Malbon, Justin --- "Northern Land Council v Commonwealth of Australia and anor" [1987] AboriginalLawB 60; (1987) 1(29) Aboriginal Law Bulletin 12

• Northern Land Council V Commonwealth Of Australia And Anor

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Northern Land Council v Commonwealth of Australia and anor

Northern Land Council v. Commonwealth of Australia and anor

High Court of Australia

Mason C. J., Wilson, Brennan, Deane,Dawson, Toohey and Gaudron J J.

21 October 1987

Casenote by Justin Malbon

The plaintiff Northern Lands Council is seeking to set aside certain terms in the Ranger Uranium Mine agreement.

The Ranger mine is operated by Energy Resources of Australia Ltd. (second defendant) on behalf of the Commonwealth (first defendant). A case was stated to the High Court [N.L.C. v. The Commonwealth (1986)161 C.L.R. 1] in which the Court found that the agreement to carry on mining at Ranger was voidable. This case involves a further case stated to the High Court. In this case the N.L.C. alleges in its amended statement of claim that the agreement between E.R.A. and the Commonwealth was based on "breach of fiduciary duty, duress, undue influence and unconscionable conduct on the part of the Commonwealth" in relation to the relevant Aborigines.

The questions asked in this case stated are whether certain specified facts in the statement of claim were void or voidable and if voidable, whether there is a cause of action against E.R.A. It is further asked, "Do the facts alleged in the statement of claim disclose a cause of action for breach of fiduciary duty" against the Commonwealth? The Court made a number of comments on this last question which are of interest. The amended statement of claim in this matter alleged that the Commonwealth was subject to a fiduciary duty which derived from pre-existing Aboriginal title which is recognised in Milirrpum v. Nabalco. It is, however, consistent with the view of the Canadian Supreme Court in Guerin v The Queen (1984) 2 S.C.R. 335.

In Guerin the majority found that the . federal government owed a fiduciary duty to the Indians residing at an Indian reserve near Vancouver. The Crown in Guerin failed to properly inform the aboriginal members of the reserve of the terms and conditions of the leasing of land for a golf course on the reserve land. This failure was seen to have been a breach of a fiduciary duty Dickson J (now the Chief Justice) found that the Indian's right to land "both predated and survived the claims to sovereignty made by various European nations in the territories of the North American continent". (at 378) The right was defined as being a "legal right derived from the Indian's historic occupation and possession of their tribal lands". (376) Dickson J described the Indian title as being sui generis.

In Guerin it was seen that a fiduciary duty arises only where the Indians have first surrendered their title to the Crown. This may in some circumstances mean that the Crown assumes an unnecessarily paternalistic role in relation to Aboriginal people. Dickson J stated that upon surrender of aboriginal title, the Indian Act may apply It is with this Act that "Parliament has conferred upon the Crown a discretion to decide for itself where the Indians' best interests really lie". (384).

The case of N.L.C. v. The Commonwealth, when finally dealt with (no doubt in the High Court), may well prove to be, as Guerin is in Canada, a landmark decision on the question of Aboriginal title. The Court may well debunk the absurd proposition in Milirrpum that Aboriginal title evaporated upon the arrival two hundred years ago of the British in the colony of New South Wales.

The High Court in this case found that it was not able to finally resolve the questions of law raised in advance of a trial. The questions raised in the case stated were not answered and the matter was remitted, in the light of the conclusions made by the Court, to an appropriate court.