease of land referred to in subsection (1) to the Commonwealth, the Northern Territory or an Authority, as the case may be, and, if such a lease is granted, the land ceases to be land to which this section applies.

(3A)     Nothing in this section prevents a Land Trust granting a lease of land to an approved entity under section 19A that includes land referred to in subsection (1) of this section.

(3B)     If land (the applicable land):

(a)     is of a kind referred to in subsection (1); and

(b)     is part of land that is leased to an approved entity under section 19A;

nothing in this section prevents the approved entity granting a sublease of the applicable land to the Commonwealth, the Northern Territory or an Authority, as the case may be.

(3C)     If such a sublease is granted, the applicable land ceases to be land to which this section applies.

(4)     This section does not apply in relation to an occupation or use of land that is authorized by the Atomic Energy Act 1953 or any other Act authorizing mining for minerals and this section does not prejudice the operation of the Atomic Energy Act 1953 or that other Act, as the case may be.

27    Within this context of the functions of the Land Trusts and Land Councils, the requirements to consult with traditional Aboriginal owners and the occupation of land by the Crown, s 19 of the Land Rights Act provides for the dealings and disposals of interests in land by Land Trusts. It commences with a prohibition about dealing with Aboriginal land and then sets out the circumstance in which that prohibition does not apply. Section 19 relevantly states:

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 must not deal with or dispose of, or agree to deal with or dispose of:

(a)     any estate or interest in land vested in it; or

(b)     the land described under the heading “JABIRU” in Part 4 of Schedule 1.

…

(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.

(3A)     If a Land Trust is considering granting a lease under subsection (3), the relevant Land Council may, by notice in writing given to the Minister, request that, if the Land Trust and the Commonwealth intend to enter into the lease, the Executive Director:

(a)     enter into the lease on behalf of the Commonwealth; and

(b)     administer the lease.

(3B)     If the Minister receives a request under subsection (3A), the Minister must, by notice in writing given to the relevant Land Council, agree or refuse to agree to the request.

(3C)     A notice given under subsection (3A) or (3B) is not a legislative instrument.

…

(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.

(8)     The grantee of an estate or interest under this section is not empowered to transfer his or her interest as such grantee to another person, or to grant to another person an interest dependent upon his or her interest as such grantee, except with the consent, in writing, of the relevant Land Council and, if the consent of the Minister was required to the grant of that estate or interest to the grantee, the consent, in writing, of the Minister.

(8A)     A Land Council may give a consent under subsection (8) at the time it gives a direction under subsection (2), (3), (3F), (3H) or (4A) or at any later time.

(8B)     The Minister may give a consent under subsection (8) at the time he or she gives a consent under subsection (2), (3), (3F), (3H) or (4A) or at any later time.

(8C)     A consent of the Minister or a Land Council under subsection (8) relating to a transfer or grant may:

(a)     be general; or

(b)     be expressed to be limited to a specified person or a person included in a specified class.

(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.

(9A)     When the Minister is satisfied that a Land Council has refused, or is unwilling, to give a direction under subsection 11A(5) to a Land Trust to grant an estate or interest in land in accordance with an agreement entered into by the Land Council under subsection 11A(2), the Minister shall, in the name of, and on behalf of, that Land Council, give the Land Trust that direction.

(9B)     Where the Minister is satisfied that a Land Trust has refused, or is unwilling, to comply with a direction given under subsection 11A(5), or subsection (9A) of this section, to grant an estate or interest in particular land on particular terms and conditions, the Minister shall, in the name of, and on behalf of, that Land Trust, grant that estate or interest in relation to that land on those terms and conditions.

(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.

(12)     The preceding provisions of this section do not authorise the grant by a Land Trust of the fee simple in land vested in it except in the circumstances referred to in paragraph (4)(b).

(13)     If a Land Trust grants an estate or interest in Aboriginal land under this section, then, at the direction, in writing, of the relevant Land Council, the Land Trust may, in writing, authorise a specified person, or any person included in a specified class of persons, to enter or remain on the land for a specified purpose that is related to that estate or interest.

Note:    Section 70 will not apply to a person who enters or remains on the land in accordance with such an authorisation: see subsection 70(2B).

(14)     A direction or an authorisation under subsection (13) is not a legislative instrument.

28    “Grant” is defined in s 3(1):

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

29    In relation to the phrase “estate or interest in land”, subsection 3(2) states:

(2)     Unless the contrary intention appears, a reference in this Act to an estate or interest in land includes a reference to an interest by way of a right against the Crown to a grant of an estate or interest in land, but does not include a reference to:

(a)     a mining interest;

(b)     an interest arising out of the operation of the Atomic Energy Act     1953 or any other Act authorizing mining for minerals;

(ba)     a lease or other interest in land, or a right granted in respect of land, under a law of the Northern Territory relating, in whole or in part, to the mining or development of extractive mineral deposits;

(c)     an interest arising out of the taking possession, mining or occupation of land by virtue of a miner’s right; or

(d)     an interest by way of the occupation or use, with the licence or permission of the Crown, of land by an Authority or a mission.

30    Section 77A is an important provision, although it did not feature much in the parties’ submissions, a problem to which I return. It is expressed to have a deeming effect, and deals with the circumstances in which the consent of traditional Aboriginal owners can be taken to have been given:

77A Consents of traditional Aboriginal owners

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

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

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

31    The traditional rights of Aboriginal people to use or occupy Aboriginal land are made subject to grants such as those made under s 19:

71 Traditional rights to use or occupation of Aboriginal land

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

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

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

(a)     a licence granted under section 19; and

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

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

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

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

Judicial review provisions

32    The applicants invoke this Court’s jurisdiction under both s 39B(1A)(c) of the Judiciary Act 1903 (Cth) and ss 5 and 6 of the AD(JR) Act. The operation and effect of s 19(6) of the Land Rights Act on the supervisory jurisdiction of this Court under both pieces of legislation is a key question in this proceeding, if any of the applicants’ grounds of judicial review otherwise have force. The applicants’ contentions about the scope and operation of the AD(JR) Act in the light of s 19(6) are somewhat novel, and it is necessary to set out some of the key provisions upon which the applicants rely.

33    Section 39B relevantly provides:

39B Original jurisdiction of Federal Court of Australia

Scope of original jurisdiction

(1)     Subject to subsections (1B), (1C) and (1EA), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

(1A)     The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

(a)     in which the Commonwealth is seeking an injunction or a declaration; or

(b)     arising under the Constitution, or involving its interpretation; or

(c)     arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.

Note:    Paragraph (c) does not prevent other laws of the Commonwealth conferring criminal jurisdiction on the Federal Court of Australia.

34    In form, the applicants rely on all grounds in s 5(1) of the AD(JR) Act except s 5(1)(h), although it is fair to say the focus was on paragraphs (a), (c), (d) and (e). Section 5 of the AD(JR) Act relevantly provides:

5 Applications for review of decisions

(1)     A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds:

(a)     that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b)     that procedures that were required by law to be observed in connection with the making of the decision were not observed;

(c)     that the person who purported to make the decision did not have jurisdiction to make the decision;

(d)     that the decision was not authorized by the enactment in pursuance of which it was purported to be made;

(e)     that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

(f)     that the decision involved an error of law, whether or not the error appears on the record of the decision;

(g)     that the decision was induced or affected by fraud;

…

(j)     that the decision was otherwise contrary to law.

(2)     The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:

(a)     taking an irrelevant consideration into account in the exercise of a power;

(b)     failing to take a relevant consideration into account in the exercise of a power;

(c)     an exercise of a power for a purpose other than a purpose for which the power is conferred;

(d)     an exercise of a discretionary power in bad faith;

(e)     an exercise of a personal discretionary power at the direction or behest of another person;

(f)     an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

(g)     an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;

(h)     an exercise of a power in such a way that the result of the exercise of the power is uncertain; and

(j)     any other exercise of a power in a way that constitutes abuse of the power.

…

35    The applicants also rely on the following parts of s 6 of the AD(JR) Act:

6 Applications for review of conduct related to making of decisions

(1)     Where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies, a person who is aggrieved by the conduct may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the conduct on any one or more of the following grounds:

…

(b)     that procedures that are required by law to be observed in respect of the conduct have not been, are not being, or are likely not to be, observed;

(c)     that the person who has engaged, is engaging, or proposes to engage, in the conduct does not have jurisdiction to make the proposed decision;

(d)     that the enactment in pursuance of which the decision is proposed to be made does not authorize the making of the proposed decision;

…

(f)     that an error of law had been, is being, or is likely to be, committed in the course of the conduct or is likely to be committed in the making of the proposed decision;

…

(j)     that the making of the proposed decision would be otherwise contrary to law.

…

36    Section 4 of the AD(JR) Act assumes some prominence in the arguments of the applicants about the effect of s 19(6) of the Land Rights Act. It is a compact provision, which provides:

4 Act to operate notwithstanding anything in existing laws

This Act has effect notwithstanding anything contained in any law in force at the commencement of this Act.

The leases, the key entities and the general sequence of events

37    The matters I set out in this section were the subject of notices to admit, and of affidavit evidence as to facts in dispute from those notices, as well as additional affidavit evidence. None of the factual matters I set out here are critical to the resolution of any of the applicants’ grounds. Fact finding which falls into that critical category is dealt with in a later section of these reasons. I am satisfied that all of the matters to which I refer in this section have been proven on the evidence before the Court, through the admissions made, documents tendered, or unchallenged evidence.

The current status of the leases and licence

38    The impugned direction to grant the leases and licence in issue was given by the CLC to the AALT on 19 October 2016, at a CLC meeting in Alice Springs. I return to the details of the chronology in more detail below. The leases and licence in issue are as follows.

    A lease from the AALT to the IES: a s 19(3) lease over Lots 95, 189 and 190 for public infrastructure services for a 12-year term commencing on the date the last party to execute the lease does so. There is an option to extend the lease for up to 40 years. IES is a not-for-profit subsidiary wholly owned by the Power Water Corporation, established to support the provision of electricity, water and sewerage services to remote indigenous communities in the Northern Territory, including to the Amoonguna community, under an agreement with the Northern Territory government. This lease relates to a sewer pump station, treatment ponds and overflow so as to provide the sewage infrastructure for the Amoonguna community.

    A lease from the AALT to the Northern Territory of Australia: a s 19(3) lease over Lot 88 for public infrastructure services for a 12-year term, commencing on the date the last party to execute the lease does so. It includes an option to extend the lease for up to 40 years. This lease relates to the Amoonguna School.

    A lease from the AALT to the Council: a s 19(4A) lease over Lots 61, 162 and 187 for public infrastructure services for a 12-year term, commencing on 1 July 2014. It includes an option to extend for up to 40 years. This lease relates to Council offices, a works depot and landfill, and was the only lease to grant rights of possession retrospectively.

    A licence from the AALT to the Council: a s 19(4A) licence over Lots 79, 182 and 188 for community parks for a 12-year term commencing on the date the last party to execute the licence does so. It includes an option to extend the licence for up to 40 years. This licence relates to community parks and recreational facilities.

    A lease from the AALT to Congress over Lot 60 for a health clinic for a 12-year term commencing on the date the last party to execute the lease does so. This lease makes no provision for an extended term. According to the terms of this lease, it was made under s 19(3) of the Land Rights Act. However, Senior Counsel for the CLC noted during the trial that this was an error, and that the lease should actually have been made under s 19(2)(c). For the purposes of these reasons, and given that it was not raised as an issue by the applicants, it is not necessary to decide whether the lease was made under s 19(2)(c) or under s 19(3). As the CLC Committee considered this lease under s 19(3), I refer throughout these reasons only to s 19(3).

39    It will be apparent from the nature of the leases and licence, and it is the fact, that the activities permitted under the lease were all activities that had been undertaken on the land for some considerable time prior to October 2016.

40    The Northern Territory’s submissions in particular tend to characterise what was occurring through these leases as the regularisation of arrangements which had been in existence for some time. There is some force in that characterisation. However, what had changed, and what underlies this proceeding, is the desire of those members of the Amoonguna community who support the applicants, and ICL as an indigenous-run corporation, to take charge of the leases themselves and, in effect, to either run the services themselves, or sub-lease them out to entities such as Congress.

41    At this point I should make it clear that I do not accept, on the evidence, that there was any urgency for these kinds of leases, in the way that the Northern Territory submits. As Mr Levy frankly conceded, services had been provided to the Amoonguna community prior to 2007 for many decades without any formal proprietary arrangements. That was because, on the Northern Territory’s argument, of s 14 of the Land Rights Act. Section 14 continued to have effect, as Mr Levy submits. Section 14 would have authorised any urgent repairs or sewerage works. There was no need for these leases and licence to be pushed through for this to occur.

42    After the 19 October 2016 direction was made, only some of the leases and the licence were executed: namely those to Congress and the Council. The leases to the Northern Territory/IES were not executed by those parties. None of the leases had been registered under the Land Title Act (NT), although at least some of the respondents have evinced an intention to do so and the Council, Northern Territory and IES leases (but not the licence nor the Congress lease) each provide for such registration.

43    On 18 January 2017, the applicants applied for interlocutory relief to preserve the status quo pending the hearing and determination of their claims, and sought injunctive relief to preclude the remaining leases from being executed and any of them from being registered under the Land Title Act. All respondents eventually gave undertakings to that effect, which were recognised in orders made by the Court on 2 February 2017.

44    Thus, the position remains as I have set out above. In reality, all of the lessees have continued to conduct the activities for which the leases provide on the land concerned, and there has been no practical interruption or alteration to the services provided to the Amoonguna community. For example, Congress has continued to operate the health services for members of the Amoonguna community.

The evidence

45    Considerable evidence, both documentary and by affidavit was adduced. Not all witnesses were required for cross-examination. Documents were adduced either through witnesses, or through a notice to admit filed on behalf of the CLC. In the end, most of the key documents were agreed. The CLC took a large number of objections to evidence and where the parties could not agree even after further encouragement, rulings were given.

46    The applicants adduced evidence from four witnesses:

(1)    Marie Elena Ellis, the first applicant, was the applicants’ primary witness. She affirmed four affidavits, giving evidence as to what happened at the key meeting at the Chifley Hotel on 12 October 2016, at which she was present. She also gave evidence regarding the interests of her community and the ICL, of which she was the Senior Community Development Officer, and at times, President, as well as evidence concerning Arrernte culture and law, and seniority within the Arrernte people.

(2)    Brett Ian Midena, the applicants’ legal representative, affirmed four affidavits exhibiting correspondence and documents (such as minutes and transcripts of meetings and leases) relevant to the history and background of the dispute. Mr Midena was not subject to cross-examination.

(3)    Elaine Ross is an “apmereke-artweye” of the Antulye estate group, which is part of the Arrernte group of people. I return to these concepts below. Ms Ross affirmed an affidavit giving evidence about meetings regarding the management of Amoonguna land, and her knowledge of what occurred at the Chifley Hotel meeting, at which she was not present.

(4)    Jeffrey Oliver is the senior “kwertengerle” for Amoonguna land. Mr Oliver gave oral evidence, after being subpoenaed by the applicants, as to whether he expressed consent to the grant of the leases.

47    The CLC adduced evidence from seven witnesses:

(1)    Phillip James Alice is an “apmereke-artweye”, and affirmed an affidavit, giving evidence about what occurred in the lead-up to and during the Chifley Hotel meeting, at which he was present.

(2)    Robert Angus Gosford is the CLC’s legal representative and was also present at the Chifley Hotel meeting. He has been involved with the CLC’s day-to-day management since 2015, and affirmed an affidavit giving evidence as to the lease proposals over Amoonguna land and the process leading up to the execution of the instruments of grant.

(3)    Brian Connelly is the Manager of the Anthropology Section of the CLC. He affirmed an affidavit giving evidence about the Arrernte people, including decision-making processes and seniority within the group, and the knowledge of the CLC in relation to the Arrernte people.

(4)    Helen Wilmot is an anthropologist employed by the CLC, and attended the Chifley Hotel meeting. She affirmed an affidavit giving evidence about her understanding of the traditional owners of Amoonguna and seniority within the group, as well as what happened at the Chifley Hotel meeting.

(5)    Jasmin Cherie Rucioch is a senior administrative assistant with the CLC and affirmed an affidavit giving evidence about the execution of the leases and licence. Ms Rucioch was not cross-examined.

(6)    Meagan Gail Wynniatt is an administrative officer within the Directorate Section of the CLC and affirmed an affidavit giving evidence about the minutes and agenda items of the CLC Executive Committee meetings. Ms Wynniatt was not subject to cross-examination.

(7)    Melany Rebeka Matteucci is a senior administrative assistant with the CLC and affirmed an affidavit giving evidence about the signing of authorities by members of the AALT on the day that Ms Rucioch was absent from work. Ms Matteucci was not subject to cross-examination.

48    The Northern Territory and IES jointly adduced evidence from four witnesses, none of whom were cross-examined:

(1)    Leanne Dawn Evans is the Director, Remote Programs and Projects, Land Tenure at the Department of Housing and Community Development of the Northern Territory. She affirmed two affidavits, giving evidence regarding leases and infrastructure on Amoonguna land, as well as negotiation processes in respect of the leases.

(2)    Vicki Faith Baylis is the CEO of the Department of Education of the Northern Territory and affirmed an affidavit giving evidence regarding the school located on Amoonguna land and the lease arrangements.

(3)    Nigel Robert Deacon is the Senior Manager Water and Sewer Services, Remote Operations, Power Water Corporation and gave evidence regarding the sewerage assets, infrastructure and leases over Amoonguna land.

(4)    Craig Anthony Smyth is the Director of Litigation, at the Solicitor for the Northern Territory, Department of the Attorney-General and Justice. He affirmed an affidavit giving evidence of the circumstances surrounding the filing of the ex parte interlocutory application and originating application in November 2016.

49    The Council adduced evidence from one witness, Jeffery Allan MacLeod, the CEO of the Council. Mr MacLeod gave evidence as to the execution of the leases and licence and the services provided by the Council at Amoonguna. Mr MacLeod was not cross-examined.

50    Congress adduced evidence from one witness, Donna Ah Chee, the CEO of the Congress. Ms Ah Chee affirmed an affidavit giving evidence as to Congress’ activities, the operation and occupation of the health clinic in Amoonguna, and her understanding of the events leading up to the execution of the lease over the health clinic in 2016.

Amoonguna

51    Amoonguna is a community which lies about 20 km south-east of Alice Springs CBD, in the country of the Antulye people. It is about 5.3 square kilometres in size, and was established in the 1960s as an Aboriginal reserve. It was scheduled as Aboriginal land under the Land Rights Act in July 1978.

52    In his affidavit, Mr Connelly describes the Aboriginal traditions of Arrernte people in relation to land. These propositions are not contested, and are broadly consistent with Ms Marie Ellis’ evidence. He deposes that Arrernte people form groups that are connected to particular areas of land known in anthropological literature as “estates”. Ms Ellis deposes that such estates are referred to as “apmere” in the Arrernte language, a term which I adopt. These apmere were formed by the activities of mythological beings during a period known in English as the Dreaming. Ms Ellis agrees that the term “Dreamtime” or “Dreaming Tracks” is sometimes used in English to describe this concept, which in Arrernte is called “Altyerre”, but says that these words do not properly express Altyerre. Ms Ellis deposes:

This concept [of Altyerre] is very deeply important to us. It is hard to explain, but it concerns our ancestors, our whole system of law. It is about the “creation” and all things. It is also about our ancestors and their powers being deep in us, in our apmere, in our law and in our ceremonies… it is not just things, and times and places…

Altyerre is a continuous creation. You could think of bushfire, rain, re-growth.

53    In relation to Amoonguna land, the relevant apmere is the Antulye apmere. The Arrernte people with interests in and around Amoonguna are a part or a subset of the wider Antulye apmere. The current senior generation in Amoonguna trace their ancestry back to their paternal and maternal grandparents, which is customary for Arrernte societies. The Antulye apmere is of Penangke/Pengarte patrimoiety or “sub-section”, sometimes referred to as “skin”. Within this apmere, there are two important groups of people who exercise rights and responsibilities in relation to the land: the “apmereke-artweye” and the “kwertengerle”. There is some disagreement between the parties about what flows from the hierarchy of members in these groups, for the purposes of traditional decision-making and I discuss this at [155] below. The Antulye apmere have responsibilities for the care of Amoonguna land and the Arrernte people on that land.

54    Prior to the establishment of ICL, the Amoonguna Community Inc (ACI) was responsible for the management of Amoonguna, except for NT Portion 568. ACI was incorporated as an incorporated association under the Associations Incorporation Ordinance 1963 (NT) on 22 July 1975. Under the ACI’s original constitution, membership was limited to Aboriginal people accepted by ACI’s governing committee. Subsequently, ACI amended its constitution in 1997 to accept membership from all Aboriginal persons aged 18 and over who normally reside at Amoonguna or who are traditional owners of Amoonguna. According to Ms Marie Ellis’ evidence, which was not challenged on this point and which I accept, until 30 June 2008, ACI provided services and community development work at Amoonguna for the benefit of the Amoonguna community, including building construction, local employment programs, community services such as aged care, community “night patrol” and a local bus service between Amoonguna and Alice Springs.

55    According to Ms Marie Ellis, the status and operations of the ACI were affected by the 2007 Northern Territory Intervention. I discuss the relevance of the Intervention to this proceeding at [72]. In any event, ACI ceased to exist on 1 July 2008. Legal proceedings were commenced by Ms Ellis and others in relation to the Intervention, with that dispute being settled in 2015. There is no evidence before the Court in relation to that dispute.

56    In September 2012, following meetings within the Amoonguna community, traditional owners and members of the Amoonguna community decided to establish the ICL to succeed the ACI.

ICL

57    ICL was established in November 2012 under the Corporations Act 2001 (Cth) as a company limited by guarantee. ICL is also registered as a charity with the Australian Charities and Not-for-profits Commission. Membership of ICL is open to all Aboriginals over 18 years of age who are traditional Aboriginal owners. Its decision-making processes, as set out in its constitution, policies and procedures, are intended to allow decisions about Amoonguna to be made in accordance with Anpernirrentye, or Arrernte law.

58    ICL was established, according to the uncontested evidence of Ms Marie Ellis, because some traditional owners and Aboriginal residents of Amoonguna were concerned:

(a)     to apply Arrernte decision-making processes to the management and development of Amoonguna Land for the benefit of the Amoonguna Community,

(b)     to see Amoonguna properly managed and developed by and for the benefit of the traditional Aboriginal owners of the Amoonguna Land and other members of the Amoonguna Community,

(c)     to provide government authorities, including the CLC, a practical and meaningful way of properly consulting the traditional Aboriginal owners of Amoonguna Land and/or the Amoonguna Community, and

(d)     to avoid facing further disempowerment and ‘intervention’ from government authorities including:

(i)     the Commonwealth Government, and the CLC under the ALRA; and

(ii)     the Northern Territory Government, and the MRC under the Local Government Act (NT).

ICL has been established to enable traditional Aboriginal owners of Amoonguna to assume responsibility for the management of Amoonguna, as did ICL’s predecessor, ACI. In particular, the establishment of ICL was designed to improve the well-being of the traditional Aboriginal owners of the Amoonguna Land and the residents at Amoonguna:

(a)     by managing the rights and entitlements under Anpernirrentye in Amoonguna of the traditional Aboriginal owners of Amoonguna and the traditional owners resident at Amoonguna;

(b)     by being the vehicle by which the traditional Aboriginal owners of Amoonguna and the traditional owners resident at Amoonguna exercise their rights and entitlements under Anpernirrentye (Arrernte law) in Amoonguna, including under the ALRA; and

(c)     by governing, managing and developing Amoonguna.

59    Since its establishment, ICL has pursued activities to give effect to its objects, including performing housing repairs and maintenance, and establishing a building company to promote local training and employment.

60    The composition of ICL at various points in time was not in dispute. At times it might appear from some of the evidence as if ICL was only constituted by Ms Marie Ellis. The evidence shows that is not the case. At the time of the October 2016 meeting, the CLC distributed a pamphlet which showed the then composition of the Board of ICL. It showed the following people:

    Chairperson: Theresa Alice

    President: Marie Ellis

    Board Member: Theo Alice

    Board Member: Mark Alice

    Board Member: Marina Alice

    Board Member: Clement Alice

    Board Member: Joseph Alice

    Board Member: Phillip Alice

    Board Member : Katherine Alice

    Board Member: Roseanne Ellis

    Board Member: Lynette Ellis

    Board Member: Edward Neal

    Board Member: Elaine Ross

    Board Member: Rosalie Riley

    Board Member: Marcia Alice

    Board Member: Maree Oliver

    Board Member: James Oliver

    Board Member: Michael Ellis

    Board Member: Jeffrey Oliver

61    At the 12 October 2016 meeting, according to the minutes taken by Mr Gosford and the transcript adduced into evidence, Ms Marie Ellis informed the CLC that following a meeting in September, a number of the board members had resigned, including Mr Jeffrey Oliver and Ms Elaine Ross. Some of these resignations were subsequently withdrawn, notably (but possibly not only) Ms Ross’ resignation.

62    Management of the ICL is conducted through two ICL councils: the Tribal Council and the Community Council. The Tribal Council manages town planning, law and culture at Amoonguna, and comprises senior traditional Aboriginal owners, or Akngerre-apate areye. Any Akngerre-apate areye who are not members of the Tribal Council, such as Mr Oliver, are to be invited to Tribal Council meetings. The Community Council manages the day-to-day services and administration at Amoonguna. Its members are residents of Amoonguna, and include Ms Marie Ellis and Ms Roseanne Ellis.

63    The fact that there were members of ICL who apparently voted in October 2016 against leases to ICL (such as Mr Phillip Alice) was never really explained in the evidence. Mr Alice’s own affidavit deposes that he remained a board member of ICL at the time the affidavit was made, and appears to suggest he was also a board member at the time of the 12 October 2016 meeting.

64    It is fair to say, on the evidence before the Court, that support for and involvement in ICL amongst Amoonguna community members appears to have ebbed and flowed over recent years. It is also fair to say, on the evidence, that Ms Marie Ellis, as President, was and remains a driving force in ICL.

The way leases have been organised in remote Aboriginal communities

65    The mechanism by which communities on Aboriginal land are serviced (whether as to housing, infrastructure or other services) is through the grant of proprietary interests by way of leases and licences from a Land Trust to third parties, which then provide the services back to Aboriginal communities. Once that fact is set out, it is plain there might be other models available, but that is the current arrangement.

66    How leases in connection with the Northern Territory government occur is dealt with in Ms Evans’ affidavits, and I accept the evidence she gave, which was not contested. What I set out here is the position that, as I understand it, existed at the time of trial.

67    The Land Tenure Unit within the Department of Housing and Community Development negotiates leases of Aboriginal land on behalf of Northern Territory government agencies. The parties to the leases are generally the relevant Land Trust, Land Council and one of three government agency entities with authority to execute leases: IES, the Department of Corporate and Information Services or CEO Housing. CEO Housing is a body corporate established under the Housing Act (NT). As I understand Ms Evans’ evidence, these three entities and this process applies to what might be called infrastructure or community support leases.

68    Remote community housing in Central Australia is dealt with separately, through the Commonwealth Executive Director of Township Leasing, which is established under s 20B of the Land Rights Act. This entity secures a long term lease over the housing, and subleases for a shorter term to CEO Housing. The sub-leases are for a term consistent with the Commonwealth funding period for the provision of community housing.

69    Ms Evans deposed that prior to the Commonwealth’s “National Emergency Response” in the Northern Territory in 2007, there had been an absence of formal tenure (i.e. leases) over Territory government infrastructure on Aboriginal land. She noted in her evidence however, the Northern Territory’s view of its rights under s 14 of the Land Rights Act, a matter which featured in the submissions for the Northern Territory in this case and to which I return briefly later in these reasons.

70    Ms Evans deposes that the Territory has never paid rent for the lots the subject of the impugned leases: that is, for the lot on which the school is situated, and the lots for sewerage infrastructure.

The relevance of the Northern Territory Intervention to the issues in this case

71    Ms Evans explained in her evidence how the Northern Territory Intervention has affected the tenure situation in Aboriginal communities situated on land held under the Land Rights Act. At [13] of her first affidavit, she deposed:

During the period 2007 to 2012, the Commonwealth held compulsory five year leases over 64 communities in the Northern Territory under the Northern Territory National Emergency Response Act 2007 (Cth). Most, but not all, of these communities are located on Aboriginal land granted under the ALRA. A small number are located on Northern Territory freehold owned by Aboriginal corporations granted under Territory legislation. During this period, the Commonwealth changed the conditions of its funding agreements to require all new capital investment in these communities to be underpinned by a voluntary long term lease at the expiry of the compulsory five year leases. This led to the adoption of an NTG wide policy from 2008 that the Territory negotiate with the relevant Aboriginal land councils (and Aboriginal corporations) for the grant of leases over all Aboriginal land (and NT freehold land) on which NTG infrastructure was situated.

(Emphasis added.)

72    It is difficult to see how a lease can be truly “voluntary” if it is required before the Aboriginal community concerned receives any capital investment in its community. It seems to me the word “voluntary” as used by Ms Evans can only mean “voluntary” as opposed to leases imposed through Commonwealth legislation such as the 2007 Intervention legislation (that is, the Northern Territory National Emergency Response Act 2007 (Cth) and related legislation).

73    Ms Evans goes on to describe the task undertaken by the Land Tenure Unit, of which she is a part, since 2008 to set about negotiating these leases. She deposes that since 2008, of the 64 existing communities, 56 now have housing leases in place and eight communities do not have housing leases. Amoonguna is one of the communities without housing leases. Sixty-two of those 64 communities have infrastructure leases as at June 2017. Amoonguna is one of the communities which does not. Ms Evans deposes that her understanding of why some communities do not have these leases in place is, at least as one reason, because of what she describes as “traditional owner disputes”.

74    Another possibility, it seems to me, is that some communities (or some traditional owners within those communities) are unhappy with the model which underpins these lease arrangements.

75    Once these circumstances are understood, it is not difficult to see why Land Councils will be concerned to ensure that leases are granted in a way that continues and secures tenure for government tenants. If they do not achieve this outcome, at least on the way Ms Evans’ evidence describes the situation, the Commonwealth may not allocate any funds for capital investment into Aboriginal communities.

76    In a second affidavit filed late with the leave of the Court, Ms Evans gives further evidence about the negotiation process for the impugned leases. She deposes that from approximately 2010 onwards, the Northern Territory commenced negotiations with the Northern Land Council and the CLC to secure “template” infrastructure leases under s 19 of the Land Rights Act. The substantive terms for the leases, including lease payments, were negotiated through this process. The negotiation process concluded in 2012, and the first leases were granted in that year.

77    I note this coincides with the evidence about the first steps taken by the CLC to conclude leases over Amoounguna community land, at that time apparently negotiating with ICL. How that sits with Ms Evans’ evidence, and whether there was ever any realistic prospect of ICL securing those infrastructure leases as head leases given the CLC was negotiating directly on a “template” basis with the Northern Territory government, was not explored during the hearing. However, the Northern Territory did submit it was not lawfully possible for ICL to secure a “head-lease” under s 19. The Northern Territory accepted ICL could do so under s 19A.

The role and structure of the CLC

78    The CLC is a statutory body established as a Land Council under s 21 of the Land Rights Act. Pursuant to ss 23 and 27 of that Act, it has statutory functions and powers in relation to the management of Aboriginal land: see the provisions set out at [22]-[24] above. Relevantly, the CLC’s functions include ascertaining and expressing the wishes and opinions of Aboriginals living in the area of the CLC as to the management of Aboriginal land in that area, protecting the interests of traditional owners in that area, consulting with traditional owners with respect to any proposal relating to the use of that land and negotiating on behalf of traditional owners with persons seeking to obtain an interest in that land. The CLC also has the function and power to direct the AALT, as the relevant Land Trust, to grant an estate or interest in land vested in AALT to another person under s 19(4A). Importantly, as a Land Council, the CLC must not take any action in relation to land held by AALT unless it is satisfied that the traditional owners understand the nature and purpose of the proposed action and as a group consent to it: s 23(3)(a). There is a direct parallel between the purpose and terms of this provision and s 19(5).

The CLC Committee

79    There was no dispute between the parties about who gave the impugned direction under s 19(5), and how the CLC Committee was constituted. It was a committee of members of the CLC established under s 29A of the Land Rights Act. By s 28(2) of the Act, a Land Council can delegate to a Committee appointed under s 29A any of its functions or powers under the Act, aside from those specified in s 28(2).

80    Membership of a Land Council, subject to eligibility requirements relating to such matters as convictions for dishonesty offences, is described in s 29(1) and (2):

29 Membership of Land Council

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

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

81    The clear intention of s 29, and then of s 29A, is that those people who are traditional Aboriginal owners for the land in respect of which the Land Council performs its functions and exercises its powers will be the people who make decisions about the exercise of powers and the performance of functions by the Land Council.

82    Section 28(4) of the Land Rights Act provides:

(4)    Where the provisions of this Act require that a Land Council, before performing a function or exercising a power conferred upon it to do, or to consent to the doing of, an act or thing, satisfy itself that:

(a)    the traditional Aboriginal owners (if any) of the land affected by the performance of the function or the exercise of the power understand the nature and purpose of the act or thing and consent to it; and

(b)    any Aboriginal community or group that may be affected by the doing of the act or thing has been consulted and has had adequate opportunity to express its views to the Land Council;

then, if that function or power is delegated, the delegate may perform the function or exercise the power if the delegate is satisfied:

(c)    of the matter referred to in paragraph (a); and

(d)    that any Aboriginal community or group that may be affected by the doing of the act or thing has been consulted and has had adequate opportunity to express its views to the delegate.

83    By s 28(4), read with both s 23(3) and s 19(5), as a delegate, the Committee was required itself to form the requisite state of satisfaction required by s 19(5) as to consent (for traditional owners) and as to consultation, for community members affected by the proposed leases.

84    The members of the CLC Committee were drawn from the various regions covered by the CLC. Region 1 covers Amoonguna and Santa Teresa. Ms Ngarla Kunoth-Monks was the member for this region and Mr Bernard Abbott was the alternate member. There is no evidence one way or the other whether Ms Kunoth-Monks or Mr Abbott are from Amoonguna.

85    The other members, at the relevant time, including alternate members were:

    Francis Kelly (Chair)

    Sammy Butcher (Deputy Chair)

    Sammy Wilson

    Norbert Patrick

    Teddy Long

    Sid Anderson

    Michael Jones

    Michael Liddle

    Leo Petrick

    Jasper Haines

    Louis Clyne (Alternate)

    Desley Rogers (Alternate)

    Harry Nelson (Alternate)

    Douglas Multa (Alternate)

    Kelvin Morrison (Alternate)

    George Club (Alternate)

    Kenny Martin (Alternate)

    Ron Hagen / Kim Brown (Alternates)

86    This Committee was appointed pursuant to s 29A of the Land Rights Act at a meeting over 16, 17 and 18 August 2016. The resolution following that meeting also confirmed the continuing delegation of powers to the Committee.

The AALT

87    The AALT is a Land Trust established under s 4 of the Land Rights Act, and has the function (among others) of holding title to land vested in it under the Land Rights Act. By notice published in the Commonwealth Gazette on 21 July 1978, and for the purposes of holding title to land “for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of the land concerned” (s 4(1)), the AALT holds:

All those pieces of land near Alice Springs in the Northern Territory of Australia containing an area of 530.5 hectares more or less being Northern Territory Portions 461 and 568 and being more particularly delineated on Survey Plans A 127 and Diagram 492 respectively lodged with the Surveyor-General for the Northern Territory.

88    The AALT was subsequently granted the following estates in fee simple:

(1)    by a Deed of Grant dated 30 May 1980, an estate in fee simple to Northern Territory Portions 461 and 568 excluding Lot 1 Townsite of Amoonguna and Lot 2 Townsite of Amoonguna; and

(2)    by a Deed of Grant dated 29 October 1986, estates in fee simple to Lot 1 Townsite of Amoonguna and Lot 2 Townsite of Amoonguna with the Deeds of Grant to be held in escrow by the CLC under s 10(2) of the Land Rights Act.

89    On 3 November 2008, the CLC requested certificates of title to issue for Lot 1 Townsite of Amoonguna and Lot 2 Townsite of Amoonguna, with the AALT as registered owner. Those certificates as to title were issued on the same day.

90    The AALT is constituted by members appointed by the Minister, who must be Aboriginal people living in the area of the CLC, in that area of land in which the AALT is situated, or whose names are set out in a CLC register of traditional owners: s 7. The AALT members, from 10 November 2011 to 10 November 2016, were Marie Ellis (Chair), Roseanne Ellis, Nola Ross, Michael Ellis, Shannon Ellis, Travis William and Elena Ross. From 10 November 2016, and pursuant to an instrument of appointment dated 3 November 2016, the AALT members were Phillip Alice (Chair), Jeffrey Oliver, Elaine Ross, Joe Alice, Theo Alice, Mark Alice and Marcia Alice.

91    Clearly some of the members of the Board until 10 November 2016 (including the first and second applicants in this proceeding) did not agree with the granting of the impugned leases and licence, and some of those appointed to the Board on and from 10 November 2016 had expressed support for the grant of the impugned leases and licence, such as Mr Phillip Alice who became the new Chair. However, the new Board also included persons whom the applicants allege had either not been properly consulted or had not agreed to the new leases, such as Mr Jeffrey Oliver and Ms Elaine Ross.

92    As will become apparent later in these reasons, the change in the constitution of the AALT was not without significance.

93    The AALT may only exercise its functions in relation to that land in accordance with a direction given to it by the CLC: s 5(2)(a). The power of the AALT to deal with interests in land is restricted by s 19, as set out at [28] above.

The general sequence of events

94    In the lead up to the purported grant of interests in land in October 2016, the CLC, and the community of traditional owners at Amoonguna, had before them two sets of proposals to obtain leases of Amoonguna land vested in the AALT. The two sets of proposals were, on the one hand, the ICL’s proposal to lease the whole of the Amoonguna land for 99 years. If granted, the ICL would then tender for government contracts for housing maintenance at Amoonguna, and engage with government authorities, including the CLC, in respect of the grant of subleases and licences and of utility easements.

95    On the other hand were the proposed leases to the entities I have set out at [39] above. I shall call these the “impugned leases” and include in this description the licence granted to the Council.

96    The CLC submits that the two sets of proposals were not, in substance, mutually exclusive. It submits that if the traditional owners supported the ICL proposal and the CLC adopted it through a direction under s 19A, then in effect ICL could become the head lessee to all those entities who are lessees of the currently impugned leases. Nevertheless, at the time of the sequence of events with which the proceeding is concerned – the meetings in the second half of 2016 – I am satisfied that the proposals were in substance viewed and presented as alternatives at the community meetings.

97    The desire of members of the Amoonguna community to have more control over what was happening in their community, and over housing and services delivered to the community, is not a new one.

98    In her affidavit evidence, Ms Marie Ellis set out her perspective on some of these matters, including housing issues at Amoonguna, which on the evidence arose well prior to the debate which resulted in this proceeding. Some of her views, and the narrative she gave, about housing issues were subject to objection by the CLC, which objection was upheld. However, the following evidence from Ms Ellis was admitted:

The piecemeal grant of estates and interests in Amoonguna as proposed by the CLC will prevent the implementation of the Development Plan as a whole of community, viable and sustainable development strategy.

I and other members of the Amoonguna Community have put in a lot of hard work and effort over the last nine years to try to plan the development of our community and the restoration of our capacity for self-determination since the Northern Territory government took everything over in 2007 and 2008.

That hard work included us taking court action (ACI proceedings) that is described in the Originating application.

The CLC has known of our hard work for a long time and we have had meetings with them to explain what we want.

…

I believe the leases and licences which the CLC wants to grant to the NTG, MRC and Congress will favour the grantees to the detriment of:

(a)     the self-determination,

(b)     local employment of members,

(c)     economic advancement of members,

of the Amoonguna Community.

99    This evidence informs an understanding of why Ms Ellis, her sister and other traditional owners who support them, have continued to object to the CLC’s proposals, and have continued to insist that an Amoonguna community owned and run organisation should be in charge of how community infrastructure is maintained, and services provided. At a factual level, I am satisfied there was credible, serious and longstanding opposition to the impugned lease proposals. That opposition was based on a different perspective on how a community like Amoonguna should sustain itself.

100    The ICL proposal had been pursued formally since 27 May 2013 when Mr Midena sent a letter to Mr Maurie Ryan, the Chairman of the CLC. In this letter, Mr Midena explained that the reason for the ICL proposal was that the traditional owners sought to give expression to their traditional responsibilities towards Amoonguna and to express their authority over the land. In this letter, Mr Midena stated that he represented the “Traditional Owners”. At trial, counsel for the applicants accepted the evidence was unclear about the extent to which Mr Midena represented the individual traditional owners, and whether he represented the “Traditional Owners” as a group. Suffice to say that the respondents accepted at trial that Mr Midena did represent some individual traditional owners.

101    On 25 July 2013, the CLC met with members of the ICL and traditional owners of the Amoonguna land, at the request of the CLC. The topic of the meeting was the ICL’s application for a 99-year lease over Amoonguna Land. The list of community members present was:

Present: Marie Elena Ellis (President, ICL Community Council), Roseanne Ellis (Chairperson, ICL Tribal Council), Noella Ross (ICL Councillor), James Oliver (ICL Member), Theo Alice (ICL Member), Phillip Alice (ICL Member), Marina Alice (ICL Councillor), Neville Douglas, Benita Oliver, Roxanne Oliver (ICL Member), Henry Oliver (ICL Housing Committee), Derek Hayes, Clement Alice (ICL Councillor), Faye Oliver, Phillena Oliver, Roderick Oliver (ICL Member), Valerie Oliver, Brett Burdett (ICL Member), Michael Ellis (ICL Member), Patricia Ellis (ICL Councillor), Sacara Wallace.

102    The document recording the meeting contained the following note. This is of relevance, given the applicants’ arguments in this case about who needed to be present for the consent of traditional owners “as a group” to be given:

Note:

Prior to the meeting:

•    Jeffrey Oliver gave his support for the proposed lease, to be conveyed to this meeting by Marie Ellis & others; and

•    Teresa Alice gave her support for the proposed lease, to be conveyed to this meeting by Phillip Alice & others.

103    The minutes record that the CLC representative (Mr Kelly) listed a number of concerns the CLC had about the ability of the ICL to manage the community through any lease arrangement. The points he made were:

1.    How will ICL put in for Commonwealth/Federal Funding to run the community services?

2.    Where will ICL get the funding for operational cost to run the community services similar to MacDonnell Shire?

3.    Who will pay rent and how much?

4.    Who will maintain and repairs the houses at Amoonguna?

5.    Will the TAO benefit from the rent money?

6.    How will ICL run the service at Amoonguna?

104    The minutes record Ms Marie Ellis addressing the meeting to answer these concerns. One of the statements she is recorded as making is the following:

Explained to Ross, Oliver and Alice families that we had put in for a lease under section 19(4A) of the Land Rights Act 1976, as we, the TAOs of Amoonguna, want to show the government that we can be successful again in self-determination, in community control and for employment and living - just as we did before through Amoonguna Community Inc.

105    Ms Ellis explained that Mr Midena was the lawyer they had been working with for five years. It was not in dispute in this proceeding that Ms Ellis was frequently at the forefront of the move to place control of the community in the hands of community members through a corporate vehicle, currently ICL.

106    The minutes of the meeting state that:

All families present confirmed their support for the application by ICL for the 99 year lease of Amoonguna – and all agreed for the lease to be granted.

107    On 8 October 2013, a letter was sent by a lawyer from the CLC, Ms Elly Patira, to Mr Midena noting the CLC’s view that at the meeting of 25 July 2013, “the CLC was unable to gain instructions from traditional owners in respect of the Lease Application”.

108    The evidence did not explain why, in the face of the minutes as I have set them out, the CLC took this view. Matters appear then to not to have substantially progressed until some correspondence from Mr Midena in early 2014.

109    In January 2014, Mr Midena sent a letter to CLC noting that it appeared the Northern Territory government had reached an agreement with the CLC in relation to the management of Amoonguna housing. Mr Midena sought an undertaking that CLC would not grant any estate or interest in Amoonguna without prior notification to him (on behalf of his clients, who included Ms Marie Ellis). I note, as I have elsewhere, that in Mr Midena’s correspondence it was often unclear precisely on behalf of which traditional owners at Amoonguna Mr Midena had instructions to act, aside from Ms Marie Ellis. It is clear he acted on behalf of ICL but which individuals within ICL were instructing him other than Ms Ellis is also unclear.

110    The CLC responded on 21 January 2014. In this letter, the CLC reiterated its view that no instructions regarding the ICL lease proposal had been received following the 25 July 2013 meeting. The CLC stated:

Finally, we are particularly concerned by your assertion that traditional owners approved and consented to the grant of a lease to ICL at the 25 July 2013 meeting. This claim is incorrect and in our view disingenuous.

111    However, on 7 April 2014, the CLC sent an email to Mr Midena saying that it proposed to hold a meeting in Amoonguna on 16 April 2014, and that the meeting would consider ICL’s proposed lease, as well as the Commonwealth lease application in respect of community housing and the Northern Territory application to lease infrastructure. There was no reference by the CLC to the non-Northern Territory government leases, however it would appear that by at least April 2014, two sets of lease proposals had emerged (that is, the ICL proposal and the Northern Territory government proposal).

112    Further correspondence ensued, in which Mr Midena questioned the role of the CLC in proactively approaching (as he suggested was the case) the Northern Territory government about these leases, and in which the CLC noted the longstanding desire of the Northern Territory government to secure tenure over existing infrastructure in Aboriginal communities. It is a feature of this proceeding that much time and cost and effort seems to have gone into correspondence but there is little evidence of the parties actually talking to one another, and in particular there is little evidence of the CLC being especially proactive in taking up face-to-face discussion with Mr Midena, and (more centrally), with his clients.

113    The CLC’s scepticism about Mr Midena’s role, including the number of traditional owner views his correspondence could be said to represent, was evident in correspondence from the CLC on 29 April 2014, after the community meeting in Amoonguna. The CLC informed Mr Midena and his clients (at least, ICL and Ms Marie Ellis) that traditional owners at that meeting had instructed the CLC to postpone decision-making on the non-ICL lease proposals until a decision was reached in respect of the ICL lease proposal.

114    Then, by a letter about a month later (on 26 May 2014), the CLC informed Mr Midena and his clients (at least, ICL and Ms Marie Ellis) that a meeting was held with the traditional owners who did not consent to the ICL lease proposal, expressing the concerns of what the CLC described as the “non-consenting TOs”. The concerns set out by the CLC were as follows:

The non-consenting TOs expressed initial concerns:

•    about whether ICL has Commonwealth and NT Government support for the Lease Proposal, particularly with respect to alternative housing management, alternative local government service provision and funding. The non-consenting TOs request that approaches be made to the appropriate Commonwealth and NT Ministers as soon as possible to confirm their support. The relevant TOs further instruct that they will not consent to the Lease Proposal without this confirmation of support and assurances from Government in relation to funding.

•    that the decision-making structure proposed under the ICL Constitution would significantly alter the current manner in which decision-making in respect of land is exercised. The non-consenting TOs are particularly concerned that there is no guarantee under ICL’s Constitution that each of the TO family groups will be represented on the Tribal and Community Councils. They are also concerned that, even to the extent that ICL’s decision-making process is amended to ensure family representation, some individuals will necessarily be removed from direct involvement in decision-making.

•    about the lengthy term of the Proposed Lease, particularly given that TOs may be unhappy with the manner in which ICL administers the land the subject of the Proposed Lease. The non-consenting TOs request a review of the proposed term and the inclusion of a mechanism for terminating the Proposed Lease where certain thresholds are not met by ICL.

•    about the status of non-TO residents in Amoonguna, and seek assurances in the Proposed Lease that non-TO residents will not be asked to vacate their current premises.

•    with the legal fees that will be accrued by ICL is administering the Proposed Lease (and subleases). Non-consenting TOs request further details about the Schedule of Costs applicable.

115    The CLC sought responses from Mr Midena, on behalf of ICL. There is evidence the CLC sent follow up correspondence in August 2014 and again in October 2014 trying to get a response to its concerns. It does not appear that any response was given.

116    And then, contrary to its attitude to this point, in a way which is really not explained in the evidence at all, on 7 October 2014, Ms Patira on behalf of the CLC sent the following email to Mr Midena:

…I confirm that the CLC has now received instructions from traditional Aboriginal owners to consent to your client’s lease application, subject to several amendments being made to the proposed lease. Could I trouble you to now forward an electronic draft of the lease (unlocked for editing), so that I can mark-up the necessary amendments for your consideration.

(Emphasis added.)

117    On 27 October 2014, an email was sent from Ms Patira to Mr Midena stating that the ICL lease would be put to the next CLC Executive meeting on 9 December 2014 and that in the meantime, Ms Patira would send to Mr Midena her comments on the draft lease.

118    It appears that further differences then arose between the CLC and the applicants as to the traditional owners’ consent to the ICL proposal. The source and contents of those differences are not material to the present application, and are not in any event the subject of detailed evidence in this proceeding. On 17 December 2014, Ms Patira sent an email to Ms Marie Ellis and Mr Midena which, while noting that the CLC accepted that the traditional owners at a meeting in October 2014 consented to the ICL proposed lease, subject to amendments, police had contacted CLC “with concerns that conflict has arisen in Amoonguna Community over the past two months, and that this conflict relates to housing.”

119    More time passed. It was now more than 18 months after the first ICL lease proposal had been made. On 28 January 2015 Ms Patira informed Mr Midena by email that:

…the CLC intends to conduct community consultations to ensure that community members have the opportunity to express their views on your client’s lease. Given reports we have received from police and community organizations with respect to conflict arising around your client’s proposed management of Amoonguna township, we consider it important that any such consultations are conducted in a neutral and non-threatening manner.

120    I set these matters out without making any findings whether persons (unknown on the evidence) at the CLC, through Ms Patira, had a reasonable basis to imply, as this email did, that the conflict arose because of ICL’s “proposed management of Amoonguna township”.

121    On 6 February 2015, Ms Patira sent an email to Mr Midena noting that the CLC conducted consultations with traditional owners in 2014 with respect to lease applications submitted by the Northern Territory government. She stated that:

The CLC received instructions from traditional owners to enter into that lease [that is, the Northern Territory lease].

However, before progressing these applications, I note that your client’s whole-of-community Section 19 Lease presents a “competing claim” in respect to these lots. Accordingly, could I trouble you to confirm whether your client wishes to request a suspension to the progression of these leases, until such time as your client’s lease proposal has been determined.

122    Mr Midena responded on the same day, apparently an hour later, according to the email time stamp. Mr Midena expressed “considerable concern”, stating:

My several clients, including traditional owners and residents, have repeatedly informed me that they have repeatedly refused to consent to the grant of any leases being granted to the NTG over any land in Amoonguna. My letter to the CLC of 28/04/2014, copy attached, is particularly relevant in this regard; and there is other relevant communications, none of which suggest that any leasing proposals from the NTG are under consideration.

In fact, in accordance with advice from my clients, by email of 07/10/2014 you confirmed that the CLC had received instructions from traditional Aboriginal owners to consent to ICL’s lease application. You then advised that the consent was subject to several amendments being made to the proposed lease, details of which we are still awaiting, but it cannot be suggested that the exclusion of land by way of prior grants to the NTG amounts to an ‘amendment’ of the lease.

Any interests to be granted to NTG would be granted by way of sub-leases or licences by ICL.

Accordingly, with respect to your query, I can (at least) confirm that ICL – and my other clients – wish the CLC not to proceed to grant any leases or other interests in Amoonguna to any person other than ICL.

Could you please confirm that you will not be proceeding to process any applications for leases or licences in Amoonguna from the NTG or any other person, apart from ICL?

Also, could you please provide details of the amendments you suggest be made to ICL’s proposed lease as a matter of some priority?

123    Based on the former position taken by the CLC in its correspondence, the reaction of Mr Midena and his clients is understandable. Nevertheless, despite apparently being in negotiation with the Northern Territory, it appears that the CLC also continued negotiations regarding the draft ICL lease. Ms Patira sent the CLC’s comments on the ICL lease to Mr Midena on 13 February 2015, however her email also stated:

Traditional owners consented to your client’s lease, subject to carving out three lots, which Traditional Owners wish to lease directly to the Northern Territory Government…

124    It is unclear whether the three lots Ms Patira refers to are the lots eventually leased to the Northern Territory or IES, or whether they are other lots. It is also unclear by what kind of process traditional owner consent was given to this “carve out”.

125    On 24 February 2015, Mr Midena then wrote to Ms Patira, seeking to clarify his clients’ position. Mr Midena stated that he writes on the instructions of his clients, who he says are “the traditional Aboriginal owners of Amoonguna and ICL”.

126    Again, when Mr Midena uses the term “clients”, it is unclear precisely to whom he refers. Clearly Ms Marie Ellis was one such client, as Mr Midena refers to her by name in some of his correspondence. It is also clear that ICL was one of Mr Midena’s clients, because he also refers expressly to that corporation in correspondence by that descriptor. However, precisely how many other members of the Amoonguna community, and how many other “traditional Aboriginal owners” of Amoonguna land (as that term is used by the Land Rights Act) were, at the time of this correspondence, Mr Midena’s clients could have been clarified but was not, in circumstances I will explain briefly.

127    There was an exhibit to Mr Midena’s first affidavit – Exh BIM-3 – which is entitled “confirmation of instructions to Midena & Co”, dated June 2014, and which does indicate who Mr Midena represented, including, for example, Jeffrey Oliver, Elaine Ross and Phillip Alice.

128    The CLC objected to large parts of Mr Midena’s affidavits, including a part where he exhibited BIM-3. I overruled this objection, for reasons I gave at the time, noting this material was no more than background and contextual material, which I considered necessary to understanding what occurred between the parties in 2016. However, Exh BIM-3 was one of many exhibits to Mr Midena’s affidavit that was ultimately not read. There was a great deal of additional correspondence and material initially sought to be tendered which counsel for the applicants then sought to reduce. It may be that in engaging in that process, which was entirely proper, BIM-3 was excluded when it should not have been.

129    The lack of clarity around this evidence may be more of a matter of impression than critical to the disposition of the applicants’ claims. That is because on any view Ms Marie Ellis and Ms Roseanne Ellis, for whom Mr Midena clearly has acted continuously, were recognised as traditional owners, whose lack of consent, or opposition, to the impugned leases was communicated to the CLC.

130    In his 24 February 2015 letter, Mr Midena stated:

My clients have confirmed that they have not consented to;

a)    any grant to the NT Government (or anyone else) of leases (or other interests) in respect of the sewerage treatment pond, the sewer pump station or the school at Amoonguna; nor

b)    any grant of long-term residential rights in “Aboriginal persons”, based simply on prior occupation; nor

c)    any grant of leases (or other interests) in the land held in trust by the Amoonguna Aboriginal Land Trust to any other entities.

(Footnote omitted.)

131    Mr Midena went on in his letter to explain his clients’ understanding of a meeting in November 2014, where, Mr Midena says, some confusion arose as to the proposed ICL lease and the proposed Northern Territory lease. Mr Midena summarised that:

To the extent that you understood that my clients did consent to the (direct) grant by the AALT of leases [to] the NT Government, I advise that they no longer so consent and any such consent has been withdrawn and any instructions to the CLC to enter such leases has been withdrawn.

132    The remainder of the letter then dealt with the position of Mr Midena’s clients and the CLC in relation to the terms of the proposed ICL lease.

133    At the least, then, by 24 February 2015 the CLC (certainly, those advising the Board and its committees, and communicating on their behalf), were on notice that within the group of traditional owners for Amoonguna land there was opposition to the grant of the impugned leases, and some traditional owners did not consent to their grant.

134    On 5 May 2015, a letter was sent by Mr Daniel Kelly, the legal practice manager of the CLC, to Mr Midena, responding to Mr Midena’s 24 February 2015 letter. Mr Kelly indicated that the CLC’s instructions following the meeting with traditional owners on 6 October 2014 were that the traditional owners agreed to grant:

1.     a lease to the Northern Territory Government over the Amoonguna school (lot 88), and the sewage pumps and ponds (lots 95, 189 and 190) (the “NTG Infrastructure Leases”); and

2.     a lease over the remainder of Amoonguna Aboriginal Land Trust to Imwernkwernhe Community Limited (ACN 161 185 100) (“ICN”), subject to amendment to:

a.     the ICL constitution, primarily to secure the representation of all traditional Aboriginal owner family groups by including reserved positions in the Tribal council; and

b.     the proposed lease, principally to protect the informal tenancies of the current Aboriginal residents of Amoonguna, in accordance with the assurances made by ICL Tribal Council members at the meeting, and also to entrench decision-making provisions under the ICL constitution, and such other amendments as required.

135    It is unclear on the evidence to what meeting this correspondence refers. Ms Patira’s earlier correspondence to Mr Midena in October and December 2014 and February 2015 dealt with a meeting of traditional owners prior to 7 October 2014 and it appears this is the meeting to which Mr Kelly refers.

136    Thus, as at February 2015, aside from the school and the sewerage infrastructure, the CLC was suggesting to the applicants, through Mr Midena, that the lease to ICL had been approved by traditional owners on 6 October 2014.

137    Mr Kelly then stated in the letter that:

…several ICL Tribal Council members are of the view that such instructions were not given, or were not understood by the meeting, and they expressed this view to our Executive meeting on 18 March 2015. We also note your advice that even if given, such consent is now withdrawn by those individual traditional Aboriginal owners which you represent.

138    It is not clear who these “ICL Tribal Council members” were, although counsel for the applicants at trial submitted that this included, at least, Ms Marie Ellis and Ms Roseanne Ellis, the first and second applicants respectively. In other words, the CLC was identifying that some traditional owners had changed their minds between October 2014 and March 2015, including Mr Midena’s clients.

139    Ms Marie Ellis’ own evidence is not consistent with the proposition that she and her sister were members of the Tribal Council. According to her affidavit of 7 April 2017, she and Ms Roseanne Ellis were not members of the Tribal Council, they were only members of the “Community Council”. On her evidence, the Tribal Council consisted of senior traditional owners. Ms Marie Ellis appeared to accept she was not a “senior” traditional owner. As at 7 April 2017, on Ms Marie Ellis’ evidence, the Tribal Council comprised:

    Clement Alice

    Katherine Alice

    Marcia Alice

    Marina Alice

    Theo Alice

    Theresa Alice

    Edward Neal (Ross)

    Maree Oliver

    Rosalie Riley

    Elaine Ross (Hayes)

140    Mr Jeffrey Oliver was not a member of the Tribal Council, but as a senior traditional owner, Ms Marie Ellis deposed he was to be invited to meetings.

141    Mr Kelly also acknowledged Mr Midena’s indication that even if consent had been given, it was now withdrawn by Mr Midena’s clients, although as the text of the letter demonstrates, consent was withdrawn in relation to the Northern Territory leases, not the leases to ICL. Nevertheless, Mr Kelly stated that the CLC would not act on the purported instructions received in October 2014, but would seek further instructions.

142    Mr Kelly then set out his responses to various allegations in Mr Midena’s letter of 24 February 2015. Relevantly, Mr Kelly indicated that the CLC did not accept that the traditional Aboriginal owners of Amoonguna “as a group” had adopted the decision-making processes of the ICL. Mr Kelly indicated the CLC’s view that “at times throughout this process, there has been significant resistance among traditional Aboriginal owners to the ICL lease application.” Mr Kelly stated that:

To be frank, your inability to acknowledge this suggests to us you are taking instructions from a very narrow group of traditional Aboriginal owners, which is then represented as the comprehensive view of the group.

143    Given the composition of the ICL Tribal Council, it seems to me that is a difficult proposition for Mr Kelly to sustain. Mr Midena was not cross-examined at all. It was never put to him or any other witness (such as Ms Marie Ellis) that the members of the ICL Tribal Council did not give Mr Midena the instructions he set out in this correspondence.

144    Nevertheless, Mr Kelly requested that Mr Midena identify the particular traditional Aboriginal owners whom he represented. It does not appear from the evidence that Mr Midena ever responded to that request.

145    It appears that support for the ICL lease by at least one traditional owner did change over time. That can be found as a fact to be the situation with Mr Phillip Alice. As I have noted, his evidence was that he remained a member of the ICL. He was identified by Mr Midena, in a signed petition dated July 2013 annexed to Mr Midena’s first affidavit, as having given consent to the ICL lease and there was no cross-examination of Mr Midena, nor any submissions, to suggest this did not reflect the facts at the time Mr Midena made those statements. In his affidavit in this proceeding, Mr Alice deposed that he changed his mind about the ICL lease. He was not cross-examined about this, nor did he give any details of when he changed his mind or why, save to say in his affidavit that:

In the early days of ICL, me and other members of my family had been supporters of ICL, but later I believed that Marie Ellis, Roseanne Ellis and Lynette Ellis were not listening to the senior traditional owners and what they wanted.

146    There is then something of a gap in the chronology, and I accept counsel for the applicants’ submission that discussions about the ICL lease, and the impugned lease proposals, were suspended for some time, or at least that no further material negotiations or events occurred.

147    By the middle of 2016, the lease proposals seem to have been revived. In June, July and September 2016 a series of meetings occurred, culminating in the key meeting on 12 October 2016 at the Chifley Hotel in Alice Springs. The three earlier meetings were conducted by the CLC as “information meetings” about the competing lease proposals. Not everyone who attended the October 2016 meeting had attended the other meetings, and not everyone who had attended earlier meetings was at the October 2016 meeting. This statement applies both to traditional owners and also to CLC staff. For example, Ms Wilmot, the CLC anthropologist, was at the October meeting but not the September one. Ms Elaine Ross, a traditional owner and a member of the ICL Tribal Council, was at the September 2016 meeting but did not attend the October 2016 one.

148    What happened at the 12 October 2016 meeting was the subject of considerable evidence. Some of the debates about what occurred, and some of the details about who said what, are ultimately not material to the findings the Court must make. Where detailed findings need to be made about who said what, or who did what, I make those findings at [267]-[279] below. It suffices here to give a general description of what occurred.

149    The meeting was referred to by the CLC in its notices and minutes as a “consultation meeting”, in contrast to the earlier ones which were described as “information meetings”. It was attended by a number of key CLC employees, including Mr Gosford and Ms Wilmot. Ms Ellis’ evidence was that the meeting was attended by a number of traditional Aboriginal owners including Ms Ellis herself, Ms Roseanne Ellis, Mr Phillip Alice, Mr Theo Alice, Ms Lynette Ellis (former President of the ICL), Mr Clement Alice, Mr Mark Alice, Ms Marcia Alice and Mr Joseph Alice. According to Ms Wilmot, a number of these individuals are among the most senior traditional owners (namely Mr Theo Alice, Mr Mark Alice and Mr Joseph Alice). Ms Wilmot’s evidence indicates she believed there were 19 people who attended the meeting who fell into the category of “traditional owner”, although Ms Wilmot includes in this number members of the Tilmouth family, about whom there is at least some degree of debate in terms of their status as traditional owners: see [192]-[193] below.

150    No CLC Committee members were in attendance.

151    Two traditional owners who were not at the 12 October 2016 meeting were Ms Elaine Ross and Mr Jeffrey Oliver. Both these individuals were identified as “senior traditional owners” and Ms Ross was also a member of the ICL Tribal Council. Although Mr Oliver was not a member of the Tribal Council, as a senior traditional owner, Ms Marie Ellis deposes (and I accept) that he is to be invited to their meetings. Their absence is one of the matters Ms Ellis made a point of at the meeting, and also one of the matters the applicants rely on to challenge the CLC’s formation of satisfaction that traditional owners “as a group” consented to the grant of the impugned leases.

152    It is agreed between the applicants and the CLC that, according to “Arnpirrentye” (or Arrernte traditional law), Mr Oliver is the senior “kwertengerle” for Amoonguna land. It is also agreed that Ms Ross is an “apmereke-artweye” for Amoonguna land, however the applicants claim that Ms Ross is the senior apmereke-artweye, a claim disputed by the CLC, including by Ms Wilmot. In English usage, “kwertengerle” roughly translates to “manager” while “apmereke-artweye” roughly translates to “owner”, although both the applicants and the CLC agree that the English translations are only approximate. Ms Marie Ellis gave evidence, which I accept, that together, the apmereke-artweye and the kwertengerle have primary responsibility for looking after the Amoonguna land and authorising what occurs on that land. There are some differences in the evidence as to how the apmereke-artweye and the kwertengerle make decisions, particularly as to the extent to which the senior apmereke-artweye and the senior kwertengerle are required to be consulted for decision-making, and the role of senior apmereke-artweye men and women. The applicants and the CLC agree Mr Oliver’s consent as the senior kwertengerle was required for traditional decision-making, however the parties disagree as to whether Ms Ross’ consent was required. Ms Wilmot’s affidavit evidence was:

Jeffrey Oliver is the Antulye estate group key senior kwertengerle for matters affecting Amoonguna. His mother’s father was George Ross Penangke and he has acquired the relevant cultural knowledge to hold this position since his older brother passed away some years ago. There are a number of other members of the Antulye estate group who hold kwertengerle positions. Of the same generation, Edward Neal also holds a mother’s father connection to George Ross’ brother. There are also a large number of kwertengerle in the next generation, including Marie Ellis and Roseanne Ellis.

The traditional decision-making process for these Aboriginal people in matters affecting country is primarily one of consultation amongst the senior apmereke-artweye men. There is no requirement that all senior apmereke-artweye men must be consulted. There is no requirement that all senior apmereke-artweye men must be present at the same time. This is not to say that it is only the senior men who make the decision. There are women who are traditional Aboriginal owners. However, no decision can be made if the senior men are not involved. There is no requirement for unanimity, but usually a consensus is arrived at for a decision to be made.

…

In my twelve years experience with Antulye estate group decision making processes, I have not been told by members of the groups that Elaine Ross is regarded as a key apmereke-artweye member of the group, or the senior one since the passing of the key senior apmereke-atweye Oswald Alice in 2010, I have been told by members of the group that Theo Alice, Mark Alice and Joe Alice are now key senior apmereke-artweye.

…

As stated above, Elaine Ross is an apmereke-artweye for Antulye estate group which includes Amoonguna land, but she is not the senior apmereke-artweye.

(Emphasis in original.)

153    It was at this meeting that the CLC contends the traditional Aboriginal owners made a decision consenting, as a group, to the CLC directing the AALT to grant the leases to the Northern Territory, the Council, the Congress and the IES. The CLC relies on the evidence of Mr Phillip Alice, Mr Gosford and Ms Wilmot, all of whom were called as witnesses in this proceeding.

154    There are no minutes of this meeting, nor of the three before it. In evidence were documents handed out by the CLC at the meeting. Mr Gosford’s file note of the September and October 2016 meetings and Ms Wilmot’s memorandum to Mr Gosford after the October 2016 meeting are in evidence. There is also the summary prepared for the CLC Committee by, it appears, Mr Gosford. The applicants sought to tender a transcript of the meeting, prepared from a recording of it made by Ms Marie Ellis, then transcribed by Mr Midena. They also sought to tender the recording itself. Ultimately the respondents did not object to the tender of the transcript. In light of that position, I rejected the tender of the recording under s 135 of the Evidence Act 1995 (Cth).

155    It is not clear from the evidence when the proposed leases and licence to entities other than the Northern Territory (namely, the Council, Congress and IES) emerged. It appears that at some stage prior to the Chifley Hotel meeting, the proposed leases expanded from only those leases to the Northern Territory government, to leases and a licence including these three additional entities.

156    The applicants contend that Mr Oliver and Ms Ross were required to be present at any meeting in which decisions about interest in the Amoonguna land were to be made. The CLC contends that Mr Phillip Alice, who is an apmereke-artweye (but not a senior apmereke-artweye), had received the consent of both Mr Oliver and Ms Ross, and provided their consent in the meeting on their behalf. Mr Gosford also indicated at the meeting that he had spoken to Mr Oliver and that Mr Oliver had conveyed to him that he would agree with any decision made at the Chifley Hotel meeting. The applicants dispute this, and Ms Marie Ellis made it known at the meeting that she thought Mr Oliver and Ms Ross were required to be at the meeting. At trial, the applicants adduced evidence from both Mr Oliver and Ms Ross who claim they did not provide their consent to Mr Alice. I return to this later in these reasons.

157    Following the Chifley Hotel meeting, reports were prepared for the CLC Committee. These reports were prepared by Mr Gosford and Ms Stephanie Campbell, another CLC lawyer who was not present at the Chifley Hotel meeting. In summary, the papers advised the Committee that the CLC had consulted with traditional Aboriginal owners and that consent was given by them to each of the proposed grants. The nature and extent of these reports is material to this proceeding, and indeed, my reasoning turns on what these reports say, and what they do not, as well as the findings I make about what happened at the meeting of the CLC Committee. It is therefore necessary to deal with these matters in some detail, and I do this below at [311]-[332].

158    At its meeting on 19 October 2016, the CLC Committee gave a direction to the AALT pursuant to s 19(5) of the Land Rights Act to enter into the impugned leases. Amoonguna was not the only community about which the CLC Committee made decisions that day directing the disposition of interests in community land. The Committee gave directions to a number of other Land Trusts as well.

159    The Committee also gave a direction to the Chairman and an executive member of the CLC to affix the common seal of the AALT to each of those documents.

160    On the same day, 19 October 2016, Ms Jasmin Rucioch, an employee of the CLC (but not a member of its Board or of the Committee) affixed the common seals of both the CLC and the AALT to the leases and licence.

161    Subsequently, several weeks’ later on 11 November 2016, members of the AALT each completed a written authorisation for the affixing of the AALT’s common seal to those leases and licence. The proposed leases and licence were then given to the Northern Territory, Council, Congress and IES. The Council and Congress executed their respective agreements and delivered them to the CLC, however neither the Northern Territory nor IES ever executed their respective agreements.

162    This proceeding was then commenced by the applicants, with an ex parte interlocutory application filed on 23 November 2016 for orders suspending the operation of the CLC’s directions to the AALT. That ex parte application was resolved without a hearing, and the proceeding was then regularly issued, with the undertakings to which I have referred at [44] above preserving the status quo pending the Court’s decision.

The grounds of review and the competing arguments

163    I approach the grounds of review without distinguishing between the two sources of jurisdiction invoked by the applicants. The nature of the errors alleged under both jurisdictions is essentially the same. Any differences between the two sources of jurisdiction arise principally in relation to the relief which may be available.

Ground 1: CLC’s satisfaction of consent of traditional owners

164    Ground 1 is expressed as follows:

The Applicants contend that the Executive Committee did not lawfully form a state of satisfaction under section 19(5)(a) of the ALRA that the traditional Aboriginal owners of the Amoonguna Land understood the nature and purpose of each of the proposed grants and, as a group, consented to them, and thereby the CLC Decisions each involved an error of law of one or more of the kinds described in section 5(1)(b), (d), (e), (f) and (g) of the ADJR Act, or were otherwise contrary to law within the meaning of section 5(1)(j) of the ADJR Act, or were otherwise affected by jurisdictional error so as to attract the jurisdiction of the Court under section 39B(1A)(c) of the Judiciary Act.

Particulars

i.    The Executive Committee was required to, but did not, lawfully consider and identify who the traditional Aboriginal owners of the Amoonguna Land were before making the CLC Decisions.

ii.    The Executive Committee was required to, but did not, lawfully consider and identify what process of decision-making was applicable in determining whether or not the traditional Aboriginal owners of the Amoonguna Land “as a group” consented to the proposed grants before making the CLC Decisions.

iii.    The Executive Committee was required to, but did not, lawfully consider and identify what (if any) process of decision-making was in fact adopted by the traditional Aboriginal owners of the Amoonguna Land with respect to whether or not to consent to the proposed grants before making the CLC Decisions.

iv.    Further or alternatively, insofar as the Executive Committee did purport to consider the matters identified in particulars i to iii above, it did so in accordance with a process that effectively but unlawfully delegated that process of consideration to a CLC officer (or officers) who conducted a meeting (or meetings) with some traditional Aboriginal owners (including a meeting at the Chifley Hotel in Alice Springs in the Northern Territory on 12 October 2016) but who was (or were not) a member (or members) of the CLC

165    The applicants characterise the CLC’s satisfaction about the consent of traditional owners as a group as a precondition to a valid direction under s 19(5).

166    The applicants do not challenge the delegation of the decision-making function under s 19(5) of the Land Rights Act by the CLC Board to the CLC Committee. However, the applicants submit that some level of fact finding about traditional owner consent had to be done by the CLC Committee itself. Information needed to be accurately conveyed to the Committee, and it had to be given enough information to form the requisite state of satisfaction for itself. The applicants accept there is nothing legally impermissible with a summary being conveyed to a decision-maker, so long as it is accurate and complete. By analogy with ministerial decision-making, the applicants accept that a “brief” or “briefing note” could be prepared for the CLC Committee, but that “brief” must have the characteristics of accuracy, detail and completeness for which the applicants contend.

167    The applicants submit that in order for the CLC lawfully to form a positive state of satisfaction in the present circumstances, the CLC Committee was required to at least identify who the traditional Aboriginal owners were, and to consider the process by which their consent was obtained. The applicants submit this did not occur.

168    Grounds 1 and 2 contend that the CLC could not form the requisite state of satisfaction for two distinct reasons. Under ground 1, that is because the CLC did not have the information it required: who the traditional owners were, which of them were at the October 2016 meeting, what the decision-making process was, and what views were expressed. In contrast, ground 2 (reproduced at [176] below) appears to challenge the absence of any probative basis on which the decision could have been made, even if the CLC Committee attempted to do so. It would appear that the second ground expresses a consequence of the situation on which the first ground is premised.

169    The CLC submits that, provided the material before the decision-maker (here, the CLC Committee) rose above a “mere assertion of a conclusion of satisfaction”, then there was enough material on which the Committee could form a state of satisfaction. Expressly by s 27(1)(b), a Land Council (and its delegate) was entitled to obtain advice and assistance from persons who are “expert in any matter with which the Council is concerned”. The CLC Committee was entitled to rely on the advice of Ms Wilmot, and of Mr Gosford as one of the CLC’s lawyers.

170    The CLC relies on the decision of Kenny J in Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2014] FCA 25; 220 FCR 202. It submits that in Gondarra, the Court held that the Land Council having made an express statement to the Minister of its satisfaction under s 23(3), in terms which involved more than “mere assertion”, it was open to the Minister to act on the statement, and to similarly be so satisfied, under s 27(4) of the Land Rights Act.

171    The CLC says that on the facts, the Court can be satisfied the material was circulated before the meeting and that it can be inferred that the CLC Committee members had an opportunity to read the papers, including Mr Gosford’s report. It submits the Campbell meeting paper contained more than the applicants have suggested. The circulation of the papers beforehand is said to meet the applicants’ submissions about what inferences can be drawn from the Minutes of the meeting in terms of how the decision-making proceeded.

172    The CLC says the paper circulated by Ms Campbell was sufficient in itself, and contends that the contents of that paper are more substantive than the applicants alleges. In the alternative, the CLC submits the information in the paper from Mr Gosford, also circulated to the Committee, contained more than sufficient information on which the Committee could form the requisite state of satisfaction.

Ground 2: lack of evidence to form satisfaction of consent of traditional owners

173    Ground 2 is expressed as follows:

Further or alternatively, the Applicants contend that the Executive Committee’s purported state of satisfaction that the traditional Aboriginal owners of the Amoonguna Land understood the nature and purpose of each of the proposed grants and, as a group, consented to them was not open on the information before it, and thereby the CLC Decisions each involved an error of law of one or more of the kinds described in section 5(1)(b), (d), (e), (f) and (g) of the ADJR Act, or were otherwise contrary to law within the meaning of section 5(1)(j) of the ADJR Act, or were otherwise affected by jurisdictional error so as to attract the jurisdiction of the Court under section 39B(1A)(c) of the Judiciary Act.

Particulars

i.    The Executive Committee had before it information to the effect that, prior to a meeting conducted at the Chifley Hotel on 12 October 2016, no decision had been made by the traditional Aboriginal owners of the Amoonguna Land to consent to the grants.

ii.    The Executive Committee had before it information to the effect that only some of the traditional Aboriginal owners of the Amoonguna Land were present at the Chifley Hotel meeting.

iii.    The Executive Committee had no information before it to the effect that the traditional Aboriginal owners of the Amoonguna Land who were absent from the Chifley Hotel meeting consented, “as a group” together with the traditional Aboriginal owners who were present at the Chifley Hotel meeting, to the grants.

174    As I have noted, ground 2 appears to identify a consequence of what is alleged in ground 1. In other words, the fact (on the applicants’ case) that the CLC Committee did not have the necessary material before it, meant that it lacked any sufficient probative evidence on which to form the necessary state of satisfaction before it could lawfully give the direction.

175    In particular this ground appears to focus on the information available to the CLC Committee, from the reports to it by Mr Gosford, that there was opposition from some traditional owners to the impugned lease proposals, and that some key traditional owners were not present at the 12 October 2016 meeting.

176    The CLC responds to this ground with the submission that legal satisfaction under the Land Rights Act does not require unanimity of all traditional Aboriginal owners, because the statute focuses on consent given “as a group”. The CLC submits s 19(5) should be construed taking into account that by its composition, expertise and functions, a Land Council is a specialised and representative body, which is well suited to assessing whether there is consent of traditional owners “as a group”. It further submits that there may be legitimate differences of opinion as to what approaches might be taken, but since the legal criterion is satisfaction, not objective existence, within the bounds of what is a legally reasonable, fair and rational approach, it is a matter for the Land Council to determine consent “as a group”.

Ground 3: denial of procedural fairness

177    Ground 3 is expressed as follows:

Further or alternatively, the Applicants contend that a breach of the rules of natural justice occurred in connection with the making of the CLC Decisions within the meaning of section 5(1)(a) of the ADJR Act, the CLC Decisions each involved an error of the kind described in section 5(1)(d) of the ADJR Act, and the CLC Decisions were also affected by jurisdictional error so as to attract the jurisdiction of the Court under section 39B(1A)(c) of the Judiciary Act.

Particulars

i.    As noted above, the Chifley Hotel meeting was conducted by a CLC officer (or officers) who were not members of the CLC.

ii.    Following the Chifley Hotel meeting, CLC officer Bob Gosford prepared an “Information Paper” for consideration by the CLC.

iii.    Insofar as the “Information Paper” advised the Executive Committee that, at the Chifley Hotel meeting, traditional Aboriginal owners consented to the proposed grants, that advice was inaccurate or misleading.

iv.    At least some traditional Aboriginal owners who were present at the Chifley Hotel meeting indicated that they did not consent to the proposed grants. Some traditional Aboriginal owners who were present at the Chifley hotel meeting made claims about what the applicable traditional decision-making process was, and in particular made claims to the effect that certain other traditional Aboriginal owners (who were not present at the meeting) needed to be present at any meeting at which a decision to consent to the grants was to be made, and need to be involved in the decision-making process. Other traditional Aboriginal owners who were present at the Chifley Hotel meeting gave no indication that they consented to the proposed grants. Other traditional Aboriginal owners were absent from the Chifley Hotel meeting, and did not otherwise indicate their consent (singly or as part of a “group”) to the proposed grants.

v.     Accordingly, the process by which the Executive Committee sought to “hear” from the traditional Aboriginal owners of the Amoonguna Land, for the purpose of forming a state of satisfaction as to whether the traditional Aboriginal owners as a group consented to the groups, miscarried. The responses (or non-responses) provided by various traditional Aboriginal owners to the proposed grants in accordance with the hearing process established by the CLC or the Executive Committee were not accurately or comprehensively conveyed to the decision-maker vested with the function of forming the requisite state of satisfaction.

178    The applicants submit procedural fairness is owed to each individual person who falls within the terms of s 71(1), and has the rights conferred by that provision. That is because any direction to grant an interest in Aboriginal land affects not only the rights of all persons who enjoy those rights under s 71(1), but also affects their interests in that land. The fact that an individual holds an interest in land in common with other persons identified as traditional owners of the same land does not mean the individual’s legal interests in that land are not affected by a direction which results in the creation of a new and separate legal interest in that land in a third party. To the contrary, the applicants submit they clearly are.

179    The CLC made a submission, somewhat faintly, that s 19(5) may not be conditioned with any obligations of procedural fairness at all. For the reasons I set out at [378]-[379] below, I doubt that is correct, but it need not be finally determined in this proceeding because of the view I have taken on the applicants’ ground 3, even on the premises most favourable to them.

180    More particularly, the CLC denies that s 19(5) is conditioned by any obligation of procedural fairness to individual traditional owners. It submits the Land Rights Act is concerned with group or communal rights and interest, and group or communal title to land. While it accepts that the rights conferred by s 71(1) are also conferred on traditional owners as individuals, it submits this does not necessarily mean that there are individual procedural fairness entitlements in relation to decision-making under s 19 of the Land Rights Act. Further, it submits that in the circumstances, the impugned leases had no legal effect on the s 71(1) rights (or interests) of traditional owners of Amoonguna land: the land was occupied in any event, and had previously been used for the purposes for which it would be used under the impugned leases. In other words, the CLC submits in a practical sense there was no alteration to, or diminution in, the interests held by individual traditional owners in the Aboriginal land the subject of the impugned leases: the land simply continued to be used in the way it was currently being used.

181    As the CLC points out in its written submissions, the applicants’ argument is that the briefing papers did not mention those who dissented at the meeting and those who were absent from the meeting but who held senior positions in the group. The way this is put as a denial of procedural fairness is that the applicants submit there has been a “split” of the hearing and decision-making function between Mr Gosford and the CLC Committee. In substance, the applicants submit Mr Gosford was given the hearing function at the 12 October 2016 meeting. However, having conducted the “hearing”, he did not convey all of the material information back to the CLC Committee because he did not inform the Committee about those who dissented (and why they dissented), nor about those senior people who were absent. Instead, Mr Gosford referred to some traditional owners abstaining from the vote, which the applicants submit was an incorrect and self-serving description of what had occurred. The “split” of the hearing and decision-making, where the outcome of the hearing is not accurately conveyed to the decision-maker, constitutes a denial of procedural fairness on the applicants’ contentions. The applicants rely for this aspect of their argument on Jeffs v New Zealand Dairy Production and Marketing Board [1967] 1 AC 551.

Ground 4: non-provision of the actual leases

182    Ground 4 is expressed as follows:

Further or alternatively, the Applicants contend that a breach of the rules of natural justice occurred in connection with the making of the CLC Decisions within the meaning of section 5(1)(a) of the ADJR Act, and were also affected by jurisdictional error so as to attract the jurisdiction of the Court under section 39B(1A)(c) of the Judiciary Act, and/or that the CLC or Executive Committee otherwise constructively failed to exercise its jurisdiction so as to attract the jurisdiction of the Court under section 39B(1A)(c).

Particulars

i.    The CLC or Executive Committee was required to, but did not, provide a copy of the draft Instruments to the traditional Aboriginal owners of the Amoonguna Land before it made the CLC Decisions.

ii.    The CLC or Executive Committee did not give the traditional Aboriginal owners all of the information in the Instruments before it made the CLC Decisions.

iii.    Accordingly, there was a breach of the rules of natural justice.

iv.    Further or alternatively, in these circumstances, it was not open to the Executive Committee to be satisfied that the traditional Aboriginal owners had, as a group, consented to the proposed grants.

183    This is a confined ground. The parties agree the impugned leases and licence themselves were not provided to the traditional owners at the meeting. The debate on this ground concerns the level of information the CLC was required to provide. The applicants rely in part on Kenny J’s distinction in Gondarra (at [72], [91]-[95]) between what is required to discharge a procedural fairness obligation in relation to an obligation to “consult” and what is required where the consent of another person is required. The applicants also contend on the evidence that there was an express request, through Mr Midena, to see the leases and licence themselves, and that Ms Marie Ellis also asked at the meeting to see the leases and licence.

184    Aside from submitting that the evidence discloses the traditional owners were, as a matter of substance, given sufficient information about the leases and licence (through the handouts prepared by the CLC), the CLC also submits that the applicants’ contentions on this ground sit uncomfortably with the concept of procedural fairness, which concerns the disclosure of adverse information a decision-maker may take into account.

Ground 5: failure to consider the identity of the traditional owners and their decision-making processes

185    Ground 5 is expressed as follows:

Further or alternatively, the Applicants contend that, in purporting to be satisfied that the traditional Aboriginal owners of the Amoonguna Land understood the nature and purpose of the proposed grants and as a group consented to them, the Executive Committee failed to have regard to relevant evidence and thereby the CLC Decisions each involved an error of law of one or more of the kinds described in sections 5(1)(d), (e) or (f) of the ADJR Act, or were otherwise contrary to law within the meaning of section 5(1)(j) of the ADJR Act, or were otherwise affected by jurisdictional error so as to attract the jurisdiction of the Court under section 39B(1A)(c) of the Judiciary Act.

Particulars

i.    At the time the CLC Decisions were made, the CLC possessed records relating to the identity of the traditional Aboriginal owners of the Amoonguna Land and their decision-making processes, including in particular CLC Records file 2013-5018, and also CLC Records files 2014-394, 2013-326 and 2006-479 (the Existing Material).

ii.    The CLC considered that the Existing Material showed that issues relating to the identity of the traditional Aboriginal owners of the Amoonguna Land were “extremely complex”.

iii.    Neither the Existing Material, nor even a synthesis or summary of the Executive Material, was before the Executive Committee when it purported to make the CLC Decisions.

iv.    The Existing Material was relevant to whether the Executive Committee could be satisfied, on the other material before it, that the traditional Aboriginal owners of the Amoonguna Land understood the nature and purpose of the proposed grants, in particular because it was relevant to the identity of the traditional Aboriginal owners and their decision-making processes.

v.    In the circumstances, and having regard to the framework of the ALRA:

A.    the failure of the Executive Committee to have regard to the Existing Material involved a constructive failure to exercise the Executive Committee’s jurisdiction; and

B.    further or alternatively, it was legally unreasonable for the Executive Committee not to have regard to the Existing Material.

186    This ground is couched, as can be seen, as a failure to consider relevant material. The applicants submit that by s 19(5), traditional owner consent as a group is made a relevant consideration by the statute. Therefore, in assessing that consideration, the applicants submit a Land Council must look at the three matters identified by this consideration: who are the traditional owners, what decision-making process was adopted and what are the “raw facts” about how a decision was made, the term “raw facts” being counsel for the applicants’ description.

187    For the CLC, Senior Counsel accepted in oral submissions that this ground stands or falls with the CLC’s submission about the way satisfaction can be formed under s 19(5). If the CLC is correct that it is able to have its officers (and expert anthropologists) synthesise and summarise the outcome of a meeting and advise the CLC Committee whether consent as a group was given, then the applicants’ ground 5 must also fail. He accepted the contrary is also true.

Ground 6: brief to Mr Bagshaw

188    Ground 6 is expressed as follows:

Further or alternatively, the Applicants contend that it was legally unreasonable for the Executive Committee to make the CLC Decisions without awaiting the provision of a report by an anthropologist engaged by the CLC to advise in relation to the identify [sic] the traditional Aboriginal owners of the Amoonguna Land and their decision-making processes, and thereby the CLC Decisions each involved an error of law of one or more of the kinds described in sections 5(1)(d), (e) or (f) of the ADJR Act, or were otherwise contrary to law within the meaning of section 5(1)(j) of the ADJR Act, or were otherwise affected by jurisdictional error so as to attract the jurisdiction of the Court under section 39B(1A)(c) of the Judiciary Act.

Particulars

i.    Before making of the CLC Decisions, the CLC decided to engage an anthropologist, Geoff Bagshaw, to inquiry into and advise it in relation to the traditional Aboriginal owners of the Amoonguna Land and their decision-making processes.

ii.    On or about 24 October 2016 (5 days after the CLC purported to make the CLC Decisions), the CLC briefed an anthropologist Geoff Bagshaw to (inter alia):

A.    “[c]onduct anthropological research and provide a report detailing the traditional ownership of [AALT]”;

B.    “review the traditional ownership of the [AALT] and to provide clear and concise advice on who is a traditional owner of the land trust as per the statutory definition in the [ALRA]”;

C.    specifically, advise on “whether a specific family group [the Tilmouth and Satour families] are traditional owners of the [AALT]”;

D.    advise as to “the content and accuracy of anthropological references, particularly in relation to definitions, assertions and application of traditional ownership or the exercise and nature of Arrente traditional decision-making (among other matters) that occur in the various documentation prepared on behalf of [ICL]”; and

E.    provide a report to the CLC including, inter alia: (i) “[a]n explanation of the traditional land tenure system(s) in the area with reference to relevant sacred sites and dreamings”; (ii) “[i]dentification of traditional owner groups affiliated with the area and the nature of that group affiliation, with reference to sites, dreaming tracks, and traditional estates”; “updated genealogies and/or lists of the relevant native title custodians”; and (iii) “[a]n anthropological analysis (if considered appropriate upon review) of the material produced by [ICL] concerning decision-making and land interests at Amoonguna ALT”.

iii.    The CLC required Mr Bagshaw to produce his report within 15 days.

iv.    As part of the brief to Mr Bagshaw, the CLC provided or made available the Existing Material.

v.    By implication, the CLC briefed Mr Bagshaw to conduct the research, and provide the advice and report described above, because it was uncertain of the reliability of the Existing Material (whether as to the accuracy or comprehensiveness) in relation to the identity of the traditional Aboriginal owners of the Amoonguna Land and their decision-making processes.

vi.    The CLC Decisions, if lawfully made, would require the AALT to grant interests in Amoonguna Land (including exclusive leases of up to 40 years duration) to third parties.

vii.    In the circumstances, and having regard to the framework of the ALRA, it was legally unreasonable for the Executive Committee to exercise its power to make the CLC Decisions where an obvious inquiry about a critical fact or facts (including the identity of the traditional Aboriginal owners) had not yet been completed.

189    The applicants maintain, and it is not disputed on the facts as I understand it, that Mr Bagshaw had been retained by the CLC to undertake an inquiry into membership of the traditional owner group for Amoonguna. A major reason for this was the ongoing question over the status of the Tilmouth/Satour families in Amoonguna. The evidence discloses that at the 12 October 2016 meeting, Mr Gosford did refer to the CLC having engaged Mr Bagshaw to undertake a review of traditional ownership at Amoonguna, but without any further details.

190    The brief to Mr Bagshaw identified a retainer to inquire into the status of the Tilmouth/Satour families in Amoonguna and a broader strand. The broader strand concerned the question of who were the traditional owners and who was able to make decisions for country, including some of the matters Ms Marie Ellis had raised on an ongoing basis about traditional owner decision-making for Amoonguna land. Mr Bagshaw’s brief relevantly required him to provide advice on the following:

The project is to review the traditional ownership of the Amoonguna Aboriginal Land Trust and to provide clear and concise advice on who is a traditional owner of the land trust as per the statutory definition in the Aboriginal Land Rights Act (NT) 1976.

Advice is required on whether a specific family group are traditional owners of the Land Trust area or whether they possess any traditional rights (not amounting to traditional ownership as defined in the Land Rights Act), and the reasons for that assessment. This advice will be required in relation to the Tilmouth and Satour families and their occupation of an area of the Amoonguna Aboriginal Land Trust known as the “Amoonguna Farm” and will require an assessment of the basis of their occupation and any entitlement they may have according to traditional Aboriginal decision-making for their continuing occupation of that land.

Advice is also required in regard to the content and accuracy of anthropological references, particularly in relation to definitions, assertions and application of traditional ownership or the exercise and nature of Arrernte traditional decision-making (among other matters) that occur in the various documentation prepared on behalf of the lmwernkwenhe Community Limited (ICL), a registered charity that has made wide-ranging and controversial assertions concerning the exercise of traditional Aboriginal rights and interests apparently “gifted” to ICL by its members.

The briefing information provided outline the history of these matters and attempts by the staff of the Central Land Council to address these matters. An independent consultant’s report is required by the Central Land Council in order that the findings may be considered and appropriate action taken to address matters arising. The situation is extremely complex and will require very sensitive treatment by the consultant.

191    As part of this brief, Mr Bagshaw was required to complete a report to the CLC’s anthropology section, which included, among other matters:

…

•    Identification of traditional owner groups affiliated with the area and the nature of that group affiliation, with reference to sites, dreaming tracks and traditional estates. Where the previous information on traditional ownership is updated by field work, updated genealogies and/or lists of the relevant native title and custodians should be provided, ideally by groups.

•    Identification of those people who traditional owners assert are not traditional owners, and the reasons why they are not under their traditions;

•    An anthropological analysis (if considered appropriate upon review) of the material produced by the lmwernkwenhe Community Ltd (ICL) concerning decision-making and land interests at the Amoonguna ALT;

…

192    The applicants contend that the Committee’s conduct in moving to decide whether it was satisfied under s 19(5) without waiting for Mr Bagshaw’s report, in circumstances where the CLC’s brief to him required him to provide his report within 15 days from the day he was retained, was legally unreasonable. Relying on how the analysis proceeded in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24, the applicants describe Ms Campbell and Mr Gosford for the purposes of this argument as in a position similar to that of government bureaucrats – their knowledge about the relatively short deadline for Mr Bagshaw’s report can be attributed to the decision-maker as constructive knowledge.

193    The CLC’s response to this ground is not dissimilar to the other grounds. Again, the CLC accepts this ground stands or falls with the proposition that the Committee was entitled to rely on the advice of CLC officers such as Mr Gosford, Mr Connelly, Ms Wilmot and Ms Campbell.

194    Further it submits the Court can examine the knowledge and conduct of these officers in determining whether the timing of the CLC Committee decision was legally unreasonable. The CLC also submits that given the opinions of Ms Wilmot and Mr Gosford in particular that there was consent from the traditional owners “as a group”, any delay could not have made a difference, and if that is the case, then legal unreasonableness cannot succeed.

195    As a separate argument, the CLC also submits that in any event, the evidence of Mr Connelly and Ms Wilmot in this proceeding make it clear that the right people for this traditional owner group had given their consent to the impugned leases, so that waiting for Mr Bagshaw’s report could not have made a difference to the CLC Committee’s deliberations, or their outcome. Moreover, the CLC submits that the direction to grant the leases and licence occurred in circumstances where the grantees were already in occupation, and using the land for the same purpose as envisaged under the grants. The grants therefore had no adverse legal or practical effect which warrants a “heightened approach to legal unreasonableness”.

The CLC’s reliance on s 19(6) of the Land Rights Act

196    The scope and operation of s 19(6) of the Land Rights Act was a critical aspect of the CLC’s defence of this proceeding.

197    The CLC submits that, even if any or all of the legal errors identified by the applicants in grounds 1-6 above are made out, the effect of s 19(6) was to preserve the validity of the CLC Committee’s decision, and to preclude the grant of any relief by this Court in respect of those errors. The CLC relied, by analogy, on the reasoning of the High Court in Commissioner of Taxation v Futuris Corporation Limited [2008] HCA 32; 237 CLR 146.

198    The CLC also contended s 19(6) could protect the leases from being impugned in relation to alleged flaws in their execution, including the applicants’ contentions about the affixing of a seal, on the basis that it is contrary to the statutory purpose revealed by ss 5(2) and 19(6) if non-compliance with s 4(5) were to affect the validity of a grant.

The challenge to the grant of the leases by the AALT

199    The remaining arguments pressed by the applicants relate to the grant of the leases, and do not turn on the lawfulness of the CLC Committee decision under s 19(5) of the Land Rights Act. The applicants contend that, even if that decision were lawful (contrary to the six grounds of review I have described above), the grant of the leases was legally ineffective.

200    This aspect of the applicants’ case seeks to avoid the operation of s 19(6) because it is premised on there being no “grant” which could be protected by s 19(6), even if that provision were given the operation for which the CLC contends.

201    The applicants’ argument has two parts: a challenge to the affixing of the AALT seal; and a challenge to the manner of execution of the leases. Insofar as these challenges by the applicants rely on the AD(JR) Act, they are subject to an objection to competency by the CLC, on the basis that granting the lease is not a decision or conduct to which the AD(JR)Act applies.

202    It is as well to set out here the terms of ss 4(3)-4(6) of the Land Rights Act:

Common seal of Land Trust

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

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

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

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

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

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

The seal contention

203    The uncontested evidence is that on 19 October 2016, Ms Jasmin Rucioch, an employee of the CLC, affixed the AALT seal to the impugned leases.

204    The applicants submit the AALT was required to use its seal to enter into a contract disposing of an interest in land, and purported to do so. The AALT recognised, the applicants contend, that the Land Rights Act (in ss 4(3) and 4(6)) assumes and requires that a Land Trust will act through the authority of its seal, affixed in accordance with the express terms of s 4(5). The applicants contend that when the seal was affixed by Ms Rucioch on 19 October 2016, there was no authority given by the members of the AALT as s 4(5) of the Land Rights Act required.

205    The applicants contend there were two defects. First, Ms Rucioch was not authorised by the CLC, the CLC Committee, or the AALT to affix the seal to the instruments of grant. The applicants contend that the only persons authorised to affix the seal of the AALT were Mr Kelly (as Chair of the CLC) and an Executive Member of the CLC, neither of whom affixed the seal.

206    Secondly, since the AALT Board had four or more members, at least three members had to authorise, in writing, the affixing of the seal, in accordance with s 4(5)(a). There was no such authorisation at or prior to 19 October 2016, and the applicants contend the authorisation must be prospective to fall within s 4(5). The authorisations in evidence, dated 11 November 2016 and signed by three members of the new Board, are said by the CLC to be retrospective, such as to amount to ratification of the affixture of the seal. The applicants contend that, as a matter of law, there could be no such ratification. Moreover, the applicants contend that the authorisations as phrased are, in any case, prospective in nature. Relevantly, the authorisations state:

…authority is hereby given by the undersigned to the Chairman and an Executive member of the Central Land Council to affix the common seal…

207    Finally, the applicants contend that the authorisations in any event are still only directed at the Chairman and an executive member of the CLC, not at authorising Ms Rucioch.

208    The CLC relies on the statutory presumption in s 4(6) and contends that any breach of s 4(5) would not displace that presumption. It also contends that the power to dispose of an interest in land in s 4(3)(c) is not affected by any defect in the authority to affix a seal. The CLC contends there is no temporal requirement in the terms of s 4(5) to the effect that the authority must be given before the seal is affixed, but even if there were, the Land Trust can subsequently ratify the affixing of the seal. Finally, the CLC submits that even if there was a defect in authorisation, it does not affect the validity of the impugned leases, relying on a construction argument based on Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 as applied to s 4(5): namely, that a breach of s 4(5) is not intended by the legislative scheme of the Land Rights Act to affect the validity of proprietary interests granted to a third party under s 4(3) by the Land Trust.

The contention that there has been no grant

209    Rather than being an independent basis upon which to secure relief, as I understood the applicants’ submissions, these contentions are directed to avoiding the operation of s 19(6) by another route. That route is to contend that there has been no “grant” of any of the impugned leases, and therefore s 19(6) has no effect, because in terms it only operates where there has been a “grant”.

210    The applicants contend that “grant…of an estate or interest in land” in s 19(6) should be construed as referring to what occurs on the conclusion of an enforceable contract between the parties. They submit there could be no agreement concluded until execution of the instruments by the AALT, and an agreement reflected by the execution of the leases by all parties. When the CLC sent the impugned leases, executed by the CLC, to the other parties, there was only an offer to enter into a lease. The agreement could not be made until the other parties had executed the leases. The applicants also raised a rather complex argument about why the leases, without being fully executed, would not be enforceable in equity.

211    The CLC answers this contention principally by submitting that when the CLC Committee gave a direction to the AALT, there was a grant, and the leases are protected by s 19(6), this defeating the applicants’ arguments about the AALT seal. Noting also that the Council and Congress did execute the leases, and it is only the leases to the Northern Territory and IES which remain unexecuted, an equitable interest in the land covered by the leases has been created in those two parties and that is also sufficient to fall within the terms of s 19(6).

The Northern Territory position in summary

212    The Northern Territory is generally supportive of the submissions made by the CLC, but advances its own submissions on some issues, adopting a somewhat different perspective. It is fair to say its perspective was pragmatic.

213    The Northern Territory (and IES) points to the function and operation of s 14 of the Land Rights Act, which provides:

14 Occupation etc. by the Crown etc. of Aboriginal land vested in Land Trust

(1)    Where, on the vesting in a Land Trust of an estate in fee simple in land, the land is being occupied or used by the Crown or, with the licence or permission of the Crown, by an Authority, the Crown or the Authority is entitled to continue that occupation or use for such period as the land is required by the Crown or the Authority.

(2)    During the period for which, by virtue of subsection (1), the Crown or an Authority is entitled to the occupation or use of land, any buildings and improvements on that land shall be deemed to be the property of the Crown or the Authority.

(3)    Nothing in this section prevents the granting by a Land Trust of a lease of land referred to in subsection (1) to the Commonwealth, the Northern Territory or an Authority, as the case may be, and, if such a lease is granted, the land ceases to be land to which this section applies.

(3A)    Nothing in this section prevents a Land Trust granting a lease of land to an approved entity under section 19A that includes land referred to in subsection (1) of this section.

(3B)    If land (the applicable land):

(a)    is of a kind referred to in subsection (1); and

(b)    is part of land that is leased to an approved entity under section 19A;

nothing in this section prevents the approved entity granting a sublease of the applicable land to the Commonwealth, the Northern Territory or an Authority, as the case may be.

(3C)    If such a sublease is granted, the applicable land ceases to be land to which this section applies.

(4)    This section does not apply in relation to an occupation or use of land that is authorized by the Atomic Energy Act 1953 or any other Act authorizing mining for minerals and this section does not prejudice the operation of the Atomic Energy Act 1953 or that other Act, as the case may be.

214    Thus, the Northern Territory submits that the Territory, IES and the Council all occupy the land which is the subject of the impugned leases rent free as of right pursuant to s 14. The decision to enter into leases, and pay rent, can be traced to a policy decision in 2008 to rely on infrastructure leases in preference to the rights conferred by s 14, including because leases would provide an income stream to communities (through the Land Trusts).

215    It contends that the applicants’ claims are misconceived (at least insofar as these three respondents are concerned) because no grant of a lease by the AALT to ICL could extinguish the rights of these three parties to occupy the land (rent free) under the terms of s 14. The “pre-existing rights” of those three parties condition the power in s 19 of the CLC to direct the AALT to enter into leases with other parties, such as ICL.

216    Due to that context, the Northern Territory submits the entire proceeding is misconceived, based as it is on a premise that there was a choice available to the CLC Committee between leases to the respondents and leases to ICL. The Northern Territory submits that premise is wrong.

217    The Northern Territory also submits that it, and IES, were in substance bona fide purchasers without notice of any flaw in the CLC Committee decision-making. They rely on this as a ground on which the Court should refuse relief, even if persuaded by the applicants’ submissions that the CLC Committee decision is unlawful, or the leases were executed without authority.

218    The applicants answer the s 14 argument, on broad terms, by submitting that they seek no relief in this proceeding concerning ICL and any grant of leases to it. Rather, they only seek relief concerning the impugned leases and if they establish an entitlement to that relief in law, the relief should be granted, even if the Northern Territory is correct (which they do not accept) that s 14 would preclude the grant of a head lease to ICL.

219    The applicants answer the bona fide purchaser argument with four contentions. First, these matters only go to the Court’s discretion on relief, if they are relevant at all. Second, for reasons I have summarised at [213] above, there is no lease between the AALT and the Northern Territory because the Northern Territory has not executed the lease. At most it has an equitable interest, but not one in the circumstances that equity would enforce. Next, the Northern Territory has not paid any monies and so is not a purchaser “for value”. Finally, if the Northern Territory were to now execute the lease, so as to convert its interest into a legal one, it would do so at a time when it has notice of the applicants’ claims.

RESOLUTION

Preliminary matters

The Land Rights Act’s objectives and scheme

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

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

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

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

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

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

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

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

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

(Footnote omitted.)

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

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

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

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

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

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

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

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

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

232    His Honour said (at 9):

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

…

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

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

Statutory construction

234    There are real constructional choices about the scope and operation of s 19(5) and s 19(6) of the Land Rights Act. In SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 347 ALR 405 at [14], the plurality said:

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

(Footnotes omitted.)

235    Similarly, Gageler J (who was in dissent, but not on the principles of statutory construction) said at [37]-[39]:

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

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

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

(Footnotes omitted.)

236    There are two limbs to s 19(5)(a) and this should not be overlooked. There is what one might call the “understanding” limb, and then there is the “consent” limb. As it is structured, and for reasons that are apparent when the legislative scheme is considered, the text and context of the first limb makes clear that all traditional owners should “understand” the nature and purpose of the proposed grant. That understanding might be inferred by a Land Council from the manner in which the proposal has been presented to traditional owners, and the reaction and response of those to whom it was presented to. It is likely, as the facts of this proceeding demonstrate, that a proposal will be presented and discussed on more than one occasion, in a meeting situation and that information about a proposal will be available in written and oral form. There will be real factual determinations to be made by a Land Council as to whether traditional owners understand the “nature and purpose” of any proposed grant, and those factual matters must be carefully considered by a Land Council, not paid lip service to.

237    The second limb, quite separately and distinctly expressed, is the “consent limb”. It is clear from the structure of para (a) that the phrase “as a group” only applies to this limb. As Muirhead J observed in Alderson at 10-11, the provisions could have been differently expressed to make it clear that the consent of each and every traditional owner was required. Even before the enactment of s 77A, in my respectful opinion Muirhead J was correct to see the provision as not imposing this kind of unanimity requirement.

238    However it is also important to emphasise that, unless there has been a specific election by the group of traditional owners under s 77A(b) for a decision-making process by majority, consent “as a group” does not mean or imply that a simple majority of traditional owners will necessarily suffice. There may be reasons related to the seniority position of certain individual traditional owners which would mean that without the consent of those individuals, there could not be consent “as a group”.

239    The principles to which I have referred above are also important in ascertaining the proper construction of s 4(5) of the Land Rights Act: see [462]-[477] below.

Fact finding

Fact finding on the applicants’ challenge to the CLC Committee decision

240    In this section, I set out my findings in relation to the factual matters material to my reasoning on the applicants’ challenge to the CLC Committee decision.

241    I accept the respondents’ submissions that the necessary fact finding for the purposes of the grounds of review is narrower than the applicants’ evidence might have suggested. That said, I accept there was considerable background and context to the legal issues arising from the October 2016 decision by the CLC Committee, and therefore no real criticism should be levelled at the applicants for placing a larger amount of material before the Court.

Arrernte traditional ownership, the Amoonguna community and decision-making

242    At the outset, it is important to describe some of the key aspects of traditional decision-making amongst the Arrernte people of the Amoonguna community. This was the subject of evidence and, at a general level, was not contested, although some of the detail, as well as the consequences or relevance of these matters, was the subject of some dispute. I accept Ms Marie Ellis’ evidence on these matters. Ms Wilmot’s evidence was generally consistent with what Ms Ellis said, except in relation to the status of Ms Elaine Ross as apmereke-artweye, as well as the specific requirements of consultation between the apmereke-artweye and kwertengerle. Ms Wilmot conceded during cross-examination that her opinions about the content of traditional law and what is required for decision-making are based largely on what she is told by members of the group, not being a traditional owner herself. To the extent of the inconsistencies, I consider that Ms Ellis, as a traditional owner, is better placed to describe the specifics of the traditional decision-making structure of her own people. None of Ms Ellis’ evidence about traditional decision-making was contradicted by any other traditional owner witness, and importantly, it was not contradicted by Mr Phillip Alice who was called by the CLC.

243    Ms Ellis described the land ownership and decision-making structure for Arrernte people in the following way:

Arrernte land tenure involves a form of identification between tracts of country (in the Arrernte language, “apmere”, meaning a place you belong to or your home country) and particular groups of people.

The Arrernte people have belonged to the “Mparntwe”, “Antulye” and “lrlpme” apmere since time immemorial. These are family kinship words. We are connected to, as one with, our apmere.

….

The “Apmereke-artweye” are the people who have rights and responsibilities in accordance with Arnpirrentye (Arrernte law) arising through their descent from their arrenge (father’s father) for the part of an apmere (“estate”). Kwertengerle are people who are related to a particular group of Apmereke-artweye because their atyemeye (mother’s father) or their aperle (father’s mother) or their ipmenhe (mother’s mother) is or was Apmereke-artweye of that same group. The Kwertengerle are first cousins, by blood connection, of the Apmereke-artweye. Together, the Apmereke-artweye and the Kwertengerle have the main responsibilities for looking after the estate and authorising what goes on there. They are the traditional Aboriginal owners of the estate.

Whilst our Arrernte Apmereke-artweye are often called by us in Australian language words as “owners of an estate”, they actually take care of it in partnership with Kwertengerle.

Sometimes, by way of explanation in Australian language, Arrernte refer to the Kwertengerle as meaning “cultural lawyer”, “manager”, “policeman”, “spokesman” or “prime minister”. They are the holders and keepers of the Arnpirrentye (Arrernte law)

The Kwertengerle are to ensure that the Apmereke-artweye look after an estate according to the dictates of the Arnpirrentye (Arrernte law).

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

244    She continued later in her affidavit:

Amoonguna Land is part of my grandfather’s estate (that is, the estate for which my mother’s father’s was Apmereke-artweye). His kinship name was Pengarbe. His name was Ross.

The Amoonguna Land is and has always been part of the Antulye apmere of the Arrernte.

It is my mother’s father’s country; it is my Atyemeye-keke. That is how it is related to me and me to it. I am a senior member of the traditional Aboriginal owners of Amoonguna.

245    The evidence disclosed that the most recent anthropological description held by the CLC of Arrernte land ownership and decision-making structures in the Amoonguna community was a document prepared by Ms Wilmot in 2012. This was one of the documents Mr Bagshaw was briefed to “update”. However, the applicants submit and I accept that as at the time of the CLC Committee decision-making, and also as at the time of the 12 October 2016 meeting, this was the information in the possession of the CLC which was supposed to guide its approach to consultation and decision-making within the Amoonguna community. It is conceded by the CLC that this document was not before the CLC Committee at the time it made its decision.

246    Relevantly, Ms Wilmot stated in this 2012 report:

Amoonguna lies on the country of Antulye people which extends north into Alice Springs township where they were recognised as native title holders of Alice Springs by Olney in 2000; it extends south to the Ooraminna Ranges, where they received compensation for the extinguishment of Native Title over Ooraminna Homestead, in the form of a freehold block of land owned by Urremerne Aboriginal Corporation (2009). Antulye people are also native title holders for Cameco EL 25758 which lies over the Angela Pamela uranium deposit on Owen Springs. This has been a high profile tenement, much in the media, and has required their attendance to at least 10 CLC meetings since 2008.

Throughout all these consultation processes, they have become quite a strong cohesive group, despite the loss of their ‘leader’, [redacted] in 2010, to Cancer.

The structure of this group has changed since the anthropology research undertaken in the nineties to assist determination of native title over Alice Springs. The current senior generation trace their ancestry back to their grand-fathers, as is customary for Arrernte societies. Thus, current traditional owners identify themselves as descendants of George Ross Penangke and predominantly reside in Amoonguna, Santa Teresa, Titjikala and Alice Springs.

Elaine Ross, Theo Alice (although he works at Atula Station), Teresa Alice & Marina Alice are senior apmereke-artweye generation TO residents of Amoonguna; Mark Alice, Joe Alice, Marcia Alice are also senior apmereke-artweye generation traditional owners, but not resident in Amoonguna. Paul Williams would be senior kwertengerle for matters affecting Amoonguna.

(Identifying information removed, emphasis in original.)

247    In a document a few months earlier she also stated:

Comment:

With the passing of [redacted] in 2010, Antulye estate group are still working through who the next ‘head man’ will be. Philip Alice, while assertive, does not have the appropriate ritual authority and care should be taken, when taking instructions, that Philip does not bolster his own views by drawing on the support of the Tilmouth family.

(Identifying information removed.)

248    In cross-examination, Ms Wilmot agreed her observation about Mr Alice applied also in October 2016. However she made the point that her earlier 2012 comment had been in relation to a meeting she would not be attending, whereas she was present at the Chifley Hotel meeting and in her view, if Mr Alice was not “representing the group present” at that meeting, others would have spoken up.

249    Bearing these opinions in mind, I turn now to Ms Wilmot’s evidence in her affidavit in this proceeding. At [20], she expressed her opinion that the traditional Aboriginal owners who have responsibility under “Aboriginal tradition” (I infer she means specifically Arrernte tradition) for being involved in the making of decisions about proposals for Amoonguna land were those she set out in a table in this paragraph of her affidavit, as amended in her oral evidence. They were as follows:

250    Ms Wilmot explains that this table is divided by seniority, with the senior men first, then the senior women and younger generation of men, then the “next generation down”, and finally the kwertengerle.

251    I pause here to note that Ms Marie Ellis disputes some of the details in this table. In particular, Ms Ellis considers that four other individuals (Patricia “Narli” Ellis, Grant Wallace, Jeffrey Wallace and Alvin Wallace) should be included. Ms Ellis also notes that there are some misspellings of names in the table, namely “Clemence Alice” (which should be “Clement” Alice), “Nola Ross” (which should be “Noella” Ross) and “Bonita Oliver” (which should be “Benita” Oliver). As they are not material to my decision, I make no finding as to these points of difference.

252    This was Ms Wilmot’s evidence about how she reached the conclusion in her report to the CLC that the traditional owners, as a group, had consented to the grant of the impugned leases:

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

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

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

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

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

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

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