Bidjara Aboriginal Housing & Land Co Ltd v Indigenous Land Corporation

Background 3 On or about 23 July 1997 the first respondent, the Indigenous Land Corporation ("the ILC"), acquired a substantial pastoral lease over land called "Mount Tabor Station" near Augathella in Queensland. 4 The acquisition of the pastoral lease had been prompted by an application by Bidjara Housing to register a land need pursuant to the land acquisition procedures available under the ATSIC Act. In August 1996, upon receipt of that application, the ILC caused the property to be assessed by a land use and planning consultant. The assessor subsequently made a recommendation to the Board of the ILC that the land be purchased for grant to an ATSIC Corporation. 5 In his report, the assessor described the property as of cultural significance to the Bidjara people and as containing sacred, cultural and historical sites. It was said that many large Aboriginal family groups, predominantly from Charleville, could trace a traditional and historical link to Mt Tabor Station and the adjoining property. The consultant described Bidjara Housing as an established Bidjara resource agency with support services and a financial management structure. Further, the Mt Tabor Station was described as a "pastoral lease with uncertain Native Title opportunities". 6 On 26 August 1996, the Board of the ILC resolved to acquire the leasehold property pursuant to s 191D(1)(b) of the ATSIC Act for the purpose of granting that interest to an ATSIC Corporation pursuant to s 191D(1)(a). The ILC also resolved that the acquisition of the property should be conditional upon; "(a) The ILC resolving which body, other than the Bidjara Land and Housing Aboriginal Corporation, should be the new owner; …". 7 Bidjara Housing was not advised of this condition attached to the ILC's decision to purchase the property. However, correspondence shows that the ILC had been in communication with Bidjara Housing about its undertaking a caretaker or management role with respect to the property after purchase. 8 Neither before nor after the acquisition of the lease of Mt Tabor did the ILC identify an ATSIC Corporation as grantee. The ILC had apparently been aware, as early as some nine or ten months before acquisition, that there was an actual or potential conflict between different groups of the Bidjara people with claims to the land. That conflict was seen as having a bearing on the selection of an appropriate corporation to be the grantee. 9 It is not disputed that Bidjara Housing has amongst its members a number of Bidjara people, although persons other than the Bidjara, including non-indigenous persons, may comprise up to forty per cent of its membership. However, Bidjara Housing does require that its members reside in the Warrego area and there is evidence that some persons claiming to be Bidjara do not live in this area. 10 Further, the ILC accepts that Bidjara Housing is an ATSIC Corporation for the purposes of the ATSIC Act, being an Aboriginal association incorporated under Part IV of that Act. Another ATSIC Corporation comprising Bidjara peoples, the Bidjara Traditional Owners Aboriginal Corporation for Land Culture and Heritage Pty Ltd, supports the grant of the property acquired by the ILC to the Bidjara Housing. The second respondent to this appeal, also an ATSIC Company, however, contends that Bidjara Housing does not in fact represent the Bidjara people or the particular Country only and is therefore not the appropriate grantee for Mt Tabor Station. 11 The first of the native title claims which included the subject property was made shortly before the ILC acquired the Mt Tabor pastoral lease on 11 July 1997. The application was made on behalf of members of the Lawton and Fraser families, who claimed to be members of the Bidjara Council of Elders and asserted their claim to be for, and on behalf of, the Bidjara Peoples. The second native title claim was filed on 28 October 1997 by three persons, again on behalf of the Bidjara Peoples and their clan groups. Although the applicants in these claims had apparently reached agreement over their claim boundaries, they did not succeed in having their claims registered by the National Native Title Tribunal ("NNTT"). 12 Finally, on 19 December 1997 Mr R Robinson also filed a native title application described as for and on behalf of the Bidjara People, with respect to the lease area and over country overlapping the two previous claims. His application was referred to as "Bidjara People #4 claim" and was successfully registered by the NNTT on 19 December 1997. 13 The groups of applicants in all three native title applications have been involved in extensive negotiations in an attempt to resolve the intra-indigenous overlap of their claims. However, all attempts at mediation by the NNTT have failed. The issue of native title over the Mt Tabor pastoral lease has accordingly been substantively allocated to this Court for determination, and is currently proceeding through various interlocutory stages before being fixed for hearing. 14 The ILC explains its delay in making a grant of the pastoral lease to an ATSIC Corporation by reference to the perceived conflict as to the representation of the Bidjara People. That conflict, it contends, has precluded the identification of any ATSIC Corporation to which it might make a valid grant in accordance with its own guidelines and conditions adopted pursuant to the ATSIC Act. The ILC further contends that the native title proceedings afford the most appropriate mechanism for resolving that conflict.

The decision at first instance 15 Kiefel J rejected Bidjara Housing's submission that the period of time stipulated by s 191D(3)(b) within which the ILC is to make a grant to an ATSIC corporation must be a relatively short one. Further, her Honour rejected the submission that the ILC had acted unreasonably in refusing, to date, to make a grant to Bidjara Housing or any other ATSIC Corporation. 16 Her Honour reasoned that s 191D(3)(b) of the ATSIC Act does not prescribe a period within which a grant is to be made, except for requiring that it be a priority of the ILC to do so within a reasonable time after the acquisition of the interest in land. Although she accepted that a consideration of delay requires reference to the statutory context and purpose, her Honour considered that no statutory or policy requirement rendered the ILC's delay in making the grant unreasonable in this case. This conclusion was expressed as follows in the judgment at first instance: "The fundamental approach taken by the ILC was to await an outcome in the native title proceedings, by which the traditional owners, or the interests pertaining to the land, might be identified. It has not refused to make a decision and has, by reference to the outcome, identified the point when one will, or will shortly thereafter, be made. Given the preference afforded, by the policy documents, to those having a traditional connexion to the land, and to the use of the statutory powers of acquisition and grant as an adjunct to native title claims it could not, in my view, be said it was unreasonable in delaying its decision so those aims might best be realised. It seems to me that it was in the circumstances justified in doing so." 17 Kiefel J had regard to s 7(1) of the Administrative Decisions (Judicial Review) Act 1977 ("the AD(JR) Act") which provides that, in circumstances like the present, a person aggrieved by a failure of a decision maker to make a decision to which that Act applies, may apply to the court "in respect of the failure to make the decision on the ground that there has been unreasonable delay in making the decision." She applied the reasoning in Thornton v Repatriation Commission (1981) 52 FLR 285 as approved in Re O'Reilly; Ex Parte Australena Investments Pty Ltd (1984) 58 ALJR 36, Wei v Minister for Immigration, Local Government and Ethnic Affairs (1991) 29 FCR 455 and Kimia v Minister for Justice & Customs [2000] FCA 18 [59].

(a) Is "within a reasonable time" the same as "without unreasonable delay"? 18 The reasoning of the learned primary Judge was criticised by Counsel for Bidjara Housing as focusing on the wrong question of whether the ILC had been "unreasonable in delaying its decision" instead of asking whether a grant of the Mt Tabor lease had been made within a reasonable time. The "unreasonable delay" test was identified as deriving from s 7(1) of the AD(JR) Act which provides; "Where: (a) a person has a duty to make a decision to which this Act applies; (b) there is no law that prescribes a period within which the person is required to make that decision; and (c) the person has failed to make that decision; a person who is aggrieved by the failure of the first-mentioned person to make the decision may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the failure to make the decision on the ground that there has been unreasonable delay in making the decision." 19 It was sought to contrast that sub-section with s 191D(3) of the ATSIC Act which, it was said, imposes a positive duty on the ILC to make a grant within a reasonable time. However, we do not consider, in the present context, that to require a decision-maker to make a decision within a reasonable time is to impose a shorter time limit than that imposed by a requirement that there should not be unreasonable delay in making the decision. 20 In Thornton v The Repatriation Commission (1981) 52 FLR 285, Fisher J, in applying s 7(1) of the AD(JR) Act said, at 291; "In my opinion the reasonableness of the delay on the part of the Commission is a matter for objective determination, the question being whether a reasonable man acting in good faith could consider the decision to delay until the High Court hands down its judgment as appropriate or justified in the circumstances, or whether it was capricious and irrational." 21 In Wang v Commissioner of Inland Revenue [1994] 1 WLR 1286, the Privy Council, at 1293, cited with approval another passage from Thornton's case, at 292, where Fisher J said; "The question is whether there are circumstances which a reasonable man might consider render this delay justified and not capricious. In the first instance it is on the evidence a delay for a considered reason and not in consequence of neglect, oversight or perversity." 22 The significance of that citation is that the Privy Council in Wang was concerned with the application of s 64(2) of an Inland Revenue Ordinance which cast on the Commissioner of Inland Revenue a positive obligation in these terms; "On receipt of a valid notice of objection under subsection (1) the commissioner shall consider the same and within a reasonable time may confirm, reduce, increase or annul the assessment objected to ...". 23 Nevertheless, their Lordships found it appropriate to apply Fisher J's formulation of the test erected by the requirement in the AD(JR) Act that there not be unreasonable delay in making an administrative decision. It is not without significance in this context that Bidjara Housing itself invoked s 7(1) of the AD(JR) Act, by pleading in pars 12 and 13 of its amended statement of claim that the ILC had failed to make a decision to which the AD(JR) Act applied and there had been "unreasonable delay in making the decision". 24 It was next submitted on behalf of Bidjara Housing that, within the statutory context of the functions assigned to the ILC, the phrase "within a reasonable time" contemplated an acquisition and grant "occurring within the same basic timeframe." In the course of discussion between Counsel and members of the Court, that was elucidated as meaning that a grant should be made as soon as reasonably practicable having regard to the conveyancing and other mechanical steps required to effectuate the grant. Such a view of the legislation conflicts with that taken by the learned primary Judge who said, at par 31; "The applicant submits that the statute is speaking of a very short period of time between acquisition and grant, since its purpose is the making of a grant to an Aboriginal or Torres Strait Islander corporation. The legislature should be taken to have contemplated almost a contemporaneous grant. On some, perhaps many, occasions it seems to me that will likely result, because a grantee is in the contemplation of the ILC at the time of the acquisition. In many such cases that will be because the grantee is the proponent of the acquisition, as I shall shortly discuss in connexion with the applicant's submissions concerning the guidelines. There is however no statutory or policy requirement that that be the course to be followed. It may be that land considered as suitable to a number of potential grantees is acquired and held. The provision permitting the disposal of surplus lands (s 191J) underscores the ability of the ILC to acquire and hold land. In doing so it would need to balance the need to use monies available to it to the best advantage and efficiently." 25 We agree, with respect, with her Honour's approach and consider that the alternative construction contended for by Counsel for Bidjara Housing has the potential to exclude from determination of the time to elapse between acquisition and grant circumstances which the legislative context indicates to be relevant and appropriate. A time-frame abbreviated as a result of that process could not be characterised as "reasonable"within the meaning of s 191D(3)(b).

(b) Section 191J 26 A significant part of the legislative context to which we have just referred is s 191J of the ATSIC Act, which provides; "Disposal of surplus land When section applies (1) This section applies if: (a) either: (i) the Indigenous Land Corporation has acquired an interest in land: (A) under paragraph 191D(1)(b); or (B) by way of a gift, grant, bequest or devise made to it; or (ii) a subsidiary of the Indigenous Land Corporation has acquired an interest in land: (A) as a result of the performance by it of the function corresponding to the function of the Indigenous Land Corporation referred to in paragraph 191D (1)(b); or (B) by way of a gift, grant, bequest or devise made to it for the purpose of the performance by it of the function corresponding to the function of the Indigenous Land Corporation referred to in paragraph 191D(1)(a); and (b) the Indigenous Land Corporation or the subsidiary, as the case requires, considers that it no longer needs to hold the interest for the purpose of making a grant of the interest to an Aboriginal or Torres Strait Islander corporation within a reasonable time after that acquisition. Disposal of surplus land (2) The Indigenous Land Corporation or the subsidiary, as the case requires, may dispose of the interest to a person or body." 27 With reference to that section, the learned primary Judge observed, in the passage quoted at par 24 above, that it "underscores the ability of the ILC to acquire and hold land". It also contemplates, we consider, that circumstances may arise after acquisition and before a grant of land which, in the opinion of the ILC, make a grant no longer appropriate. That feature of the legislation militates against the construction of s 191D(3) which requires a grant to be made as soon as reasonably practicable after acquisition or "within the same basic time frame."

(c) The legislative context 28 Nor do we consider that the learned primary Judge erred in examining the reasons which induced the ILC to defer making a grant. Counsel for Bidjara Housing submitted that the examination at first instance went to the "motives" of the ILC. We accept that the test imported by the phrase "within a reasonable time" is an objective one to be applied in the light of all the circumstances made relevant by the legislative context. That context includes the obligation imposed by s 191D(4) of the ATSIC Act in these terms; "In performing its land acquisition functions, the Indigenous Land Corporation must search any relevant Registers of the National Native Title Tribunal to ascertain whether any claims have been lodged or accepted or determined in relation to land under consideration for acquisition." 29 As well, s 191Q of the ATSIC Act obliges the ILC, for the purpose of performing its functions, to have regard to; "(a) the national indigenous land strategy; and (b) each relevant regional indigenous land strategy." The formulation of those land strategies is respectively provided for by s 191N and s 191P of the ATSIC Act. In addition, s 191I contemplates that the ILC may make "written guidelines" about the performance of a function of the ILC referred to in, amongst others, par 191D(1)(a) of the ATSIC Act. Accordingly, the ILC has published, in August 1996 "Guidelines" which recite that they are to be read in conjunction with the National Indigenous Land Strategy and the Regional Indigenous Land Strategy for each ILC regional area. Those Guidelines stipulate, as one of the "Strategic Criteria (cultural significance) for Land Acquisition"; "A6) A native title claim has been lodged, accepted or determined over the land. Section 191D(4) of the ILC Act requires the ILC to ascertain whether any native title claim under the Native Title Act 1993 (Cth) ('Native Title Act') has been lodged, accepted or determined over the proposed land. ILC policy is that if a native title claim has been lodged and/or accepted over the land, then the ILC will, in general, defer a land acquisition decision until the claim has been resolved. If a native title claim has been determined and native title has been extinguished, then the land may be eligible for acquisition by the ILC. If a native title claim has not been lodged over land proposed for acquisition and where the possibility of native title may exist, then the ILC will consult with the group or their representative body, in order to understand the intentions of any native title holders in respect of making a claim. It is beyond the role of the ILC to assess whether a native title claim would be successful, as this is the responsibility of the National Native Title Tribunal and ultimately the Federal Court. The interests of the ILC are strategic and regional, aimed at supplementing other mechanisms available to address land needs. In considering land needs on a regional basis, the ILC may consider, however, how a land acquisition proposal funded by the ILC could contribute to the furthering of the interests of traditional owners, for example in reaching a regional agreement. Summary of ILC position on criterion A6: The ILC will, as a general principle, give priority to land proposals where a native title claim is unlikely, or where extinguishment has been determined, and defer consideration of land acquisition proposals until existing native title issues and claims in relation to the land have been resolved. The ILC will take account of the nature of native title rights which may be determined in the future and the extent to which they address dispossession and the land needs of indigenous groups in each ILC Regional Area. At the time of publication of these Guidelines, no native title determinations have been made under the Native Title Act." 30 Criterion 3B of "Specific Criteria (Viability and Outcomes)" of the same Guidelines concludes with this passage; "However, wherever possible, the ILC is committed to the title‑holding body corporate comprising the traditional owners of the land. This policy is part of the ILC philosophy of recognising prior ownership and it is reinforced by the views expressed during regional consultations. Summary of ILC position on criterion B2: The ILC will give priority to land proposals where the titleholding body comprises the traditional owners of the land, notwithstanding that the cultural significance of the land is derived through traditional, historical or contemporary attachment and that the proposed purposes for the land may include a broader use base." 31 In our view, those criteria allow the ILC, after acquisition, to defer, in its discretion, the making of grant until after determination of a native title claim over the subject land. They also contemplate, we consider, that the ILC may have regard to the identification of traditional owners occurring in the course of resolving such a claim when consulting with the presumptive owners or their representatives with a view to furthering there interests and to selecting an appropriate title-holding body corporate. We are not to be taken as holding that any grant made after the determination of a native title claim will have been made within a reasonable time as required by s 191D(3)(b). The reasonableness of any deferral of a grant will have to be assessed from time to time in the light of all the relevant circumstances. These will include the likely time to elapse before resolution of the native title claims and the availability to the ILC of other means of identifying traditional owners and others with traditional links to the land, for the purpose of selecting a suitable grantee corporation.

(d) Section 15AB(1) of the Acts Interpretation Act 1901 32 Counsel for Bidjara Housing contended that the learned primary Judge had erred in not invoking this section as a warrant for having regard to the Explanatory Memorandum to the Land and Indigenous Land Corporation (ATSIC Amendment) Bill 1994 (Part B) in order to elucidate the meaning of the phrase "within a reasonable time". The Explanatory Memorandum said of s 191D(3); "Although the ILC is able to make grants of money to Aboriginal or Torres Strait Islander corporations on terms that would enable the corporation to acquire land without any further involvement by the ILC, sub-section (3) requires the ILC to give priority to performing its land acquisition functions by acquiring land and granting it as soon as possible to an Aboriginal or Torres Strait Islander corporation. In instances where the ILC considers it appropriate to make a grant of money rather than of land to an Aboriginal or Torres Strait Islander corporation, the ILC would usually be involved in the purchase as the agent. Only when either of those courses is impracticable or inadvisable for commercial or other reasons would the ILC be expected to perform its land acquisition functions in a different manner." 33 Her Honour responded to this submission by saying, at par 33; "There is, in my view, no warrant for referring to the Memorandum. Whilst the words "within a reasonable time" will vary in different circumstances and statutory settings, they are not obscure; see s 15AB Acts Interpretation Act 1901 (Cth). In any event the reference in the Memorandum does not assist in determining their meaning and the words it utilises are clearly different from those of the statute." 34 Even acknowledging that s 15AB(1)(a) of the Acts Interpretation Act is available to confirm that the meaning of "within a reasonable time" is the ordinary meaning conveyed by the text of s 191D(3) taking into account its context in the ATSIC Act and the purpose underlining that Act, we respectfully agree with her Honour that the Explanatory Memorandum does not assist to elucidate "within a reasonable time" in the present case. The phrases "as soon as possible" and "impracticable or inadvisable" introduce other relative concepts which each draw attention to the circumstances contemplated by the legislation as bearing on the time within which a grant can "possibly" be made. We can therefore detect no error in her Honour's declining to resort to s 15AB of the Acts Interpretation Act.

(e) Other matters 35 Bidjara Housing's written outline of submissions, in par 37, appear to formulate a complaint that the learned primary Judge had not decided a question as to the correctness of the ILC's understanding of the activities of a particular ATSIC corporation proposed as a grantee which may render that corporation ineligible for a grant. In respect of that point, her Honour said, at par 37; "It may be that the ILC's description of a corporation's activities which are thought to be inappropriate are too wide, as the applicant submits. It may not be possible for corporations to avoid the incursion of debt altogether, and there are other strategies available which can prevent the interest in land being sold or charged. The reality may be that it is the applicant's activities and the nature of its business with which the ILC is concerned, but I need not consider that question further. If the concern expressed were the only basis upon which the ILC withheld its decision, there might be some merit in the applicant's argument, but it is not." 36 It is clear from their terms as well as the context that those remarks of her Honour's were obiter. Moreover, as this point is not the subject of any ground of appeal, it is unnecessary for us to say anything more about it.

Conclusion 37 For these reasons, the appeal must be dismissed with costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court.

Associate: Dated: 27 February 2001 Counsel for the Appellant: Mr G Hiley QC with Mr P Flanagan

Solicitor for the Appellant: R F G Finlayson & Associates

Counsel for the First Respondent: Mr H Fraser QC with Mr M Swan

Solicitor for the First Respondent: Australian Government Solicitor

Date of Hearing: 12 February 2001

Date of Judgment: 27 February 2001