Rirratjingu Aboriginal Corporation & Ors v Northern Land Council & Ors [2017] HCATrans 188 (15 September 2017)

Last Updated: 22 September 2017

[2017] HCATrans 188

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Darwin No D1 of 2017

B e t w e e n -

RIRRATJINGU ABORIGINAL CORPORATION (ICN 305)

First Applicant

LAKLAK MARIKA

Second Applicant

MANGATJAY YUNUPINGU

Third Applicant

WITIYANA MARIKA

Fourth Applicant

BANULA MARIKA

Fifth Applicant

GURUMINBUY MARIKA

Sixth Applicant

MUNURRKITJ MARIKA

Seventh Applicant

WANYUBI MARIKA

Eighth Applicant

WANINYA MARIKA

Ninth Applicant

DJARRAMBAL MARIKA

Tenth Applicant

WURRULUNGA MARIKA

Eleventh Applicant

BAKAMUMU MARIKA

Twelfth Applicant

WULWAT MARIKA

Thirteenth Applicant

WUYULA MARIKA

Fourteenth Applicant

NGAPANDALA MARIKA

Fifteenth Applicant

YALUMUL (BRUCE) MARIKA

Sixteenth Applicant

DJALINDA ULAMARI

Seventeenth Applicant

and

NORTHERN LAND COUNCIL

First Respondent

GUMATJ CORPORATION LIMITED (ACN 123 471 787)

Second Respondent

DJALU GURRUWIWI

Third Respondent

GALARRWUY YUNUPINGU

Fourth Respondent

BUNUMBIRR GERARD MARIKA

Fifth Respondent

Application for special leave to appeal

BELL J
KEANE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 SEPTEMBER 2017, AT 12.39 PM

Copyright in the High Court of Australia

____________________

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR A. WYVILL, SC, for the applicants. (instructed by MinterEllison Lawyers)

MR S.A. GLACKEN, QC: If the Court pleases, I appear with MR D. BUCHANAN, for the first respondent. (instructed by Northern Land Council)

MR A.R. MOSES, SC: If the Court pleases, I appear with my learned friend, MR K.S. ANDERSON, for the second and fourth respondents. (instructed by Bowden McCormack)

BELL J: Now, there is a submitting appearance for the third respondent and no appearance for the fifth respondent and I note the fifth respondent has been has been served.

MR WALKER: Yes, your Honour.

BELL J: Yes, Mr Walker.

MR WALKER: May it please the Court. Your Honours, there have been considerable sums received. It is not merely hoped but confidently expected there will continue to be considerable moneys received including on a quarterly basis in some cases to which the issues that may be affected by the decisions below will remain important.

Can I take you immediately in the application book, starting at page 150, to the provision at the heart of the matter, which does not stand alone but which has some very important central provisions: section 35(4) of the Land Rights Act treats of the position that obtained in this case, namely, a payment received by a Land Council in respect of Aboriginal land. Can I draw to attention, by the way, that the expression “Aboriginal land” in section 3 is described so as to include, for later purposes in my argument, land held in escrow. In subsection (4), that payment is the subject of a duty imposed on the Land Council, to pay within six months, what is called:

an amount equal to that payment to or for the benefit of –

a group described by a defined term which, by section 3, includes the descent groups which are represented in these proceedings. I will call them the owners. Notwithstanding that duty to pay an equivalent sum within six months there is engrafted on this scheme, if that is not too grandiose a term, subsection (8) which, in a way now familiar to your Honours, uses the language of judge-made law, general law trust to describe not only aspects of that duty but what I will call also the relation to which subsection (4) speaks. The relation, of course, is payer and payee by obligation.

It is said that the amount of money paid is held in trust. Now, immediately one sees that the statute departs, how shall we say, from classical enunciation of general law trust because it is not that money that is to be paid over upon some beneficiary’s requirement but rather an amount equivalent to it, rather reflecting the nature of money no doubt, but it is said that it is to:

be held in trust for the bodies to which or persons to whom that amount is eventually to be paid –

and your Honours are aware that that word “eventually” is part of the textual reason for regarding the trust in statutory terms as not existing until the Land Council has “determined” - I choose that word deliberately - has determined who those people are. I will come back to that point.

One sees then, perhaps not having got the attention it might have got below, subsections (10) and (11) which are ancillary but telling in section 35 because they stipulate what might be called a trustee-style investment to produce, of course, interest or income and in subsection (11) imposes an obligation:

so far as is practicable -

to have that interest or income paid to the persons entitled to what I will call the corpus or capital. Now, that was the provision which was at the - - -

KEANE J: These provisions that you have just taken us to ensure that when the payment is made the payees receive the full benefit of what is to be paid to them.

MR WALKER: Yes, and the payees are the descent groups.

KEANE J: Well, no, they may be different because subsection (8) deals with amounts of money mentioned in subsections (2), (3) and (4) - - -

MR WALKER: Yes.

KEANE J: - - - and (2) and (3) relate to people who are not traditional owners of the land, but (4) is.

MR WALKER: No, quite so, quite so.

KEANE J: It is only relation to (2) and (3) there have to be determinations by the Land Council in order to - - -

MR WALKER: We call that in aid, as your Honours know.

KEANE J: I appreciate that.

MR WALKER: Of course.

KEANE J: But on another view it is recognising that the exercise and the function that is being performed by the Land Council under (4) is to pay to those traditional land owners who have been identified as such - - -

MR WALKER: Quite.

KEANE J: - - - by the Land Council under section 24.

MR WALKER: Well, I will come directly to that. The first point about section 24 is that that is for the making and keeping of a register and that is not exhaustive or exclusively definitional of who are the traditional owners.

KEANE J: No, but no doubt it is intended that it should be correct.

MR WALKER: Quite so.

KEANE J: And that the Northern Land Council having made the register and kept it, and it not having been challenged in any way, that it may act on the footing that it is accurate.

MR WALKER: Your Honour, that raises obviously an important question, with great respect. A land title register is desirably correct but the registrar does not determine questions of ownership; not ordinarily. The traditional Aboriginal owners are a descent group, as defined in section 3, which is central to the scheme of all the provisions of this Act and they are defined in terms explicitly “in relation to land” which provide no footing whatever for an administrative determination of the fact.

Now, an administrative decision about the fact is familiar in every field of statutory duty. A decision-maker must decide what he, she or it is obliged to do with respect to the person before them but does not do so, to use some of the words that have been used in this argument below, authoritatively or finally or conclusively. The question is whether the statute gives to the administrator a determining role, subject only to checks of lawfulness by judicial review in the case obviously of Commonwealth legislation by reason of ultimately constitutional or a reflective statutory regime.

There is no text elsewhere relied upon in the reasons below or the argument against us here which indicates an adjudicating role as to the identity of traditional Aboriginal owners. There is of course a duty on all trustees at general law to be aware of the identity of the beneficiaries and it can be proper to expend considerable money in ascertaining that. Opinions must be formed which are real opinions because there are obligations for them to be done with appropriate care.

EDELMAN J: But even if that is right and there is not even an adjudicative role in relation to section 24, then by whatever process the Land Council makes a determination under section 24 to compile and maintain a register setting out those matters, that process would then feed automatically into section 35(4), would it not?

MR WALKER: The short answer is yes but I do not want to concede the whole case with that answer. Of course it feeds into it. Unless it is known that there is something flawed about a register or unless it obviously needs updating - and births and more to the point deaths will require updating obviously - one would hope there is a statutorily justified expectation that the NLC in its statutory trustee role imposed by 35(8) will look to its register. Indeed, the notion of looking other than to the register, apart from correcting or updating it, would be alien to the propriety of conduct obviate as a statutory trustee. So, that explains my yes to your Honour’s question.

What that does not amount to, however, is the register standing in some Torrens manner as an unexaminable determination, subject only to questions of lawfulness, that is, judicial review. There is no function of that kind given to the Land Council at all, it being remembered that the Land Council, pace what was said in passing in the Full Court, is scarcely a body to be selected as an adjudicative body about these matters of fact. It is a politically representative body and it will include people from what might be called potentially, alas very often actually, conflicting descent groups with respect to the larger body of land as to which the groups have fractional claims.

So one would have thought that you would find words of clear allocation, statutorily, if it could be constitutional achieved, of an adjudicative role. Your Honour, I keep using that word “adjudicative” but one appreciates that looming up is a question of Chapter III exclusivity, obviously.

Now, it is for those reasons, in our submission, that what is called the trust case has suffered incorrectly short shrift at first instance that I am bound to draw to your Honours’ attention where it is left by some important remarks in the Full Court is something to which I am going to have to come very soon. That may be against me on special leave, I confess, that is, it may be that we are not suffering the final quietus to some of these arguments. Your Honours, I do have to draw that to attention.

But, at first instance, there can be really no doubt at all that his Honour proceeded on the basis that a court could never be called upon to determine the question of who the traditional owners are or what proportion is proper for these distributions under the trust obligations imposed by the combination of section 35(4) and (8). A court could never be called upon to do that and would only ever check lawfulness by way of judicial review. We think judicial review not only under the ADJR Act, which seemed to have gone by concession in jurisdictional terms but also presumably at what I will call general law, captured jurisdictionally by section 39B.

Now, it is for those reasons that, in our submission, there is now ripe an important question deserving of this Court’s appellate attention. The importance of the control by the NLC of the distribution of moneys by reference to the statutorily stipulated payees of those moneys can hardly be understated, particularly in terms of the significance of the, what might be called historic settlement of the Land Rights Act, represents in the Territory with respect to a huge proportion of the what I will call still indigenous lands in this country.

Now, when one comes to the way in which at first instance Justice Mansfield understood the point, on page 35, in paragraph 107, his Honour refers not only to section 24 to which I have already made reference but also to section 23 which, as your Honours will remember, very importantly in its subsection (3), imposes an obligation of consultation - consultation with a group described by the term defined to mean factually, the relevant per cent group.

That of course, raises the question as to whether in section 23 it is for the Land Council to determine, as it were, the extent of its obligation by saying you are in and you are out and whether somebody cannot come to court and say, well, no, I am in, as a matter of fact and thus you have to consult with me and if you did not, the consequences follow.

KEANE J: Mr Walker, in terms of - sometimes people complain about abstracting questions - - -

MR WALKER: Yes.

KEANE J: - - - deal with them as a preliminary and no doubt it is a wholesome exercise more often than not, but in the present case when one looks at page 24, paragraphs 69 and 70 of his Honour’s reasons, when he is explaining the case that your clients make, it is not at all apparent to me from paragraphs 69 and 70 that there is any dispute about the identity of the traditional owners.

MR WALKER: No, that is correct.

KEANE J: The actual dispute is not about their identity. The actual dispute seems to arise on the affidavit of Mr McLean which suggests that the payments to be made are not to be made proportionately to the native title owners but rather that is to be varied by reference to:

the significance of the land under Aboriginal tradition, including the presence of sacred or significant sites and . . . the nature and extent of the environmental impact –

Now, is it your side’s contention that the answer to this preliminary question ought to be that the resolution of the claim explained in paragraphs 69 and 70 is something for a court to determine?

MR WALKER: The short answer is, of course, yes.

KEANE J: So that in relation to the claims of traditional owners to payment of royalties in respect of the land where the traditional owners have proportionate ownership, that those payments should be altered in order to recognise greater claims by some of the traditional owners because of the circumstances set out in paragraph 69.

MR WALKER: Yes. Now, can I explain, your Honour, that - - -

KEANE J: How could a court ever do that?

MR WALKER: That is not so startling upon consideration of what Courts of Chancery have been doing for a very long time, including currently. Can I explain? Ownership in the statutory sense, land rights ownership, if I can use the shorthand, is in dispute for a deal of the land. There is a small part, just over 5 per cent - you will see a reference to it in paragraph 22 on page 14 - which was put to one side for the purposes of this - - -

KEANE J: His Honour put it to one side so he did - - -

MR WALKER: But evidently attempted - - -

KEANE J: He did not refer to it again.

MR WALKER: - - - preliminary question - - -

KEANE J: So, it has nothing to do with what is in 69?

MR WALKER: I am just explaining - there is a dispute about ownership. There is not a dispute about identity. It is not a “you are in/you are out of a group” but it is which group is the owner of which land - that is the first point. The land lends itself cadastrally to very precisely expressed percentages of the surface of the earth. It is only in that sense that there is proportionate ownership. It is a proportion of the land but each proportion is wholly owned by the relevant group. We are not talking about co-ownership of - - -

KEANE J: No.

MR WALKER: - - - the whole of the land. So I need to make that clear from the very outset, not least because it is informative, we think - it may be against us, with respect to analogies with English land law but I need to come back to that. What we do say is that the question as to which local descent group owns which part of the whole land for which the NLC is responsible and in relation to which the money has come from the mining lease, that is a question which is never given to the NLC to determine. Nor would you expect it to be, because that is as fundamental a question in terms of the law of property as one might imagine.

It lends itself and lends itself only to ultimate judicial adjudication, not as to lawfulness of process, but as to who is, in law, the owner. Section 51(xxxi) of the Constitution lurks behind this as noted in the decisions below because the property in question cannot be the subject of administrative fear.

KEANE J: Mr Walker, I can understand what you are saying there but that seems to be something entirely different from what is being agitated in paragraphs 69 and 70.

MR WALKER: Well, what I have to try and persuade your Honour is, no, there is just one simple step, complex in hearing and adjudication, but then, as I recall from many years ago, so is a next-of-kin inquiry in the fifth generation. They are complex, too, but they still have to be done. Who are the descendants of the third Earl of Atholl when they have been migrating to the new world for 200 years?

KEANE J: But not by reference to which of those descendants has a greater emotional attachment to their Scottish heritage.

MR WALKER: Let me try and blend it then. So we have the next-of-kin inquiry which is a true co-ownership point - one asset, many putative co-owners in equity. So the complexity of the exercise has never been a reason to suppose that administrators rather than judges should do it. What happens, as your Honours know, is something in the nature of the special master gets the job.

As to the proportion of money flowing from the exploitation of land which is what these funds represent, and in other provisions to which we have drawn attention, the explicit analogy is drawn with rent - as to that of course, there is a ready precedent for determining what in equity should be reflected financially or by division of the benefit of property by reference to the contributions people have made or the significance of their part of the ownership to the whole endeavour.

Where a large part of land has been used for mining, for example, and most of it will, at the end of the mining operations, be rehabilitated so as to be near pristine, but the central part, the pit say, will not be so ever again on any human time scale, of course there is argument of a kind which, in equity, if there were a dispute between co-owners, tenants in common, one having kept the other out, for example, and then a partition suit, which occurs under statute but which is administered by the equity judges, there would be in the ordinary way, however invidiously - that is why we have equity judges to make otherwise invidious decisions about questions of proportion – and so there is a ready analogy in judicial technique and the overall answer of course is, it might be unpleasant as judicial proceedings - there is no doubt about that - but it is far worse than unpleasant in relation to the NLC deciding it, bearing in mind its political nature.

EDELMAN J: So do you say that a judicial determination needs to be made in every such case before a section 24 register entry can be made?

MR WALKER: Section 24, well, if there were dispute, under section 25, it is for the NLC to attempt to conciliate and I needed to draw that to attention because a body designated explicitly as a conciliator is scarcely to be regarded as between the lines or impliedly to be an ultimate adjudicator but yes, of course, the answer is, in the event of a dispute, like everyone else’s dispute about matters that sound in property, it ends up in a court, as it should.

EDELMAN J: Why does that then leave,; even assuming that to be correct, why does that leave any role for discretion under section 35(4), if any disputes have been resolved and then recorded in the register under section 24?

MR WALKER: There would not be discretion. We say there is not discretion, that is, there is no administrative discretion to say, but I am not going to count you as an owner and there is no administrative discretion to say, I think we need more money than you do because, when one says we and you, I mean, these are different groups, they are conflicting.

EDELMAN J: But the point is that to the extent that one uses the language of discretion or choice - - -

MR WALKER: Yes.

EDELMAN J: - - - that must have crept in at section 24, either by the result which is the process of conciliation or by a decision that is made to make an entry into the register prior to a court determination.

MR WALKER: The question will be then if somebody is aggrieved - to use it both technically and non-technically - by a decision not to register them, what is the role of the court? Your Honours will have gathered we say that is to use the jargon you see used at page 102, an important paragraph to which I am about to come – if your Honours will permit me, I see the red light is on. If I may continue?

BELL J: Yes, do.

MR WALKER: The important point is that we say that is a jurisdictional fact, that it is not committed for determination subject only to checks on lawfulness of the decision-maker. The ADJR Act, of course, recognises what used to be, at least, the straightforward, orthodox understanding that there are some administrative decisions that depend, jurisdictionally as it is put, on the existence of facts which a person aggrieved by the administrative decision may take to a court and say, the administrator decided the item was green, I ask your Honour to hold it was blue, whereby the decision was without power or wrong or whatever.

Now, we think that is what their Honours in the Full Court were referring to in the important passage at paragraphs 34 to 36 which is why I noted in opening the address namely I need to draw to attention that maybe we are not as bad off as my standing here seeking special leave might indicate. I need to draw it to attention because we submit it is not moot, we are not premature, we are not boxing at shadows, what their Honours point to in 34 to 36 is a controversy which it would appear the first instance judge by dismissing the so-called trust case has determined against us, namely that the court will not be seized of the issue who are the traditional owners for the contested parts of the land. I do not mean naming people. I mean which of the groups is the owner of the contested parts of the land.

BELL J: You are speaking here of the 5 per cent that was put to one side?

MR WALKER: No, I am talking about the very large difference that we contend exists as to which of the groups should be regarded as the owner of certain parts of the land.

BELL J: When one comes to – I am sorry, I just do not quite understand. At page 15 going over to 16, paragraph 29, his Honour refers to the “undisputed” RAC land, the “undisputed Gumatj land”, the “undisputed Galpu land” - - -

MR WALKER: Then there is the disputed land.

BELL J: Yes, and the disputed land is the small percentage relatively of the larger that is put to one side. But what his Honour was dealing with in dealing with the trust case was - - -

MR WALKER: Proportioning.

BELL J: - - -putting to one side - - -

MR WALKER: The ownership.

BELL J: - - - the small area of dispute. In dealing with payments under 35(4) in relation to royalties for the use of the land, it was dealt with on the basis that there were these undisputed areas of the land.

MR WALKER: Yes. Then, hence, with great respect, the force of what Justice Keane drew to attention.

BELL J: Yes.

MR WALKER: Ultimately, without being at all cynical, this is about money. The money share can be affected by a number of integers. There are two the statute calls for, namely, which group or groups or people. That is the first one. The second one is proportion. Proportion comes because there is one sum that is received and by hypothesis, and this case shows it in actuality, there is more than one group. They are not co-owners of the whole of the land. They are owners discretely of portions of the land.

BELL J: Yes.

MR WALKER: For those reasons, in paragraph 34, we can go straight to the second of those integers. Their Honours point out in the second sentence that the primary judge did not decide “that the question of the proportions payable was or was not a jurisdictional fact”. With great respect, when one looks at what his Honour was doing on page 57, page 18 and in light of the comments at page 19 - that is a description of what his Honour had done in the first judgment, self-description, and that goes back to page 35, paragraphs 107, 108 and 109 – for his rejection, 110, of the so-called trust case, it certainly appeared that his Honour was not treating it as a jurisdictional fact at all. In other words, the judicial review would be for lawfulness rather than for the fact of whether or not this was the correct proportion.

What we say is ripe and important is the proposition as to what we can litigate. We have been cut out of litigating. What is the extent of the

land that is ours and what is the proportion that should follow from our ownership of that land. It is, as Justice Keane points out, a matter which, at a trial from which we have been locked out – at a trial there would be very important issues concerning the way in which a court determines proportion.

Now, the analogy with trust law breaks down at that point which is one of the significant features of pointing out that the word “trust” is used in subsection (8) but it must be adjusted to the statutory scheme. That is because this is not a discretionary trust where the trustee acting in good faith simply allocates among the bright-eyed and bushy-tailed grandchildren which of those, if any, will be sent abroad to study. This is a case where it flows from ownership of a kind which is numinously important. This is an ownership under our statutory law to reflect what had been held to be the non-proprietary but profound connection that the Woodward Commission had looked at.

It is for those reasons, in our submission, that it is of great importance for this Court to consider whether or not a court, one of our courts, ever is seized of the question who owns and what proportion of money earned by reason of that ownership should go to discrete groups owning discrete portions of an overall aggregation of land affected by the tenure which produces the income. That is a point of surpassing significance, we submit, leaving really the question whether this is in some way moot or premature.

For the reasons I have tried to put, the failure at threshold, with a no doubt well-intentioned attempt to have a preliminary question – the failure at the threshold and now completely of the trust case makes it ripe. That is why I have drawn to attention what is at 102 because I have to accept that those are statements which appear to leave open, us to say even in a controversy framed only as judicial review, but this is judicial review of a decision where it is a jurisdictional fact, that is, it is a matter for the court, when asked to, to decide for itself.

It is for those reasons that there may be the differences that your Honours may have perceived in the written positions against us of the special leave application. But your Honours will appreciate that bearing in mind that we hope and confidently expect that there will be continuing flows of money of very considerable size and huge significance to these communities that the proper way in which disputes should be settled concerning its allocation ought to be determined at threshold by this Court. If it please the Court.

BELL J: Yes, Mr Glacken.

MR GLACKEN: Your Honours, can we highlight at the outset the central vehicular problem with this case which is apparent from a comparison of the observations of the trial judge at paragraphs 20 and 21, and the observations at paragraph 69, and can we do it this way? Your Honours have been given a supplementary book which has the pleadings. If your Honours were to turn to page 7 of that book, it sets out what were the claims for declaratory relief and your Honours will note at paragraph 1 then subparagraph 1.3 a declaration was sought that:

the Rirratjingu are the traditional Aboriginal owners of the Undisputed Rirratjingu Land and the Disputed Rirratjingu Land -

Now, one of the immediate difficulties in this case in suggesting that identity of ownership should be a jurisdictional fact is that, first of all, by and large most of the land was not in issue. There is no contest at all, save for the 5 per cent which then brings into the contrast between the trial judge’s observations at 20 and 21 and at paragraph 69. What is then sought, the second claim at paragraph 1.5, is a declaration that the proportion payable for this group be 49.755 per cent.

Now, adding 5 per cent to the undisputed 26 per cent does not reach 50 per cent. What that establishes, your Honours, or highlights is that the claim for a proportion does not follow the ownership of the land, and I will come to this in due course. His Honour noted the premise to this whole case is one of equitable beneficial ownership of the underlying land. That is contrary to considered dicta of this Court and the statutory scheme which I will come to in a moment. So that is to highlight the vehicular problem, the way the case was presented by the applicants.

While we have the book, could your Honours then go to the pleading of the substantive claims. The statement of claim commences at page 19, but at page 28 there is a pleading at paragraph 33 of the trust case that was addressed and rejected by the trial judge. Your Honours will see that it is a trust that is said to be either a fixed trust or a statutory entitlement. Reading over the page:

enforceable by a court of equity where the beneficial interest in or share of the quarterly payments is –

in such proportions to be:

determined accordingly to law –

One merely sees that there is a problem of requisite trust certainty for that pleading, but if we continue with the pleading, it is then said:

in this instance . . . should reflect:

33.1. the particular interests –

That is the premise of beneficial ownership which is flawed. Then:

33.2. the other covenants which each group . . . has provided -

It is that case that was presented to the trial judge by way of, essentially, demurrer was how the matter proceeded below. In that context, your Honour, we say that apart from the appeal lacking sufficient prospects the case does not, given its procedural history, raise a single matter of general importance to warrant a grant.

We accept that the Act is an important law, at least in the Northern Territory, and so too its financial provisions in section 35, but in short form, your Honours, we say that there are four reasons to refuse a grant of leave. The first three are vehicular, if I can put it that way, and the fourth has to do with the lack of prospects on the underlying case.

The first point we make, your Honours, is that the judgments below addressed a particular case presented by the applicants on an alleged particular trust over payments under a particular contract which was said to source their proportion of interest. That is the case pleaded at paragraph 33 of the statement of claim. In the result, there is no point of general or wider application in relation to section 35 of the Act. What the trial judge rejected was that particular pleaded case of an instance of dealing with payments under section 35, not how the section operates generally.

Secondly, the trial judge conducted a trial of separate issues on those two trust claims. The order for separate questions which your Honour has at the application book at page 46 was cast by a reference to the applicants’ pleaded case. It was not cast by reference to any abstracted question, for example, of jurisdictional fact. It was, as I said, essentially by way of demurrer as to whether the pleading disclosed a cause of action. As I said, that is at page 46 of the application book. His Honour then addressed each of those two trust pleas in his reasons at paragraphs 76 to 83 in relation to the fixed trust case and in his reasons at paragraphs 84 to 110 in relation to the alternative statutory entitlement.

There was then in the Full Court something of a slide or what their Honours politely described as a substantial shift, at paragraph 89 of their Honours’ reasons, and there then emerged a third alternative claim of statutory obligations, but no application was made to amend the pleadings. One is left with the ultimate holding of the Full Court that the trial judge was right to reject the applicants’ trust case. The applicants seemed to wax and wane on the extent to which they rely on that trust case as opposed to some pure abstract statutory construction question.

That leads to our third submission about vehicular points. The rejection of the applicants’ case did not turn on the asserted special leave question that a land council has authority to determine conclusively who are the traditional Aboriginal owners of the land or how a payment for their benefit may be effectuated. That is the question set out in the application at paragraph 6, application book 126 and the grounds of appeal, particularly ground 3, are drafted accordingly on that premise.

The Full Court was at pains to say that that was not so. Your Honours will see that in the Full Court’s reasons at paragraphs 33, 34 and 79. The Full Court went out of their way to say that the case below did not deal with whether the subject matters of section 35 are jurisdictional facts in an orthodox sense. But that, unfortunately, is the essential plank to this application before the Court. Obviously, your Honours do not have the benefit of reasons below from the Full Court dealing with that. At most, there is a side line of a reference by the trial judge, at paragraph 107, as one aspect of his Honour’s reasoning.

Can I then go to what happened in the Full Court before dealing with the actual holding? If your Honours go to application book 98, paragraph 19, the first thing that happened was that the applicants said that the agreement itself did not figure in the claim. It did figure for the trial judge because of the pleading that I have just taken the Court to. The second thing that happened, paragraph 21, last sentence, the submission that:

the Court did not need to concern itself with the trust case.

What was then presented, if you like, were two propositions. The first appears at paragraph 18 on the preceding page, which is a form of the question presented in this application as to whether the Land Council has authority or power to determine things authoritatively. The position put by the applicants in the Full Court was, if I can say, an extreme position, at paragraph 20, sixth line, fifth sentence:

The appellants’ position was that the NLC did not decide anything: it had to pay the actual owners, and until it had done that it had not discharged its obligation.

Again, that is repeated at paragraph 21, the second line. The case was:

that the NLC did not have any relevant power.

That case was then addressed by the Full Court. Their Honours, as I said, at paragraphs 33 and 34, said that the jurisdictional fact issue, identified at paragraph 18, does not arise, given the way the trial judge had disposed of the matter. At page 116, paragraph 90, their Honours rejected the case put on the appeal that the NLC had:

no role in paying the amount . . . and had no role in apportioning a payment -

In doing so, consistent with their observations that jurisdictional fact was not in play, their Honours had previously mentioned, at paragraph 87 on the previous page, authority cited by the trial judge, including a judgment of Justice Kenny in Gondarra, that in other aspects of the Act it is well established that who are the traditional Aboriginal owners is a matter that turns upon the satisfaction of the Land Council and is therefore not a jurisdictional fact. What their Honours said in the Full Court, back at paragraph 89, is:

in light of the substantial shift in the matters argued on the appeals . . . these decisions are of limited relevance.

Importantly, their Honours concluded in the last sentence:

we prefer to rely on the terms of s 35(4), a provision which was not considered in –

those earlier authorities. As I said, their Honours were at pains to say that this case does not present what is now being presented at paragraph 6 of the application. Their Honours’ construction of the section, which we say is perfectly correct, is set out at paragraphs 78 and 79. Time permitting, I was going to go to the statutory text and context. Their Honours, at paragraph 78, in the second sentence, say:

Plainly the Land Council must act in order to make the payment.

So it is part of the rejection - it has no role at all – and it reflects the primary judge’s reasoning that his Honour had said in the first instance a land council needs to do something. Bear in mind it is an obligation for a six-month period, and a recurring obligation. Their Honours then, at paragraph 79, make these observations, which we say are perfectly correct:

The obligation on the Land Council to pay the amount . . . necessarily involves a decision or determination, in the sense of forming an opinion, by the Land Council of who the traditional Aboriginal owners are . . . Nevertheless, this does not make the action . . . unreviewable -

They then deal with a submission - - -

EDELMAN J: Is not one of the difficulties with paragraph 79 that it is referring to:

by the Land Council of who the traditional Aboriginal owners are at the time it is to make the payment.

Why is it not correct to the extent that the Land Council has the ability to make a decision or determination? That decision or determination is made at the sections 23 and 24 stage and that translates automatically at the time it comes to make the payment.

MR GLACKEN: Those provisions in that situation, your Honour, will be facultative. There may be a need for appraisement from time to time, and that is plain or illustrated in this case by the 5 per cent dispute. There may be a view at one point in history that the 5 per cent is affiliated with group X but there are reasons to reassess that situation. The authorities cited by Justice Kenny in Gondarra – we could add a Full Court authority, Jungarrayi v Olney which makes those observations that this is a matter which will require assessment and appraisement from time to time; things are not fixed in stone - that brings me, if you like, to a fairly solid contextual point.

This mining agreement is not a section 19 agreement; it is a peculiar beast. When you have an agreement to mine on Aboriginal land under Part 4 of the Act, or a lease under section 19 of the Act, that requires the Land Council first to be satisfied that the traditional Aboriginal owners concerned understand and consent to the grant of the interest. That is accepted on the authorities to be conditioned by a state of satisfaction. We say it is a very peculiar result if the administration of the proceeds of the contract are somehow inversed to one of a jurisdictional facts situation; more peculiar when it is a recurring obligation to administer the contract quarterly, with a six-month obligation period ticking over and over.

The vehicular problem is that the extent of immunity from review, if I can put it that way, or its boundaries, was not explored. The trial judge at paragraph 104 referred to cases dealing with statutory trust, the ability to get mandamus or equitable remedies. It referred, for example, to the garnishee case dealing with statutory accounts. As I said, the Full Court earlier on referred to Bateman’s Bay, where we had made a concession that those of standing will be able to secure compliance with the statutory obligations.

Now, how you secure compliance was not explored below. The proposition that there is some holding that a land council has a right to be wrong has just not been explored at all. I do not know whether I need to go to the statutory text dealing with the merits of the construction argument.

BELL J: It is a matter for you.

MR GLACKEN: I will do that briefly. Would your Honours go to the provisions set out in the application book? Would your Honours please go to page 138 and if your Honours were to note the definition of “Aboriginal land” there are two species: one where land is:

held by a Land Trust for an estate in fee simple –

that is where the title is vested, and the second species is escrow where the title is held by the Land Council. The trial judge at paragraph 13 makes the factual observation that the bulk of this land, particularly where the mining operations are conducted, is escrow – the reason being is that the mining interest predated the commencement of the Land Rights Act. So if there is a premise of beneficial ownership to this supposed trust, one immediately falls down given that it is escrow land and the title has not invested in the title holder.

The second point that one can take from that circumstance is that under section 12 – it is not in the book, but all grants reserve from the grant minerals, naturally enough, and therefore these are the bauxite payments referenced to minerals, so again do not have the character of a rent or profit of the land in the hands of the fee simple holder, contrary to the way it is put in the application, particularly at paragraph 17.

With that background, I should draw to your Honour’s attention an example I mentioned – section 19, page 142, where striking a bargain for a dealing with respect to Aboriginal land would turn on the Land Council’s state of satisfaction rather than the objective existence of certain circumstances.

Then could I take your Honours to the workings of section 35, commencing at page 150, and your Honours will note that there are four groupings of payments – subsections (2) and (3) deal with what is known as – subsection (2) mining royalty equivalents, and subsection (3), other forms of mining payments. In writing at least the applicants fastened upon the presence of the word “determines” in these subsections and its absence in subsection (4) but your Honours will note, for example, they are both the same. In subsection (2) there are multiple payees, that is corporations, plural, and the word “determines” hooks to the last few lines, that is a payment in such proportions as determined.

Now, that is, of course, a mining operation, a large expanse. Contrast in subsection (4) there may or may not be multiple payees. Contrast subsection (4)(b) – township land where the section assumes it will only be a singular payee and the word “determines” does not appear. It seems to be a peculiar argument anyway because I am not sure where it is put that the word “determines” would somehow elevate an opinion formed by the Land Council into something that is unreviewable.

Just then dealing with subsection (4), we make the observation that it is in respect of all sorts of payments, not just rents and profits of the land, and there is a requirement to pay an amount equal to that payment to or for the benefit. It has two features if you like. It is not attaching to the payment in species, hence no one can say an equitable obligation or equitable interest attaches to the moneys received. The obligation relates to an amount.

Secondly, there is an evaluative assessment: (a) who are the traditional Aboriginal owners of the land, and (b) how will that payment be to or for their benefit. Importantly it is not to or at their direction. It was common ground, and, indeed, one of the applicants was a corporation seeking payment and it is common ground that a payment can be made to a corporation that exists to effectuate the purposes or interests of the good concerned. Can I just conclude - I see the time - - -

BELL J: Yes.

MR GLACKEN: Can I take your Honours to considered dicta of this Court which we say removes, if not demolishes the premise upon which the pleaded case depends. The trial judge sets it out at pages 32 and 33 of the application book. Your Honours might appreciate that the Land Rights Act was enacted in response to the holding of Justice Blackburn that denied the existence of native title, so it was remedial in that sense. Justice Brennan in Meneling Station outlines its history in that regard. The trial judge extracts a quotation from Meneling Station on page 33 to the effect that:

The Act does not confer or authorise the Crown to confer proprietary rights upon particular Aboriginals beneficially: Land Trusts are created to hold the title to an estate in fee simple -

It goes on to say the title is:

carved out of the Crown’s radical title.

Then at paragraph 100 refers to the effect of a grant once land is vested and that is a statutory entitlement; cites this Court in Wurridjal, that it is not native title; it is something “sourced in statute”. One could add also the

comments of Justices Gummow and Hayne at paragraph 145. If your Honours please.

BELL J: Thank you, Mr Glacken. Mr Moses.

MR MOSES: Your Honours, there is nothing I wish to add to what my learned friend, Mr Glacken, said.

BELL J: Thank you, Mr Moses. Yes, Mr Walker.

MR WALKER: Your Honours, we do not ground anything on the furphy of beneficial ownership of land by natural persons or by groups, incorporated or otherwise. We rely exactly on what my learned friend has in the closing passage of his address pointed to, namely, what this statute was intended to make up for, that is, the loss.

EDELMAN J: But there is a trust, on your argument.

MR WALKER: Yes.

EDELMAN J: If your submission is right, that there is no real discretion, does that not mean the Northern Land Council is in a position where within six months it must either obtain a judicial determination, if there has not been one that is present, or distribute the money with the real possibility of liability for wilful default if it distributes to the wrong party?

MR WALKER: The answer is yes, except the possibility of wilful default will be vanishingly small if proper advice is sought and care is taken. You can still be wrong. It is familiar for a trustee to be in that position. A general law trustee – indeed, it is so familiar that parliaments have for a long time, taking the lead from the courts, devised an approach which is, if you like, an equitable interpleader, “I don’t know what to do with this. I think I should do this. Am I justified in doing so?” So, judicial advice.

KEANE J: But that course would be contrary to the very existence of section 35(4). Section 35(4) is - - -

MR WALKER: I am agreeing, your Honour.

KEANE J: - - - in distinct contradiction to any notion that they could do something like that.

MR WALKER: Section 35(4) has an intractable time limit and that is why I was agreeing with Justice Edelman. You have to obey the six-month limit. There is of course on our argument, and we submit on any view of this, a risk that you will make a mistake if you have not been able to reach sweet concord among all competing parties as to how much should be paid and to whom. Of course you will be at risk of making a mistake. Parliament has chosen not to provide for either judicial advice in terms or for an extension of time on conditions, nor an interpleader of any kind.

EDELMAN J: This might not even be a liability for mistake. This is just liability for distribution to the wrong party.

MR WALKER: I accept that. It would be because you are wrong.

MR EDELMAN: So you would have to fall back on the excuse provisions.

MR WALKER: Yes. Your Honours, I hoped I would not have to utter the “R” word - “restitution” - but yes, that looms behind everything that this statute has set up. On any view of it though, the statute does not give to the NLC the right to immunise itself against giving money that it should not have given according to the statute.

In particular, it does not say it is obliged to give - and parenthetically is entitled to good discharge for giving – the money to whomever it decides in good faith should have it because the definition of traditional Aboriginal owners admits of no adjudicative role for the NLC or, indeed, anyone other than a court. They are matters of surpassing significance in legal status, preternaturally for a court on the merits on evidence against the legal tests applied by the definition to which one is used, of course, in native title, the other Commonwealth statute of significance in this area.

Section 24, it is facultative, as my learned friend points out. There is no obligation to keep a register at all. There is a power to do so. A register is, like an electoral roll, a perpetually out-of-date instrument, hence in election law a need to have cut-off dates in order for it to operate. There is nothing like that here at all and, indeed, in critical provisions such as I think 27, you will find that it is in the alternative - the owners or the people on the register.

Now, it is different, of course, when you come to whether there has been consultation to the satisfaction of the NLC because, as has been explained by Justice Kenny and others, that wraps up their satisfaction that they have got a sufficiently cogent grip, correctly, of who it is they have to consult with. But when it comes to actually who is the owner, where there is no discretion involved, in our submission, however awkward it may be, these are very important rights and questions of status which are for a court, as would be the case of whether I am the son of my father who has left some property for his children. That, in our submission, is of exactly the same kind of question.

Of course there is greater complexity of a kind that we have tried not to understate in relation to the proportions question. But Parliament has required that to be done and again, in our submission, the notion of cutting a court out from the merits of that decision is in relation to the destiny of very large sums of money over very considerable periods of time under regimes that may continue indefinitely, one that is not to be found between the lines. That is why it is an important case and that is why it is right for determination. If it please the Court.

BELL J: Thank you. The Court will adjourn briefly to consider the future conduct of the matter.

AT 1.40 AM SHORT ADJOURNMENT

UPON RESUMING AT 1.42 PM:

BELL J: In our opinion there are insufficient prospects that any appeal to this Court would succeed to warrant the grant of special leave. Special leave is refused with costs.

MR WALKER: May it please the Court.

BELL J: Adjourn the Court to 10.15 on Tuesday, 10 October in Canberra.

AT 1.43 PM THE MATTER WAS CONCLUDED