Dates v Roads and Traffic Authority of NSW

LEGISLATION CITED: Aboriginal Land Rights Act 1983

Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources [2008] FCAFC 3, (2008) 166 FCR 54 Australian Heritage Commission v Mount Isa Mines Ltd [1997] HCA 10, (1997) 187 CLR 297 Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5, (2000) 199 CLR 135 CASES CITED: Dowe v Commissioner of New South Wales Crime Commission [2007] NSWCA 296, (2007) 177 A Crim R 44 Gedeon v Commissioner of New South Wales Crime Commission [2008] HCA 43, (2008) 236 CLR 120 Minister for Natural Resources v New South Wales Aboriginal Land Council & Anor (1987) 9 NSWLR 154 Timbarra Protection Coalition v Ross Mining NL [1999] NSWCA 8, (1999) 46 NSWLR 55 Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422, (2004) 61 NSWLR 707

APPLICANT: Mr A Oshlack, agent SOLICITORS N/A

FIRST RESPONDENT: Mr A Galasso SC SOLICITORS Blake Dawson LEGAL REPRESENTATIVES: SECOND RESPONDENT: Dr J Griffiths SC SOLICITORS NSW Aboriginal Land Council

THIRD RESPONDENT: Dr J Griffiths SC SOLICITORS Bilbie Dan

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

WORIMI DATES v ROADS AND TRAFFIC AUTHORITY OF NSW AND ORS

JUDGMENT 1 HIS HONOUR: The applicant, Mr Worimi Dates, commenced these judicial review proceedings in class 4 of the Court's jurisdiction against the Roads and Traffic Authority of New South Wales (the first respondent), the New South Wales Aboriginal Land Council (the second respondent) and the Karuah Local Aboriginal Land Council (the third respondent). The applicant claims to be an "Aboriginal Traditional Owner" of certain land at Bulahdelah, which is vested in the Karuah Local Aboriginal Land Council. He also claims to be a member of the Karuah Local Aboriginal Land Council and the NSW Aboriginal Land Council. He anticipates and seeks to challenge the validity of a sale of the land by the Karuah Local Aboriginal Land Council, with the approval of the NSW Aboriginal Land Council, to the Roads and Traffic Authority for the purposes of the Bulahdelah Bypass. The basis of the challenge is that the land is of cultural significance to Aborigines and therefore its sale would breach s 40D(1)(a) of the Aboriginal Land Rights Act 1983.

PRELIMINARY ISSUE 2 The only matter before the Court at the moment is a preliminary issue concerning the construction of s 40D(1)(a) of the Act, which has nothing to do with the facts of the case. 3 The preliminary issue is whether the question posed by s 40D(1)(a) with respect to whether or not land is of cultural significance to Aborigines of the area is a jurisdictional fact, in the sense that it is a matter for the Court, on the evidence before it, to answer the question. 4 At stake is whether the answer to the question is ultimately a matter for the Court or for the Local Aboriginal Land Council, subject to the procedural requirements of s 40D.

5 The applicant indicated that if the preliminary issue were determined unfavourably to him, he would discontinue the proceedings. The preliminary issue is imperfectly expressed in paragraph 2A of the amended summons. (I note that paragraph 3 of the amended summons was, by consent, dismissed during the hearing).

LEGISLATION 6 Division 4 (ss 40 - 44A) of Part 2 of the Aboriginal Land Rights Act 1983 provides for the disposal and use of land vested in an Aboriginal Land Council. There is a general proscription against disposal of land except in accordance with that Division: s 40(1). The relevant exception is found in s 40D. Sections 40 and 40D provide: " 40 Disposal of land restricted

(1) The New South Wales Aboriginal Land Council or a Local Aboriginal Land Council may not sell, exchange, lease, dispose of, mortgage or otherwise deal with land vested in it, except in accordance with this Division. (2) Any sale, exchange, lease, disposal or mortgage of, or other dealing with, land in contravention of this Division is void. …"

40D Sale etc of land by Local Aboriginal Land Council

(1) A Local Aboriginal Land Council may, subject to the provisions of any other Act, sell, exchange, mortgage or otherwise dispose of land vested in it if: (a) at a meeting of the Council specifically called for the purpose (being a meeting at which a quorum was present) not less than 80 per cent of the members of the Council present and voting have determined that the land is not of cultural significance to Aborigines of the area and should be disposed of, and (b) the New South Wales Aboriginal Land Council has approved of the proposed disposal, and (c) (Repealed) (d) in the case of the disposal of land transferred to an Aboriginal Land Council under section 36, both the Crown Lands Minister referred to in that section and the Minister have been notified of the proposed disposal. (2) A certificate in the prescribed form (if any), purporting to be signed by the Chairperson of the New South Wales Aboriginal Land Council and certifying that the disposal by the Local Aboriginal Land Council of land specified in the certificate does not contravene this section, is conclusive evidence of that fact in favour of any person (whether or not the person is the person to whom the certificate was issued) except a person who had notice, when the certificate was issued, that the disposal of the land did contravene this section. (3) For the purposes of this section, land is of cultural significance to Aborigines if the land is significant in terms of the traditions, observances, customs, beliefs or history of Aborigines." 7 The Act contains the following recitals: "(1) Land in the State of New South Wales was traditionally owned and occupied by Aborigines: (2) Land is of spiritual, social, cultural and economic importance to Aborigines: (3) It is fitting to acknowledge the importance which land has for Aborigines and the need of Aborigines for land: (4) It is accepted that as a result of past Government decisions the amount of land set aside for Aborigines has been progressively reduced without compensation." 8 The purposes of the Act are set out in s 3: "(a) to provide land rights for Aboriginal persons in New South Wales, (b) to provide for representative Aboriginal Land Councils in New South Wales, (c) to vest land in those Councils, (d) to provide for the acquisition of land, and the management of land and other assets and investments, by or for those Councils and the allocation of funds to and by those Councils, (e) to provide for the provision of community benefit schemes by or on behalf of those Councils." 9 The recognition of the importance of land to Aborigines and the need to provide them with a greater degree of self reliance and economic security by conferring upon them important rights with respect to land were articulated in the second reading speech by the Hon D P Landa in the Legislative Council for the Bill which became the Aboriginal Land Rights Act 1983 (Hansard, 30 March 1983, p. 5370): "…[the] Government has made a clear, unequivocal decision that land rights for Aborigines is the most fundamental initiative to be taken for the regeneration of Aboriginal culture and dignity, and at the same time it lays the basis for a self-reliant and more secure economic future for our continent's Aboriginal custodians..." 10 The courts have emphasised the important role of the Act in providing Aboriginal people with important rights with respect to land. In Minister for Natural Resources v New South Wales Aboriginal Land Council & Anor (1987) 9 NSWLR 154, Kirby P held (at 157) that: "The Aboriginal Land Rights Act 1983 is beneficial and remedial legislation. Clearly, it was enacted to give important rights in Crown land to the representatives of the Aboriginal people…Against such a background, and given its purposes and context with other land rights and similar remedial legislation, the Aboriginal Land Rights Act 1983 should be given by the courts the most beneficial operation compatible with its language." LEGAL PRINCIPLES 11 The leading authorities on the concept of jurisdictional fact are the High Court decisions in Australian Heritage Commission v Mount Isa Mines Ltd [1997] HCA 10, (1997) 187 CLR 297, Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5, (2000) 199 CLR 135 and Gedeon v Commissioner of New South Wales Crime Commission [2008] HCA 43, (2008) 236 CLR 120; the Court of Appeal decisions in Timbarra Protection Coalition v Ross Mining NL [1999] NSWCA 8, (1999) 46 NSWLR 55, Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422, (2004) 61 NSWLR 707 and Dowe v Commissioner of New South Wales Crime Commission [2007] NSWCA 296, (2007) 177 A Crim R 44; and the Full Federal Court decision in Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources [2008] FCAFC 3, (2008) 166 FCR 54. The Court of Appeal decision in Dowe was overturned by the High Court in Gedeon (there were joint appeals by Dowe and Gedeon). However, the High Court in Gedeon did not disturb the general principles in Dowe, nor in Timbarra and Woolworths to neither of which the High Court referred.

12 In my opinion, the authorities support the following propositions concerning the concept of jurisdictional fact: (a) the expression "jurisdictional fact" generally "is used to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question. If the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker": Gedeon at [43], similarly see Enfield at [28]; (b) parliament can make any fact a jurisdictional fact by an intention that it must exist in fact (objectivity) and that its absence or presence will invalidate action under the statute (essentiality): Timbarra at [37], Dowe at [30]; (c) the normal rules of statutory construction apply when determining whether a factual reference is a jurisdictional fact: Timbarra at [39]; (d) where the process of construction leads to the conclusion that parliament intended that the primary decision-maker could authoritatively determine the existence or non-existence of the fact, then a court cannot itself determine the existence or non-existence of the fact, although (if it is in issue) the court will inquire, for example, as to whether the decision was manifestly unreasonable in the Wednesbury sense: Timbarra at [41]; (e) If the factual reference is preliminary to the exercise of statutory power, it is likely to be a jurisdictional fact: Timbarra at [44]. There is a distinction between a fact that is an essential preliminary (ie legally antecedent) to the decision-making process and a fact to be adjudicated upon in the course of the decision-making process: Timbarra at [46]. (f) the existence of a jurisdictional fact is often signalled by expressions such as "where X exists" or "when X exists" or "if X exists", then a person is empowered or obliged to act or refrain from action: Anvil Hill at [21]; (g) where a factual reference appears in a statutory formulation containing words involving the mental state of the primary decision-maker - for example, "opinion", "belief", satisfaction" - the construction is often, although not necessarily, against a conclusion of jurisdictional fact, other than in the sense that the mental state is a jurisdictional fact: Timbara at [42]; Enfield at [34]; Woolworths at [13], [25]; Anvil Hill at [21]; (h) the fact that a judgment is required on a matter of potentially significant disputation suggests that it is less likely to be intended to be an objective fact, because it is, characteristically, a matter on which reasonable minds may differ: Timbarra at [89]; (i) the scope and purpose of the legislative scheme may be an indicator of whether or not a factual reference is a jurisdictional fact: Woolworths at [30]; (j) a jurisdictional fact may be suggested by a prohibition of conduct unless a specified fact exists: Enfield at [34], Woolworths at [44]; (k) the location of a factual reference in a statutory formulation concerned with the requirements of an application is a significant factor suggesting that the factual reference is jurisdictional: Timbarra at [51]; APPLICANT'S SUBMISSIONS 13 The applicant submits that:

(a) it is absurd if a Local Aboriginal Land Council can dispose of land that, objectively, is of cultural significance to Aborigines in the area; (b) the purposes of the Aboriginal Land Rights Act 1983 expressed in s 3 do not include disposal of land of cultural significance to Aborigines in the area; (c) disposal of land that is of cultural significance to Aborigines in the area is contrary to the purpose of the Act in s 3(a) "to provide land rights for Aboriginal persons in New South Wales". Aboriginal persons include relevant Aboriginal "Traditional Owners" who are the only Aborigines with authority to decide whether or not land is of cultural significance to Aborigines. (d) it is implicit in s 40D that land determined to be disposed of must not be of cultural significance to Aborigines in the area. DISCUSSION 14 Section 40D mandates in direct terms three criteria, the satisfaction of which enlivens the exercise of the statutory power of disposal of land vested in a Local Aboriginal Land Council. First, that at a meeting specifically called for the purpose (at which a quorum was present) not less than 80 per cent of its members present and voting have determined that the land is not of cultural significance to Aborigines of the area and should be disposed of. Secondly, that the NSW Aboriginal Land Council has approved of the proposed disposal. Thirdly, in the case of the disposal of land transferred to an Aboriginal Land Council under s 36, the Ministers referred to in s 40D(1)(d) have been notified of the proposed disposal. These are conditions of jurisdiction.

15 Section 40D does not expressly mandate a further independent criterion that the land is objectively not of cultural significance to Aborigines of the area. The question is whether that is nevertheless a jurisdictional fact. 16 The following considerations suggest that the factual reference in s 40D(1) to land "not of cultural significance to Aborigines of the area" is not a jurisdictional fact.

17 First, that fact is to be determined by the Local Aboriginal Land Council in the course of its decision-making process and the factual reference occurs in the statutory formulation of its power. It is not expressed as preliminary (legally antecedent) to the decision-making process.

18 Secondly, the factual reference requires 80 per cent of the members of the Local Aboriginal Land Council present and voting to form opinions that the land is not of cultural significance to Aborigines of the area. Such a mental state suggests a construction against a conclusion of jurisdictional fact, other than in the sense that the mental state is a jurisdictional fact.

19 Thirdly, an element of fact and degree and of judgment is required on a matter of potentially significant disputation. The 80 per cent voting support requirement for the determination that the land is not of cultural significance to Aborigines is an acknowledgement that it is a matter on which reasonable minds may differ.

20 Fourthly, an affirmative answer to the question whether the factual reference is a jurisdictional fact requires s 40D(1)(a) to be construed as if (for example) it read: "A Local Aboriginal Land Council may, subject to the provisions of any Act, sell, exchange, mortgage or otherwise dispose of land vested in it that is not of cultural significance to Aborigines of the area if (a) at a meeting of the council specifically called for the purpose (being a meeting at which a quorum is present) not less than 80 per cent of the members of the council present and voting have determined that the land should be disposed of". This is, to say the least, a strained construction.

21 Fifthly, the legislative scheme sits uncomfortably with a conclusion that the factual reference is a jurisdictional fact. The legislative scheme is to remedy past dispossession of Aborigines by vesting land in democratically constituted, self-reliant Local Aboriginal Land Councils with autonomy in decisions whether to dispose of the land, subject to the specific procedural requirements of s 40D. The democratic nature of Local Aboriginal Land Councils appears from s 54 of the Act which provides for membership of adult Aborigines who reside within the area or who have a sufficient association with the area (as determined by voting members of the Council at a meeting). In the context of an Act which promotes Aboriginal land rights, self-reliance and substantial autonomy, it would be a patronising outcome if the determination of a court as to the cultural significance of land to Aborigines in an area were ultimately to replace the contrary statutory determination of that question by a large majority of Aboriginal members (present and voting) of a Local Aboriginal Land Council approved by the New South Wales Aboriginal Land Council.

22 As submitted by the respondents, when viewed in the context of the Act as a whole, the specific requirements of s 40D evince a legislative recognition that: (a) the determination of whether land vested in a Local Aboriginal Land Council is culturally significant to Aborigines of the area is a determination most appropriately made by Aborigines who are voting members of that council, who can make this assessment in accordance with their particular local traditions, observances, customs, beliefs or history; and (b) because even within a particular Aboriginal group (such as a Local Aboriginal Land Council) whose members share a similar set of traditions, observances, customs, beliefs or history, opinions may still reasonably differ as to whether land is culturally significant, the determination is best made by requiring a vote by a clear majority (at least 80 per cent) of members of the Local Aboriginal Land Council in which the land is vested present and voting at a meeting called to determine this issue. 23 A broad analogy may be drawn with Australian Heritage Commission v Mount Isa Mines Ltd [1997] HCA 10, (1997) 187 CLR 297. In that case, the High Court held that a decision of the Australian Heritage Commission to record a place in the Register of the National Estate was not a jurisdictional fact. The Australian Heritage Commission Act 1975 (Cth) required the Commission to keep a Register of the National Estate and to enter in the Register a place that is not in the Register "where the commission considers" that the place "should be recorded as part of the national estate". The "national estate" was defined to consist of those places, being components of the natural environment of Australia or the cultural environment of Australia, that have aesthetic, historic, scientific or social significance or other special value for future generations as well as for the present community". The High Court upheld the dissenting opinion of Black CJ in the Full Federal Court, who concluded that the power of the Commission to enter a place in the Register depended upon the Commission's own view of the matter rather than the objective ascertainment of a jurisdictional fact, the identity of the place in question as part of the national estate. Black CJ concluded (at 304): "In determining, according to law, whether or not a place is part of the national estate, the Commission will of course need to make a proper assessment to determine whether a place is, in fact, within the definition of the national estate in s 4. In doing so it will need to make assessments and value judgments but its ultimate task is to determine whether, in fact, a place is within the definition. The final determination of that question is however one that is committed by the Act to the Commission. It is not, in my view, a jurisdictional fact." 24 The High Court considered that the statutory scheme provided guidance (at 306): "Those detailed mechanisms for public consultation and consideration by the Commission provide guidance on the ultimate issue in this litigation. They suggest that, on the proper construction of the Act, the Commission is given the power conclusively to determine whether or not a place should be recorded as part of the national estate and its determination of that question is not subject to review provided the Commission otherwise conducts itself in accordance with the law." 25 The statutory scheme in that case, which included public participation, is broadly comparable with the statutory scheme in the present case which includes participatory democracy through membership of a Local Aboriginal Land Council. CONCLUSION 26 In my opinion, the above considerations favour the conclusion that the question posed by s 40D(1)(a) of the Aboriginal Land Rights Act 1983 with respect to whether or not land is of cultural significance to Aborigines of the area is not a jurisdictional fact. The final determination of that question is committed by the Act to the Local Aboriginal Land Council with the approval of the New South Wales Aboriginal Land Council and is not subject to judicial review by the Court provided that both Councils otherwise conduct themselves in accordance with the law. 27 The orders of the Court are as follows:

1. Paragraph 2A of the amended summons is dismissed. 2. The costs of the preliminary issue are reserved. 3. The matter is listed before the List Judge for directions on 5 June 2009.

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