Bidjara Aboriginal Housing & Land Company Ltd v Indigenous Land Corporation

The Statutory Provisions and Guidelines 7 Section 191A(1) of the ATSIC Act establishes an Indigenous Land Corporation. The purposes of the Corporation, pursuant to s 191B, are: "(a) to assist Aboriginal persons and Torres Strait Islanders to acquire land; and (b) to assist Aboriginal persons and Torres Strait Islanders to manage indigenous-held land; so as to provide economic, environmental, social or cultural benefits for Aboriginal persons and Torres Strait Islanders." 8 The explanatory memorandum to the 1994 amendments to the Act stated that the establishment of the land fund, and an Indigenous Land Corporation, was in recognition of the fact that most indigenous people would not benefit from claims to native title. 9 The functions of the Indigenous Land Corporation are primarily those of land acquisition and land management (s 191C(a) and (b)). The land acquisition functions are dealt with under s 191D which relevantly provides: "Functions (1) The land acquisition functions of the Indigenous Land Corporation are as follows: (a) to grant interests in land to Aboriginal or Torres Strait Islander corporations; (b) to acquire by agreement interests in land for the purpose of making grants under paragraph (a); (c) to make grants of money to Aboriginal or Torres Strait Islander corporations for the acquisition of interests in land; (d) to guarantee loans made to Aboriginal or Torres Strait Islander corporations for the purpose of the acquisition of interests in land. … Performance of functions (3) For the purpose of the performance of the Indigenous Land Corporation's land acquisition functions, the Indigenous Land Corporation must give priority to the following: (a) pursuing a policy of: (i) acquiring interests in land and granting the interests to Aboriginal or Torres Strait Islander corporations; or (ii) in cases where the Indigenous Land Corporation grants money to Aboriginal or Torres Strait Islander corporations for the acquisition of interests in land - acting as the agent of the Aboriginal or Torres Strait Islander corporations in connection with those acquisitions; except where the circumstances make the pursuit of such a policy impracticable or inadvisable; (b) in a case where the Indigenous Land Corporation acquires an interest in land for the purpose of making a grant of the interest to an Aboriginal or Torres Strait Islander corporation - that grant being made within a reasonable time after that acquisition. …". 10 The focus of the applicant's submissions is upon paragraph (b) of subs (3). 11 Subsection (4) goes on to provide for searches of claims under the Native Title Act 1993 (Cth) with respect to the land in question. "(4) 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." 12 The disposal of an interest in land acquired under s 191D(1)(b) is provided by s 191J, which provides that where the ILC considers that it no longer needs to hold the interest for the purpose of making a grant to an Aboriginal or Torres Strait Islander corporation "within a reasonable time after that acquisition" it may dispose of the interest. 13 With respect to the performance of its functions, s 191F provides, amongst other things, that the ILC must give priority to ensuring that Aboriginal persons or Torres Strait Islanders derive social or cultural benefits as a result of the performance of the functions. 14 The Board of the ILC is obliged to prepare both a national and regional indigenous land strategy (ss 191N and P, Div 3). The content of each of the strategies is required to cover, but is not limited to, the acquisition of interests in land for the purpose of making grants of those interests to Aboriginal or Torres Strait Islander corporations and land management and environmental issues with respect to the indigenous-held land. In the performance of its functions the ILC must have regard to those strategies (s 191Q). 15 The ILC prepared both a national and regional strategy together with some guidelines. 16 The key principles identified as the basis of the national strategy, and which would be used by the ILC to develop policies, included the recognition of indigenous rights, prior land ownership and this history of dispossession. Section 1.4 - "Key Policies - Land Acquisition" sets a priority on acquiring land of cultural significance for indigenous peoples. This land is defined as that to which indigenous groups have traditional links, based on the customs and laws of the group in question; historical links which result from the impact of non-indigenous settlement of the country or contemporary links based on more recent recognition of indigenous rights and indigenous identity. This was to be contrasted to proposals in which the land itself was not the central component, such as commercial projects. The key policies provision continued: "The ILC will also give priority to land where a native title claim has not been lodged, and where it is unlikely that a claim would be successful. Consideration will also be given to other land rights mechanisms, available to assist indigenous people regain their land. Wherever possible, the ILC will aim to ensure that traditional owners (or people with traditional links to the land) become the title-holders under a corporation." 17 Later parts of the strategy reinforce this focus upon the importance of the relationship of indigenous people to land and addressing their dispossession of it (s 3). The regional strategy contains similar aims (Section 2.3.1). 18 Section 4 of the national strategy reinforces the priority given to land of cultural significance, in terms similar to that referred to above. Section 4.3 refers to the ILC's aim to complement other land acquisition laws, including the Native Title Act and to assist in the acquisition of land to those whose native title claim has been extinguished or did not succeed. It is to have regard to the likely success of such claims, in particular where it is considering taking a pastoral lease. 19 Both the national and regional strategies refer to the guidelines adopted by the ILC, which are said to provide greater detail of ILC policies, operations and procedures and the criteria which will be used to assess land proposals. The introduction to the guidelines state that they are intended to be read in conjunction with the strategies. Section 3 refers to the ILC using three sets of related criteria to assess land proposals in performing its land acquisition functions. The Strategic Criteria (cultural significance) (3A), used for the evaluation of land acquisition proposals, include: "1. The land has cultural significance for the indigenous groups seeking the land 2. The land is a priority to address dispossession and land needs in the region 3. The land would help meet the land needs of many of the people with attachment to the land 4. The traditional, historical or contemporary reasons for the significance of the land have been or can be demonstrated 5. The proposal has the support of traditional owners of the land (where identified and not members of the group) 6. There are no unresolved native title issues concerning the land" 20 Specific Criteria (viability and outcomes) (3B) lists: "… 2. The proposed ownership structure includes traditional owners of the land where they are identified" …". 21 The Regional Criteria (3C) enquires whether other methods of acquisition have been attempted.

ISSUES 22 In its original application the applicant sought orders declaring that it was an appropriate Aboriginal or Torres Strait Islander corporation for the purpose of a grant under the Act. The statement of claim earlier delivered asserted that it was the only Aboriginal corporation which, amongst other things, promoted the welfare of people in the Warrego region and could manage and hold the lease for the benefit of Aboriginal people in the area. In response to that the ILC, then the only respondent, joined issue as to whether the applicant was an appropriate grantee. As particulars of that allegation it claimed that the applicant was limited in its representative capacity. These issues, concerning the appropriateness of the applicant as a grantee, were abandoned and it was not necessary to have regard to much of the material which had been filed. The matter was set down for hearing on the basis that the applicant sought a declaration and an order limited in these terms: "1. A declaration that the Respondent has failed to fulfil its statutory obligations imposed by s 191D(3)(b) of the Aboriginal and Torres Strait Islander Commission Act 1989, in that it has failed to grant Lease No PH 10/4240(Lot 6 on Crown Plan CHS 25 County of Chesterton Parish of Tabor, area 71200ha, being land on Mount Tabor, Queensland) to an Aboriginal or Torres Strait Islander corporation, within a reasonable time. 2. An order pursuant to s 16(3)(a) of the Administrative Decisions (Judicial Review) Act 1977 requiring the Respondent to make a decision within 28 days to grant the lease to an Aboriginal and Torres Strait Islander Corporation." 23 The applicant's case now centres upon its submission that the time spoken of in s 191D(3)(b), within which the ILC is to make a grant to an Aboriginal or Torres Strait Islander corporation, is a relatively short period of time. It also submits that the ILC has, in other respects, acted unreasonably in refusing to make a grant to such a corporation or to it. 24 The ILC argues that a reasonable time has not elapsed and that it is reasonable to await the establishment of an Aboriginal or Torres Strait Islander corporation which represents Aboriginal persons with traditional links to the land the subject of the lease more fully than any existing corporation, and further that such a corporation be one which did not engage in any trading or business activity that might render it liable to be wound up. 25 The second respondent was joined to the proceeding prior to the hearing. It was given leave at the hearing to amend its defence, to allege that there was no consensus to those claiming to be Bidjara people as to the outcome of the native title claims, or to the divestment of the Mt Tabor property. It was accepted, during argument, that this fairly reflects the dissent amongst the various persons referred to above. 26 In one sense it may be said that the ILC has made a decision, although not specific to a grantee. It awaits the outcome of the native title proceedings and the identification of those persons and families having traditional links to the land the subject of the lease. If there is no Aboriginal or Torres Strait Islander corporation in existence of which they, or a number of them, are members, there would need to be one formed before a grant could be made. There is no time estimate given as to when an outcome is likely.

determination 27 Section 191D(3)(b) of the ATSIC Act does not prescribe a period within which the decision as to a grant is to be made, other than requiring that it be a priority of the ILC to do so within a reasonable time after acquisition of the interest in land. Section 7(1) Administrative Decisions (Judicial Review) Act 1977 provides that, in such circumstances, a person aggrieved by the failure of the decision-maker 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". 28 In Thornton v Repatriation Commission (1981) 52 FLR 285, 291 Fisher J said, in connexion with that provision: "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 … as appropriate or justified in the circumstances, or whether it was capricious and irrational". 29 A delay would be unreasonable, in his Honour's view, if "no reasonable man acting in good faith would in the circumstances have approved the delay" (290). His Honour's reasoning has been approved and applied: see 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]. 30 The applicant submits, and I accept, that a consideration of delay requires reference to the statutory context and purpose. The submissions for both the applicant and the ILC also proceed upon the basis that the guidelines are relevant to such a consideration. That seems to me to be correct. The statute obliges reference to the strategies and they in turn incorporate the guidelines. 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. 32 The applicant sought to rely upon a reference in the Explanatory Memorandum to the amending Act, the Land Fund and Indigenous Land Corporation (ATSIC Amendment) Bill 1994 (Part B), that: "…subsection (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. " 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 The applicant also placed reliance upon what it submitted was the scheme for acquisition set up by the guidelines, one where an applicant puts forward a proposal - a "Registration of Land Need" - which is assessed by the ILC and a decision made upon it. It submits that the guidelines therefore contemplate that the ILC would already have had regard to the appropriate criteria prior to acquisition and would have identified for it the grantee - the organisation who identified the land need. It further submitted that the guidelines also impliedly require the transfer of the land acquired to that organisation, but no basis for this can in my view be found in the guidelines and none was identified in submissions. The submissions hint at some form of estoppel as against the ILC when it acquires land following a proposal from a particular organisation, but that cannot be correct. It is also wrong in fact, since the ILC's assessment was clearly that the applicant was not an appropriate grantee. In that respect it could not be said to be acting capriciously or unreasonably by resiling from some earlier view it held that it was to be the grantee. It remains to add that, in any event, the guidelines themselves make plain that there is not proposed to be a scheme such as that outlined by the applicant. At s 2: "The ILC is not setting up an application-based system for land acquisition functions. It is the assessment of the ILC that a broad-based application system is not consistent with a strategic approach to land acquisition on a regional basis, nor is it consistent with the working relationship the ILC aims to establish with indigenous people and regional organisations …" 35 It was further submitted that the ILC acted upon a wrong view, namely that an Aboriginal or Torres Strait Islander corporation, or its members, must have traditional links to the land in question before a grant can be made. The ILC denies that it took such an approach. In expressing a preference for the grant of land to a corporation having some members who had traditional connections with the land, it was merely giving effect to the criteria in the guidelines and in particular Specific Criterion B2, which requires it to 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…". It adds, and I accept, that although that criteria is expressed to relate to acquisition it must, for consistency, also be relevant to grant. The criterion does give priority to persons having a traditional connexion and that appears to be the view taken by the ILC. 36 The applicant also argued that in posing a requirement, as appears from its defence, that a corporation must not be involved in a trading or business activity which might render it liable to be wound up, the ILC acted unreasonably in withholding a grant on this basis since no such requirement appears in the statute, strategies or guidelines. The ILC particularised the point of defence by defining "trading or business activity" as activities by which debts are incurred in respect of which default may lead to the liquidation of the company's assets and its winding up. It points to the statutory prohibition against the Aboriginal or Torres Strait Islander corporation grantee disposing or encumbering the interest in land (s 191S(2)) which, however, would not prevent it in fact doing so. It is apparent that it is attempting to give further effect to the statutory purpose in the land being held and used to the advantage of the group of indigenous persons in question and not merely utilised as an asset in a larger commercial undertaking. So much may also be gleaned from the references to an attachment to the land and to the communal use and ownership of it, in perpetuity (see in particular s 4.6, National Strategy). 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. 38 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. 39 The application will be dismissed with costs. I add that the order sought, that the ILC grant the lease to an Aboriginal or Torres Strait Islander corporation, would not have been appropriate, given its power to dispose of the lease, in the event that it considered it no longer required it for the purpose of a grant. I certify that the preceding thirty-nine numbered paragraphs is a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate: Dated: 25 October 2000 Counsel for the Applicant: Mr G Hiley QC with Mr P Flanagan

Solicitor for the Applicant: RFG Finlayson & Associates

Counsel for the First Respondent: Mr W Sofronoff QC with Mr M Swan

Solicitor for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: Mr Morris with Mr Lavery

Solicitor for the Second Respondent: Bottoms English

Date of Judgment: 25 October 2000