Ellis v Central Land Council - [2018] FCA 35 - FCA 2018 case summary — Zoe

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Ellis v Central Land Council

[2018] FCA 35

Federal Court of Australia|2018-02-02|Before: Mortimer J

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Source facts

Court

Federal Court of Australia

Decision date

2018-02-02

Before

Mortimer J

Source

Original judgment source is linked above.

Judgment (57 paragraphs)

[1]

INTRODUCTION 1 This proceeding concerns the grant, in October 2016, of four leases and a licence over Aboriginal land as that term is defined in s 3 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (Land Rights Act). The first and second applicants (Ms Marie Elena Ellis and Ms Roseanne Philomena Ellis respectively) live in the community of Amoonguna in the Northern Territory and are part of that community's traditional landholding group under the Land Rights Act. The third applicant (the Imwernkwernhe Community Limited or "ICL") is a body corporate established by a number of traditional owners from the Amoonguna community. The first and fifth respondents, the Central Land Council (CLC) and the Amoonguna Aboriginal Land Trust (AALT) respectively, are the entities whose decisions and conduct is impugned in the proceeding. The second, third, fourth and sixth respondents (the Northern Territory, MacDonnell Regional Council, Central Australian Aboriginal Congress Aboriginal Corporation and Indigenous Essential Services Pty Ltd (IES) respectively) are the lessees/licensee of the leases and licence granted by the AALT, at the discretion of the CLC. 2 The originating application also named three individual members of the CLC as respondents, however at the commencement of the trial, the proceeding was discontinued as against those respondents. 3 The phrase "Amoonguna community" is a defined phrase in the applicants' pleadings. The definition essentially limits the phrase to the way it is used in the Land Rights Act (traditional owners of the land and other Aboriginal people with an interest in the land). In these reasons, I use the phrase more colloquially to include those two groups, but also to include all those people who may be living in the community of Amoonguna. 4 On 16 November 2016, the applicants commenced this proceeding seeking relief with respect to two matters. Those matters are: (1) A direction given by the CLC under the Land Rights Act to the AALT to grant leases and a licence over various parcels of land within the Amoonguna community to the Northern Territory, the Council, Congress and the IES; and (2) The grant of those leases by the Land Trust to each of the Northern Territory, the Council, Congress and the IES. 5 Two events which assume significance in the factual narrative are first, a meeting on 12 October 2016 of traditional owners and other Aboriginal people, along with the CLC and other Amoonguna residents with interests in the Amoonguna lands; and second, a meeting on 19 October 2016 of the CLC Committee delegated to make the decision about whether or not to give a direction to the AALT to grant the impugned leases and licence. 6 The issues raised by the applicants' claims have considerable legal and factual complexity. However, not all of those complex issues need to be finally determined, given the view I have taken of the CLC's decision-making and the construction and operation of the Land Rights Act. 7 For the reasons that follow, I consider the applicants are entitled to relief only in one respect, relating to the execution of the leases and licence. I have formed some preliminary views about the kind of relief that is appropriate and have set those views out in these reasons. The parties will be given an opportunity to make submissions about the appropriate form of relief. The application is otherwise to be dismissed.

[2]

The role of the CLC in this proceeding 8 There was some debate between the applicants and the CLC about the latter's role in this proceeding. The Northern Territory and IES took an active role as a contradictor for the two leases in which they had an interest. Congress and the Council elected not to do the same, and appeared to have relied on the CLC, the Northern Territory and IES to be the active contradictors. Council and Congress played no active part in the proceeding. The Council appeared briefly at the hearing and informed the Court it adopted the submissions made on behalf of the CLC and the Northern Territory, while Congress did not appear at the hearing and informed chambers that it "has appeared only as an observer to date and will abide the result of these proceedings". Although the Northern Territory played an active role, it also often adopted the submissions made by the CLC. There were some points of difference, and the Northern Territory made at least one important additional submission, about the operation of s 14 of the Land Rights Act. 9 The CLC however, was the decision-maker. Its role in a judicial review would usually accord with the principles set out in R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; 144 CLR 13. 10 That is certainly how a Land Council's role in other judicial review proceedings has been viewed. In Myoung v Northern Land Council [2006] FCA 1130; 154 FCR 324 at [14], Mansfield J said: The NLC took the view that it should not play an active role in these proceedings except in one respect, because there is a proponent and an opponent to the claims made. That was a proper approach: R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 33-35. It made submissions concerning its powers and the proper construction of the ALRA. It took that position because there was no intervention by the Attorney-General or other public officer to inform the Court on those issues, beyond the particular interests of the parties. In my view, the NLC acted consistently with the decision in Hardiman in adopting that role: see, eg TXU Electricity Ltd v Offıce of the Regulator-General (2001) 3 VR 93 at [44]. 11 Ultimately, the applicants did not press for the CLC to be restrained, formally or informally, from adopting the role it clearly wished to play. Its submissions were of assistance to the Court, however it conducted the proceeding in a truly adversarial way - making a large number of objections to evidence, including to oral evidence, objecting to the course the applicants sought to adopt, and filing a lengthy notice to admit rather than agreeing facts as the Court had invited the parties to do. 12 The Northern Territory made brief written submissions to the effect that the CLC was the appropriate contradictor, because of its greater level of knowledge of the course of events, which none of the lessees possessed. That submission is factually correct, but it does not address the principles which lie behind the Hardiman approach. 13 Despite the CLC's role as the decision-maker and its protective functions under s 23 in the respect of traditional Aboriginal owners, the CLC cross-examined traditional Aboriginal owners in defence of its own decision-making. The decision whether to assume a role as an active and adversarial contradictor in a proceeding such as this should be the subject, in the future, of careful consideration by a Land Council. The Court also bears some responsibility for not having taken a more active role early in this proceeding to ascertain whether the CLC should have been held to a position closer to Hardiman than the one it wished to adopt. 14 Accordingly, I have adopted the approach of referring to submissions made on behalf of the CLC, although that should be understood as submissions adopted by the Council and the Northern Territory, unless the Northern Territory indicated particular disagreement with a CLC submission. I also note here that the CLC and AALT were jointly represented by the same counsel and made joint submissions - where I refer to the CLC's submissions, that includes the AALT's position. Likewise, the Northern Territory and IES were jointly represented by the same counsel and also made joint submissions. Where I refer to the Northern Territory's submissions, that includes the IES' position.

[4]

The Land Rights Act provisions 16 The Land Rights Act establishes a process through which Aboriginal people in the Northern Territory can secure rights of a proprietary kind in the land over which they have "affiliations" in accordance with traditional law and custom. The statutory vehicle through which proprietary rights are held is a Land Trust. The process of making grants of Aboriginal land under the Land Rights Act is not relevant to this proceeding but its core aspects are found in ss 5, 10, 11 and 12 of the Land Rights Act, together with specific provisions for particular lands and communities. The process is concerned with the identification of who are the "traditional Aboriginal owners" (as defined in s 3(1)) for the land, and whether other Aboriginal people have interests in the area which should be recognised, or affect a grant to the traditional owners. The Amoonguna community has held land as a result of this process since 1978, through the AALT. 17 The current version of the Land Rights Act is the same version as that in force on 19 October 2016, the date of the CLC's impugned decisions. The provisions I set out here are taken from this version. 18 Section 4 of the Land Rights Act provides for the establishment of Aboriginal Land Trusts. The fifth respondent, the AALT, was established under this provision. Those parts of s 4 which relate to the use of the seal of the AALT assume some importance in this proceeding. Section 4 relevantly provides: 4 Land Trusts (1) The Minister may, by notice published in the Gazette, establish Aboriginal Land Trusts to hold title to land in the Northern Territory for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of the land concerned, whether or not the traditional entitlement is qualified as to place, time, circumstance, purpose or permission, and, subject to subsections 10(1) and (2), shall so establish Land Trusts to hold the land described in Schedule 1. … (1AB) To avoid doubt, the Minister may establish a Land Trust under subsection (1) for the purpose of it holding land that is to be transferred to it under subsection 19(4). … Legal status of Land Trust (3) A Land Trust: (a) is a body corporate, with perpetual succession; (b) shall have a common seal; (c) subject to this Part, may acquire, hold and dispose of real and personal property; and (d) may sue and be sued in its corporate name. Common seal of Land Trust (4) The common seal of a Land Trust shall be kept by a member of the staff of the Land Council in the area of which the Land Trust holds land who has been authorized by the Land Council for the purpose. (5) The common seal of a Land Trust is to be affixed to a document only with a written authority signed by: (a) if the Trust consists of 4 or more members - at least 3 of those members; or (b) if the Trust consists of 3 members - at least 2 of those members. Note: Section 7 deals with the membership of a Land Trust. (6) All courts, judges and persons acting judicially shall take notice of the common seal of a Land Trust affixed to a document and shall presume that it was duly affixed. Notices are not legislative instruments (7) A notice under subsection (1), (1AC) or (2B) is not a legislative instrument. 19 The function of Land Trusts and the limitations on the way their functions must be performed are set out in s 5: 5 Functions of Land Trusts (1) The functions of a Land Trust are: (a) to hold title to land vested in it in accordance with this Act; (b) to exercise its powers as owner of land referred to in paragraph (a) for the benefit of the Aboriginals concerned; and (c) where the Land Trust is named as the grantee of land in a deed of grant held in escrow by a Land Council - to acquire, as and when practicable, the estates and interests of other persons in the land with a view to the surrender to the Crown of those estates and interests and the delivery to the Land Trust of the deed of grant held by the Land Council. (2) A Land Trust: (a) shall not exercise its functions in relation to land held by it except in accordance with a direction given to it by the Land Council for the area in which land is situated; and (b) where such a direction is given to it - shall take action in accordance with that direction. (3) The Lands Acquisition Act 1989 does not apply to the acquisition by a Land Trust, under this Act, of an estate or interest in land. 20 Separately, Land Councils are established under s 21 of the Land Rights Act. Section 22 provides that these Councils are bodies corporate: 22 Land Council to be body corporate etc. (1) A Land Council: (a) is a body corporate, with perpetual succession; (b) shall have a common seal; (c) may acquire, hold and dispose of real and personal property; and (d) may sue and be sued in its corporate name. Note: The Public Governance, Performance and Accountability Act 2013 applies to a Land Council. That Act deals with matters relating to corporate Commonwealth entities, including reporting and the use and management of public resources. (2) All courts, judges and persons acting judicially shall take notice of the common seal of a Land Council affixed to a document and shall presume that it was duly affixed. 21 The functions of Land Councils are set out in s 23. In particular, this provision makes clear that Land Councils are to consult with traditional Aboriginal owners and communities in respect of Aboriginal land, and in some circumstances to act only after the consent of traditional owners, as a group, has been given (see s 23(3)). 23 Functions of Land Council (1) The functions of a Land Council are: (a) to ascertain and express the wishes and the opinion of Aboriginals living in the area of the Land Council as to the management of Aboriginal land in that area and as to appropriate legislation concerning that land; and (b) to protect the interests of traditional Aboriginal owners of, and other Aboriginals interested in, Aboriginal land in the area of the Land Council; and (ba) to assist Aboriginals in the taking of measures likely to assist in the protection of sacred sites on land (whether or not Aboriginal land) in the area of the Land Council; and (c) to consult with traditional Aboriginal owners of, and other Aboriginals interested in, Aboriginal land in the area of the Land Council with respect to any proposal relating to the use of that land; and (d) where the Land Council holds in escrow a deed of grant of land made to a Land Trust under section 12: (i) to negotiate with persons having estates or interests in that land with a view to the acquisition of those estates or interests by the Land Trust; and (ii) until those estates or interests have been so acquired, to negotiate with those persons with a view to the use by Aboriginals of the land in such manner as may be agreed between the Land Council and those persons; and (e) to negotiate with persons desiring to obtain an estate or interest in land in the area of the Land Council: (i) where the land is held by a Land Trust - on behalf of traditional Aboriginal owners (if any) of that land and of any other Aboriginals interested in the land; and (ii) where the land is the subject of an application referred to in paragraph 50(1)(a) - on behalf of the traditional Aboriginal owners of that land or on behalf of any other Aboriginals interested in the land; and (ea) to assist Aboriginals in the area of the Land Council to carry out commercial activities (including resource development, the provision of tourist facilities and agricultural activities), in any manner that will not cause the Land Council to incur financial liability or enable it to receive financial benefit; and (eb) for land that is a community living area and in the area of the Land Council - to assist the owner of the land, if requested to do so, in relation to any dealings in the land (including assistance in negotiating leases of, or other grants of interests in, the land); and (f) to assist Aboriginals claiming to have a traditional land claim to an area of land within the area of the Land Council in pursuing the claim, in particular, by arranging for legal assistance for them at the expense of the Land Council; and (fa) to negotiate, and enter into agreements, as necessary, for the purposes of subsection 70(4); and (g) to compile and keep: (i) a register recording the names of the members of the Land Council; and (ii) a register recording the names of the members of the Land Trusts holding, or established to hold, Aboriginal land in its area and descriptions of each area of such Aboriginal land; and (h) to supervise, and provide administrative or other assistance for, Land Trusts holding, or established to hold, Aboriginal land in its area; and (i) such other functions as are prescribed by the regulations. (2) A Land Council may, with the approval of the Minister, perform any functions that may be conferred on it by a law of the Northern Territory, including, without limiting the foregoing, functions in relation to: (a) the protection of sacred sites; (b) access to Aboriginal land; and (c) schemes for the management of wildlife on Aboriginal land. (3) In carrying out its functions with respect to any Aboriginal land in its area, a Land Council shall have regard to the interests of, and shall consult with, the traditional Aboriginal owners (if any) of the land and any other Aboriginals interested in the land and, in particular, shall not take any action, including, but not limited to, the giving of consent or the withholding of consent, in any matter in connexion with land held by a Land Trust, unless the Land Council is satisfied that: (a) the traditional Aboriginal owners (if any) of that land understand the nature and purpose of the proposed action and, as a group, consent to it; and (b) any Aboriginal community or group that may be affected by the proposed action has been consulted and has had adequate opportunity to express its view to the Land Council. (4) The reference in paragraph (1)(e) to an estate or interest in land includes a reference to a licence in respect of that land. 22 The term "traditional Aboriginal owners" is defined in s 3(1) of the Land Rights Act to mean: traditional Aboriginal owners, in relation to land, means a local descent group of Aboriginals who: (a) have common spiritual affiliations to a site on the land, being affiliations that place the group under a primary spiritual responsibility for that site and for the land; and (b) are entitled by Aboriginal tradition to forage as of right over that land. 23 The powers of Land Councils are set out in s 27: 27 Powers of Land Council (1) Subject to this Act, a Land Council may do all things necessary or convenient to be done for or in connexion with the performance of its functions and, without limiting the generality of the foregoing, may: (a) employ staff; (b) obtain the advice and assistance of persons who are expert in any matter with which the Council is concerned (including assistance in connection with the administration of the affairs of the Council); (c) give lawful directions to Land Trusts holding land in its area concerning the performance of their functions; and (d) receive moneys due and owing to Land Trusts holding, or established to hold, land in its area and give a valid discharge for those moneys. (1A) A Land Council may, on the request of an Aboriginal and Torres Strait Islander corporation that has received an amount of money from the Council under this Act, provide administrative or other assistance to the corporation. (2) Where a Land Council employs a person as a staff member, the terms and conditions of the person's employment are such as are from time to time determined by the Land Council. (2A) Where a Land Council obtains the advice and assistance of a person under paragraph (1)(b), the terms and conditions of the engagement of that person are such as are approved by the Land Council. (3) A Land Council shall not, without the approval of the Minister, enter into, or permit a Land Trust holding land in its area to enter into, a contract involving the payment or receipt of an amount exceeding $1,000,000, or, if a higher amount is prescribed, that higher amount. (4) The Minister shall not give an approval under subsection (3) with respect to entering into a contract relating to Aboriginal land unless the Minister is satisfied that the Land Council concerned has, in taking the action that has resulted in the proposed contract, complied with any duty imposed on it by subsection 23(3). 24 Land Councils may appoint a committee of its members to assist the Council with the performance of its functions or the exercise of its powers, in accordance with s 29A: 29A Committees (1) A Land Council may, by notice in writing, appoint a committee or committees of its members to assist the Council in relation to the performance of any of its functions or the exercise of any of its powers. Content of notice (2) The notice must specify: (a) the name of each committee member; and (b) if the committee is appointed in relation to a particular area of the Land Council - that area. Number of committee members (3) A committee must consist of at least 7 members or such other number as is prescribed by the regulations. Rules for conduct of meetings (4) The Land Council must make written rules providing for and in relation to the convening of meetings, and the procedure for the conduct of meetings, of a committee appointed under this section. The rules are not a legislative instrument. (5) The Land Council must give a copy of the rules made under subsection (4) to the Minister. Minutes (6) A committee must keep minutes of its meetings. Inspection (7) The Land Council must allow: (a) the traditional Aboriginal owners of Aboriginal land in the area of the Council; or (b) any Aboriginal living in the area of the Council; to inspect, at any reasonable time without charge: (c) rules made under subsection (4); or (d) the minutes of committee meetings (other than any part of the minutes that relates to an excludable matter). 25 Land Councils may delegate their functions and powers to a committee in accordance with s 28(2): Delegation to Council committee (2) A Land Council may, in writing under its common seal, delegate to a committee appointed under section 29A any of the Council's functions or powers under this Act other than the following: (aa) the making of a request under section 21E; (a) the making of determinations under section 35; (b) any function or power prescribed by the regulations. 26 In relation to dealings with land occupied by the Crown, s 14 provides particular entitlements to the Crown: 14 Occupation etc. by the Crown etc. of Aboriginal land vested in Land Trust (1) Where, on the vesting in a Land Trust of an estate in fee simple in land, the land is being occupied or used by the Crown or, with the licence or permission of the Crown, by an Authority, the Crown or the Authority is entitled to continue that occupation or use for such period as the land is required by the Crown or the Authority. (2) During the period for which, by virtue of subsection (1), the Crown or an Authority is entitled to the occupation or use of land, any buildings and improvements on that land shall be deemed to be the property of the Crown or the Authority. (3) Nothing in this section prevents the granting by a Land Trust of a lease of land referred to in subsection (1) to the Commonwealth, the Northern Territory or an Authority, as the case may be, and, if such a lease is granted, the land ceases to be land to which this section applies. (3A) Nothing in this section prevents a Land Trust granting a lease of land to an approved entity under section 19A that includes land referred to in subsection (1) of this section. (3B) If land (the applicable land): (a) is of a kind referred to in subsection (1); and (b) is part of land that is leased to an approved entity under section 19A; nothing in this section prevents the approved entity granting a sublease of the applicable land to the Commonwealth, the Northern Territory or an Authority, as the case may be. (3C) If such a sublease is granted, the applicable land ceases to be land to which this section applies. (4) This section does not apply in relation to an occupation or use of land that is authorized by the Atomic Energy Act 1953 or any other Act authorizing mining for minerals and this section does not prejudice the operation of the Atomic Energy Act 1953 or that other Act, as the case may be. 27 Within this context of the functions of the Land Trusts and Land Councils, the requirements to consult with traditional Aboriginal owners and the occupation of land by the Crown, s 19 of the Land Rights Act provides for the dealings and disposals of interests in land by Land Trusts. It commences with a prohibition about dealing with Aboriginal land and then sets out the circumstance in which that prohibition does not apply. Section 19 relevantly states: 19 Dealings etc. with interests in land by Land Trusts (1) Except as provided by this section or section 19A or 20, a Land Trust must not deal with or dispose of, or agree to deal with or dispose of: (a) any estate or interest in land vested in it; or (b) the land described under the heading "JABIRU" in Part 4 of Schedule 1. … (2) With the consent, in writing, of the Minister, and at the direction, in writing, of the relevant Land Council, a Land Trust may, subject to subsection (7), grant an estate or interest in land vested in it to an Aboriginal or an Aboriginal and Torres Strait Islander corporation: (a) for use for residential purposes by: (i) the Aboriginal and his or her family; or (ii) an employee of the Aboriginal or the corporation, as the case may be; (b) for use in the conduct of a business by the Aboriginal or the corporation, not being a business in which a person who is not an Aboriginal has an interest that entitles him or her to a share in, or to a payment that varies in accordance with, the profits of the business; or (c) for any community purpose of the Aboriginal community or group for whose benefit the Land Trust holds the land. (3) With the consent, in writing, of the Minister, and at the direction, in writing, of the relevant Land Council, a Land Trust may, subject to subsection (7), grant an estate or interest in land vested in it to the Commonwealth, the Northern Territory or an Authority for any public purpose or to a mission for any mission purpose. (3A) If a Land Trust is considering granting a lease under subsection (3), the relevant Land Council may, by notice in writing given to the Minister, request that, if the Land Trust and the Commonwealth intend to enter into the lease, the Executive Director: (a) enter into the lease on behalf of the Commonwealth; and (b) administer the lease. (3B) If the Minister receives a request under subsection (3A), the Minister must, by notice in writing given to the relevant Land Council, agree or refuse to agree to the request. (3C) A notice given under subsection (3A) or (3B) is not a legislative instrument. … (4) With the consent, in writing, of the Minister and at the direction, in writing, of the relevant Land Council, a Land Trust may: (b) transfer to another Land Trust, or surrender to the Crown, the whole of its estate or interest in the whole, or any part of, the land vested in it. Note: See also section 20A (which deals with the application of the law of the Northern Territory relating to the transfer of land). (4AA) Any right, title or other interest in land transferred under subsection (4) that existed immediately before the transfer is preserved as a right, title or interest in that land after the transfer. (4AB) Any agreement in respect of land transferred under subsection (4) that was entered into by the transferor Land Trust and that is in force immediately before the transfer is taken to have the same force and effect, after the transfer, as the agreement would have had if it had been entered into by the transferee Land Trust. (4A) With the consent, in writing, of the Minister, and at the direction, in writing, of the relevant Land Council, a Land Trust may, subject to subsection (7), grant an estate or interest in the whole, or any part, of the land vested in it to any person for any purpose. (5) A Land Council shall not give a direction under this section for the grant, transfer or surrender of an estate or interest in land unless the Land Council is satisfied that: (a) the traditional Aboriginal owners (if any) of that land understand the nature and purpose of the proposed grant, transfer or surrender and, as a group, consent to it; (b) any Aboriginal community or group that may be affected by the proposed grant, transfer or surrender has been consulted and has had adequate opportunity to express its view to the Land Council; and (c) in the case of a grant of an estate or interest - the terms and conditions on which the grant is to be made are reasonable. (6) Where a Land Council, in giving a direction for a proposed grant, transfer or surrender of an estate or interest in land, fails to comply with subsection (5), that failure does not invalidate that grant, transfer or surrender unless the person to whom the grant, transfer or surrender was made procured the direction of the Land Council by fraud. (7) The consent of the Minister is not required for the grant under subsection (2), (3) or (4A) of an estate or interest the term of which does not exceed 40 years. (8) The grantee of an estate or interest under this section is not empowered to transfer his or her interest as such grantee to another person, or to grant to another person an interest dependent upon his or her interest as such grantee, except with the consent, in writing, of the relevant Land Council and, if the consent of the Minister was required to the grant of that estate or interest to the grantee, the consent, in writing, of the Minister. (8A) A Land Council may give a consent under subsection (8) at the time it gives a direction under subsection (2), (3), (3F), (3H) or (4A) or at any later time. (8B) The Minister may give a consent under subsection (8) at the time he or she gives a consent under subsection (2), (3), (3F), (3H) or (4A) or at any later time. (8C) A consent of the Minister or a Land Council under subsection (8) relating to a transfer or grant may: (a) be general; or (b) be expressed to be limited to a specified person or a person included in a specified class. (9) Where a grant of an estate or interest is invalidated, by virtue of subsection (6), on account of fraud, that invalidity does not affect the rights of a person who has, for value and without notice of the fraud, accepted the transfer of that estate or interest or been granted an interest dependent upon that estate or interest. (9A) When the Minister is satisfied that a Land Council has refused, or is unwilling, to give a direction under subsection 11A(5) to a Land Trust to grant an estate or interest in land in accordance with an agreement entered into by the Land Council under subsection 11A(2), the Minister shall, in the name of, and on behalf of, that Land Council, give the Land Trust that direction. (9B) Where the Minister is satisfied that a Land Trust has refused, or is unwilling, to comply with a direction given under subsection 11A(5), or subsection (9A) of this section, to grant an estate or interest in particular land on particular terms and conditions, the Minister shall, in the name of, and on behalf of, that Land Trust, grant that estate or interest in relation to that land on those terms and conditions. (10) In this section, relevant Land Council, in relation to land, means the Land Council for the area in which the land is situated. (11) A reference in this section to an estate or interest in land includes: (a) a reference to a licence granted in respect of that land including, but without limiting the generality of the foregoing, a licence granted under a law of the Northern Territory relating to the mining or development of extractive mineral deposits; or (b) a reference to a lease or other interest in that land, or a right granted in respect of that land, under such a law. (12) The preceding provisions of this section do not authorise the grant by a Land Trust of the fee simple in land vested in it except in the circumstances referred to in paragraph (4)(b). (13) If a Land Trust grants an estate or interest in Aboriginal land under this section, then, at the direction, in writing, of the relevant Land Council, the Land Trust may, in writing, authorise a specified person, or any person included in a specified class of persons, to enter or remain on the land for a specified purpose that is related to that estate or interest. Note: Section 70 will not apply to a person who enters or remains on the land in accordance with such an authorisation: see subsection 70(2B). (14) A direction or an authorisation under subsection (13) is not a legislative instrument. 28 "Grant" is defined in s 3(1): grant, in relation to an interest in land (including any interest referred to in a paragraph of subsection (2) of this section), includes the doing of any action by reason of which the interest arises. 29 In relation to the phrase "estate or interest in land", subsection 3(2) states: (2) Unless the contrary intention appears, a reference in this Act to an estate or interest in land includes a reference to an interest by way of a right against the Crown to a grant of an estate or interest in land, but does not include a reference to: (a) a mining interest; (b) an interest arising out of the operation of the Atomic Energy Act 1953 or any other Act authorizing mining for minerals; (ba) a lease or other interest in land, or a right granted in respect of land, under a law of the Northern Territory relating, in whole or in part, to the mining or development of extractive mineral deposits; (c) an interest arising out of the taking possession, mining or occupation of land by virtue of a miner's right; or (d) an interest by way of the occupation or use, with the licence or permission of the Crown, of land by an Authority or a mission. 30 Section 77A is an important provision, although it did not feature much in the parties' submissions, a problem to which I return. It is expressed to have a deeming effect, and deals with the circumstances in which the consent of traditional Aboriginal owners can be taken to have been given: 77A Consents of traditional Aboriginal owners Where, for the purposes of this Act, the traditional Aboriginal owners of an area of land are required to have consented, as a group, to a particular act or thing, the consent shall be taken to have been given if: (a) in a case where there is a particular process of decision making that, under the Aboriginal tradition of those traditional Aboriginal owners or of the group to which they belong, must be complied with in relation to decisions of that kind - the decision was made in accordance with that process; or (b) in a case where there is no such process of decision making - the decision was made in accordance with a process of decision making agreed to and adopted by those traditional Aboriginal owners in relation to the decision or in relation to decisions of that kind. 31 The traditional rights of Aboriginal people to use or occupy Aboriginal land are made subject to grants such as those made under s 19: 71 Traditional rights to use or occupation of Aboriginal land (1) Subject to this section, an Aboriginal or a group of Aboriginals is entitled to enter upon Aboriginal land and use or occupy that land to the extent that that entry, occupation or use is in accordance with Aboriginal tradition governing the rights of that Aboriginal or group of Aboriginals with respect to that land, whether or not those rights are qualified as to place, time, circumstances, purpose, permission or any other factor. (2) Subsection (1) does not authorize an entry, use or occupation that would interfere with the use or enjoyment of an estate or interest in the land held by a person not being a Land Trust or an incorporated association of Aboriginals. (3) A reference in this section to an estate or interest in Aboriginal land includes a reference to: (a) a licence granted under section 19; and (b) a licence granted by the lessee of a lease granted under section 19A; and (c) a licence granted by a sublessee of a sublease of a lease referred to in paragraph (b); and (d) a licence of a kind prescribed by the regulations for the purposes of this paragraph. (4) Subsection (3) does not limit section 66.

[5]

Judicial review provisions 32 The applicants invoke this Court's jurisdiction under both s 39B(1A)(c) of the Judiciary Act 1903 (Cth) and ss 5 and 6 of the AD(JR) Act. The operation and effect of s 19(6) of the Land Rights Act on the supervisory jurisdiction of this Court under both pieces of legislation is a key question in this proceeding, if any of the applicants' grounds of judicial review otherwise have force. The applicants' contentions about the scope and operation of the AD(JR) Act in the light of s 19(6) are somewhat novel, and it is necessary to set out some of the key provisions upon which the applicants rely. 33 Section 39B relevantly provides: 39B Original jurisdiction of Federal Court of Australia Scope of original jurisdiction (1) Subject to subsections (1B), (1C) and (1EA), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth. (1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter: (a) in which the Commonwealth is seeking an injunction or a declaration; or (b) arising under the Constitution, or involving its interpretation; or (c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter. Note: Paragraph (c) does not prevent other laws of the Commonwealth conferring criminal jurisdiction on the Federal Court of Australia. 34 In form, the applicants rely on all grounds in s 5(1) of the AD(JR) Act except s 5(1)(h), although it is fair to say the focus was on paragraphs (a), (c), (d) and (e). Section 5 of the AD(JR) Act relevantly provides: 5 Applications for review of decisions (1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds: (a) that a breach of the rules of natural justice occurred in connection with the making of the decision; (b) that procedures that were required by law to be observed in connection with the making of the decision were not observed; (c) that the person who purported to make the decision did not have jurisdiction to make the decision; (d) that the decision was not authorized by the enactment in pursuance of which it was purported to be made; (e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made; (f) that the decision involved an error of law, whether or not the error appears on the record of the decision; (g) that the decision was induced or affected by fraud; … (j) that the decision was otherwise contrary to law. (2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to: (a) taking an irrelevant consideration into account in the exercise of a power; (b) failing to take a relevant consideration into account in the exercise of a power; (c) an exercise of a power for a purpose other than a purpose for which the power is conferred; (d) an exercise of a discretionary power in bad faith; (e) an exercise of a personal discretionary power at the direction or behest of another person; (f) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case; (g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power; (h) an exercise of a power in such a way that the result of the exercise of the power is uncertain; and (j) any other exercise of a power in a way that constitutes abuse of the power. … 35 The applicants also rely on the following parts of s 6 of the AD(JR) Act: 6 Applications for review of conduct related to making of decisions (1) Where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies, a person who is aggrieved by the conduct may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the conduct on any one or more of the following grounds: … (b) that procedures that are required by law to be observed in respect of the conduct have not been, are not being, or are likely not to be, observed; (c) that the person who has engaged, is engaging, or proposes to engage, in the conduct does not have jurisdiction to make the proposed decision; (d) that the enactment in pursuance of which the decision is proposed to be made does not authorize the making of the proposed decision; … (f) that an error of law had been, is being, or is likely to be, committed in the course of the conduct or is likely to be committed in the making of the proposed decision; … (j) that the making of the proposed decision would be otherwise contrary to law. … 36 Section 4 of the AD(JR) Act assumes some prominence in the arguments of the applicants about the effect of s 19(6) of the Land Rights Act. It is a compact provision, which provides: 4 Act to operate notwithstanding anything in existing laws This Act has effect notwithstanding anything contained in any law in force at the commencement of this Act.

[7]

The current status of the leases and licence 38 The impugned direction to grant the leases and licence in issue was given by the CLC to the AALT on 19 October 2016, at a CLC meeting in Alice Springs. I return to the details of the chronology in more detail below. The leases and licence in issue are as follows. A lease from the AALT to the IES: a s 19(3) lease over Lots 95, 189 and 190 for public infrastructure services for a 12-year term commencing on the date the last party to execute the lease does so. There is an option to extend the lease for up to 40 years. IES is a not-for-profit subsidiary wholly owned by the Power Water Corporation, established to support the provision of electricity, water and sewerage services to remote indigenous communities in the Northern Territory, including to the Amoonguna community, under an agreement with the Northern Territory government. This lease relates to a sewer pump station, treatment ponds and overflow so as to provide the sewage infrastructure for the Amoonguna community. A lease from the AALT to the Northern Territory of Australia: a s 19(3) lease over Lot 88 for public infrastructure services for a 12-year term, commencing on the date the last party to execute the lease does so. It includes an option to extend the lease for up to 40 years. This lease relates to the Amoonguna School. A lease from the AALT to the Council: a s 19(4A) lease over Lots 61, 162 and 187 for public infrastructure services for a 12-year term, commencing on 1 July 2014. It includes an option to extend for up to 40 years. This lease relates to Council offices, a works depot and landfill, and was the only lease to grant rights of possession retrospectively. A licence from the AALT to the Council: a s 19(4A) licence over Lots 79, 182 and 188 for community parks for a 12-year term commencing on the date the last party to execute the licence does so. It includes an option to extend the licence for up to 40 years. This licence relates to community parks and recreational facilities. A lease from the AALT to Congress over Lot 60 for a health clinic for a 12-year term commencing on the date the last party to execute the lease does so. This lease makes no provision for an extended term. According to the terms of this lease, it was made under s 19(3) of the Land Rights Act. However, Senior Counsel for the CLC noted during the trial that this was an error, and that the lease should actually have been made under s 19(2)(c). For the purposes of these reasons, and given that it was not raised as an issue by the applicants, it is not necessary to decide whether the lease was made under s 19(2)(c) or under s 19(3). As the CLC Committee considered this lease under s 19(3), I refer throughout these reasons only to s 19(3). 39 It will be apparent from the nature of the leases and licence, and it is the fact, that the activities permitted under the lease were all activities that had been undertaken on the land for some considerable time prior to October 2016. 40 The Northern Territory's submissions in particular tend to characterise what was occurring through these leases as the regularisation of arrangements which had been in existence for some time. There is some force in that characterisation. However, what had changed, and what underlies this proceeding, is the desire of those members of the Amoonguna community who support the applicants, and ICL as an indigenous-run corporation, to take charge of the leases themselves and, in effect, to either run the services themselves, or sub-lease them out to entities such as Congress. 41 At this point I should make it clear that I do not accept, on the evidence, that there was any urgency for these kinds of leases, in the way that the Northern Territory submits. As Mr Levy frankly conceded, services had been provided to the Amoonguna community prior to 2007 for many decades without any formal proprietary arrangements. That was because, on the Northern Territory's argument, of s 14 of the Land Rights Act. Section 14 continued to have effect, as Mr Levy submits. Section 14 would have authorised any urgent repairs or sewerage works. There was no need for these leases and licence to be pushed through for this to occur. 42 After the 19 October 2016 direction was made, only some of the leases and the licence were executed: namely those to Congress and the Council. The leases to the Northern Territory/IES were not executed by those parties. None of the leases had been registered under the Land Title Act (NT), although at least some of the respondents have evinced an intention to do so and the Council, Northern Territory and IES leases (but not the licence nor the Congress lease) each provide for such registration. 43 On 18 January 2017, the applicants applied for interlocutory relief to preserve the status quo pending the hearing and determination of their claims, and sought injunctive relief to preclude the remaining leases from being executed and any of them from being registered under the Land Title Act. All respondents eventually gave undertakings to that effect, which were recognised in orders made by the Court on 2 February 2017. 44 Thus, the position remains as I have set out above. In reality, all of the lessees have continued to conduct the activities for which the leases provide on the land concerned, and there has been no practical interruption or alteration to the services provided to the Amoonguna community. For example, Congress has continued to operate the health services for members of the Amoonguna community.

[8]

The evidence 45 Considerable evidence, both documentary and by affidavit was adduced. Not all witnesses were required for cross-examination. Documents were adduced either through witnesses, or through a notice to admit filed on behalf of the CLC. In the end, most of the key documents were agreed. The CLC took a large number of objections to evidence and where the parties could not agree even after further encouragement, rulings were given. 46 The applicants adduced evidence from four witnesses: (1) Marie Elena Ellis, the first applicant, was the applicants' primary witness. She affirmed four affidavits, giving evidence as to what happened at the key meeting at the Chifley Hotel on 12 October 2016, at which she was present. She also gave evidence regarding the interests of her community and the ICL, of which she was the Senior Community Development Officer, and at times, President, as well as evidence concerning Arrernte culture and law, and seniority within the Arrernte people. (2) Brett Ian Midena, the applicants' legal representative, affirmed four affidavits exhibiting correspondence and documents (such as minutes and transcripts of meetings and leases) relevant to the history and background of the dispute. Mr Midena was not subject to cross-examination. (3) Elaine Ross is an "apmereke-artweye" of the Antulye estate group, which is part of the Arrernte group of people. I return to these concepts below. Ms Ross affirmed an affidavit giving evidence about meetings regarding the management of Amoonguna land, and her knowledge of what occurred at the Chifley Hotel meeting, at which she was not present. (4) Jeffrey Oliver is the senior "kwertengerle" for Amoonguna land. Mr Oliver gave oral evidence, after being subpoenaed by the applicants, as to whether he expressed consent to the grant of the leases. 47 The CLC adduced evidence from seven witnesses: (1) Phillip James Alice is an "apmereke-artweye", and affirmed an affidavit, giving evidence about what occurred in the lead-up to and during the Chifley Hotel meeting, at which he was present. (2) Robert Angus Gosford is the CLC's legal representative and was also present at the Chifley Hotel meeting. He has been involved with the CLC's day-to-day management since 2015, and affirmed an affidavit giving evidence as to the lease proposals over Amoonguna land and the process leading up to the execution of the instruments of grant. (3) Brian Connelly is the Manager of the Anthropology Section of the CLC. He affirmed an affidavit giving evidence about the Arrernte people, including decision-making processes and seniority within the group, and the knowledge of the CLC in relation to the Arrernte people. (4) Helen Wilmot is an anthropologist employed by the CLC, and attended the Chifley Hotel meeting. She affirmed an affidavit giving evidence about her understanding of the traditional owners of Amoonguna and seniority within the group, as well as what happened at the Chifley Hotel meeting. (5) Jasmin Cherie Rucioch is a senior administrative assistant with the CLC and affirmed an affidavit giving evidence about the execution of the leases and licence. Ms Rucioch was not cross-examined. (6) Meagan Gail Wynniatt is an administrative officer within the Directorate Section of the CLC and affirmed an affidavit giving evidence about the minutes and agenda items of the CLC Executive Committee meetings. Ms Wynniatt was not subject to cross-examination. (7) Melany Rebeka Matteucci is a senior administrative assistant with the CLC and affirmed an affidavit giving evidence about the signing of authorities by members of the AALT on the day that Ms Rucioch was absent from work. Ms Matteucci was not subject to cross-examination. 48 The Northern Territory and IES jointly adduced evidence from four witnesses, none of whom were cross-examined: (1) Leanne Dawn Evans is the Director, Remote Programs and Projects, Land Tenure at the Department of Housing and Community Development of the Northern Territory. She affirmed two affidavits, giving evidence regarding leases and infrastructure on Amoonguna land, as well as negotiation processes in respect of the leases. (2) Vicki Faith Baylis is the CEO of the Department of Education of the Northern Territory and affirmed an affidavit giving evidence regarding the school located on Amoonguna land and the lease arrangements. (3) Nigel Robert Deacon is the Senior Manager Water and Sewer Services, Remote Operations, Power Water Corporation and gave evidence regarding the sewerage assets, infrastructure and leases over Amoonguna land. (4) Craig Anthony Smyth is the Director of Litigation, at the Solicitor for the Northern Territory, Department of the Attorney-General and Justice. He affirmed an affidavit giving evidence of the circumstances surrounding the filing of the ex parte interlocutory application and originating application in November 2016. 49 The Council adduced evidence from one witness, Jeffery Allan MacLeod, the CEO of the Council. Mr MacLeod gave evidence as to the execution of the leases and licence and the services provided by the Council at Amoonguna. Mr MacLeod was not cross-examined. 50 Congress adduced evidence from one witness, Donna Ah Chee, the CEO of the Congress. Ms Ah Chee affirmed an affidavit giving evidence as to Congress' activities, the operation and occupation of the health clinic in Amoonguna, and her understanding of the events leading up to the execution of the lease over the health clinic in 2016.

[9]

Amoonguna 51 Amoonguna is a community which lies about 20 km south-east of Alice Springs CBD, in the country of the Antulye people. It is about 5.3 square kilometres in size, and was established in the 1960s as an Aboriginal reserve. It was scheduled as Aboriginal land under the Land Rights Act in July 1978. 52 In his affidavit, Mr Connelly describes the Aboriginal traditions of Arrernte people in relation to land. These propositions are not contested, and are broadly consistent with Ms Marie Ellis' evidence. He deposes that Arrernte people form groups that are connected to particular areas of land known in anthropological literature as "estates". Ms Ellis deposes that such estates are referred to as "apmere" in the Arrernte language, a term which I adopt. These apmere were formed by the activities of mythological beings during a period known in English as the Dreaming. Ms Ellis agrees that the term "Dreamtime" or "Dreaming Tracks" is sometimes used in English to describe this concept, which in Arrernte is called "Altyerre", but says that these words do not properly express Altyerre. Ms Ellis deposes: This concept [of Altyerre] is very deeply important to us. It is hard to explain, but it concerns our ancestors, our whole system of law. It is about the "creation" and all things. It is also about our ancestors and their powers being deep in us, in our apmere, in our law and in our ceremonies… it is not just things, and times and places… Altyerre is a continuous creation. You could think of bushfire, rain, re-growth. 53 In relation to Amoonguna land, the relevant apmere is the Antulye apmere. The Arrernte people with interests in and around Amoonguna are a part or a subset of the wider Antulye apmere. The current senior generation in Amoonguna trace their ancestry back to their paternal and maternal grandparents, which is customary for Arrernte societies. The Antulye apmere is of Penangke/Pengarte patrimoiety or "sub-section", sometimes referred to as "skin". Within this apmere, there are two important groups of people who exercise rights and responsibilities in relation to the land: the "apmereke-artweye" and the "kwertengerle". There is some disagreement between the parties about what flows from the hierarchy of members in these groups, for the purposes of traditional decision-making and I discuss this at [155] below. The Antulye apmere have responsibilities for the care of Amoonguna land and the Arrernte people on that land. 54 Prior to the establishment of ICL, the Amoonguna Community Inc (ACI) was responsible for the management of Amoonguna, except for NT Portion 568. ACI was incorporated as an incorporated association under the Associations Incorporation Ordinance 1963 (NT) on 22 July 1975. Under the ACI's original constitution, membership was limited to Aboriginal people accepted by ACI's governing committee. Subsequently, ACI amended its constitution in 1997 to accept membership from all Aboriginal persons aged 18 and over who normally reside at Amoonguna or who are traditional owners of Amoonguna. According to Ms Marie Ellis' evidence, which was not challenged on this point and which I accept, until 30 June 2008, ACI provided services and community development work at Amoonguna for the benefit of the Amoonguna community, including building construction, local employment programs, community services such as aged care, community "night patrol" and a local bus service between Amoonguna and Alice Springs. 55 According to Ms Marie Ellis, the status and operations of the ACI were affected by the 2007 Northern Territory Intervention. I discuss the relevance of the Intervention to this proceeding at [72]. In any event, ACI ceased to exist on 1 July 2008. Legal proceedings were commenced by Ms Ellis and others in relation to the Intervention, with that dispute being settled in 2015. There is no evidence before the Court in relation to that dispute. 56 In September 2012, following meetings within the Amoonguna community, traditional owners and members of the Amoonguna community decided to establish the ICL to succeed the ACI.

[10]

ICL 57 ICL was established in November 2012 under the Corporations Act 2001 (Cth) as a company limited by guarantee. ICL is also registered as a charity with the Australian Charities and Not-for-profits Commission. Membership of ICL is open to all Aboriginals over 18 years of age who are traditional Aboriginal owners. Its decision-making processes, as set out in its constitution, policies and procedures, are intended to allow decisions about Amoonguna to be made in accordance with Anpernirrentye, or Arrernte law. 58 ICL was established, according to the uncontested evidence of Ms Marie Ellis, because some traditional owners and Aboriginal residents of Amoonguna were concerned: (a) to apply Arrernte decision-making processes to the management and development of Amoonguna Land for the benefit of the Amoonguna Community, (b) to see Amoonguna properly managed and developed by and for the benefit of the traditional Aboriginal owners of the Amoonguna Land and other members of the Amoonguna Community, (c) to provide government authorities, including the CLC, a practical and meaningful way of properly consulting the traditional Aboriginal owners of Amoonguna Land and/or the Amoonguna Community, and (d) to avoid facing further disempowerment and 'intervention' from government authorities including: (i) the Commonwealth Government, and the CLC under the ALRA; and (ii) the Northern Territory Government, and the MRC under the Local Government Act (NT). ICL has been established to enable traditional Aboriginal owners of Amoonguna to assume responsibility for the management of Amoonguna, as did ICL's predecessor, ACI. In particular, the establishment of ICL was designed to improve the well-being of the traditional Aboriginal owners of the Amoonguna Land and the residents at Amoonguna: (a) by managing the rights and entitlements under Anpernirrentye in Amoonguna of the traditional Aboriginal owners of Amoonguna and the traditional owners resident at Amoonguna; (b) by being the vehicle by which the traditional Aboriginal owners of Amoonguna and the traditional owners resident at Amoonguna exercise their rights and entitlements under Anpernirrentye (Arrernte law) in Amoonguna, including under the ALRA; and (c) by governing, managing and developing Amoonguna. 59 Since its establishment, ICL has pursued activities to give effect to its objects, including performing housing repairs and maintenance, and establishing a building company to promote local training and employment. 60 The composition of ICL at various points in time was not in dispute. At times it might appear from some of the evidence as if ICL was only constituted by Ms Marie Ellis. The evidence shows that is not the case. At the time of the October 2016 meeting, the CLC distributed a pamphlet which showed the then composition of the Board of ICL. It showed the following people: Chairperson: Theresa Alice President: Marie Ellis Board Member: Theo Alice Board Member: Mark Alice Board Member: Marina Alice Board Member: Clement Alice Board Member: Joseph Alice Board Member: Phillip Alice Board Member : Katherine Alice Board Member: Roseanne Ellis Board Member: Lynette Ellis Board Member: Edward Neal Board Member: Elaine Ross Board Member: Rosalie Riley Board Member: Marcia Alice Board Member: Maree Oliver Board Member: James Oliver Board Member: Michael Ellis Board Member: Jeffrey Oliver 61 At the 12 October 2016 meeting, according to the minutes taken by Mr Gosford and the transcript adduced into evidence, Ms Marie Ellis informed the CLC that following a meeting in September, a number of the board members had resigned, including Mr Jeffrey Oliver and Ms Elaine Ross. Some of these resignations were subsequently withdrawn, notably (but possibly not only) Ms Ross' resignation. 62 Management of the ICL is conducted through two ICL councils: the Tribal Council and the Community Council. The Tribal Council manages town planning, law and culture at Amoonguna, and comprises senior traditional Aboriginal owners, or Akngerre-apate areye. Any Akngerre-apate areye who are not members of the Tribal Council, such as Mr Oliver, are to be invited to Tribal Council meetings. The Community Council manages the day-to-day services and administration at Amoonguna. Its members are residents of Amoonguna, and include Ms Marie Ellis and Ms Roseanne Ellis. 63 The fact that there were members of ICL who apparently voted in October 2016 against leases to ICL (such as Mr Phillip Alice) was never really explained in the evidence. Mr Alice's own affidavit deposes that he remained a board member of ICL at the time the affidavit was made, and appears to suggest he was also a board member at the time of the 12 October 2016 meeting. 64 It is fair to say, on the evidence before the Court, that support for and involvement in ICL amongst Amoonguna community members appears to have ebbed and flowed over recent years. It is also fair to say, on the evidence, that Ms Marie Ellis, as President, was and remains a driving force in ICL.

[11]

The way leases have been organised in remote Aboriginal communities 65 The mechanism by which communities on Aboriginal land are serviced (whether as to housing, infrastructure or other services) is through the grant of proprietary interests by way of leases and licences from a Land Trust to third parties, which then provide the services back to Aboriginal communities. Once that fact is set out, it is plain there might be other models available, but that is the current arrangement. 66 How leases in connection with the Northern Territory government occur is dealt with in Ms Evans' affidavits, and I accept the evidence she gave, which was not contested. What I set out here is the position that, as I understand it, existed at the time of trial. 67 The Land Tenure Unit within the Department of Housing and Community Development negotiates leases of Aboriginal land on behalf of Northern Territory government agencies. The parties to the leases are generally the relevant Land Trust, Land Council and one of three government agency entities with authority to execute leases: IES, the Department of Corporate and Information Services or CEO Housing. CEO Housing is a body corporate established under the Housing Act (NT). As I understand Ms Evans' evidence, these three entities and this process applies to what might be called infrastructure or community support leases. 68 Remote community housing in Central Australia is dealt with separately, through the Commonwealth Executive Director of Township Leasing, which is established under s 20B of the Land Rights Act. This entity secures a long term lease over the housing, and subleases for a shorter term to CEO Housing. The sub-leases are for a term consistent with the Commonwealth funding period for the provision of community housing. 69 Ms Evans deposed that prior to the Commonwealth's "National Emergency Response" in the Northern Territory in 2007, there had been an absence of formal tenure (i.e. leases) over Territory government infrastructure on Aboriginal land. She noted in her evidence however, the Northern Territory's view of its rights under s 14 of the Land Rights Act, a matter which featured in the submissions for the Northern Territory in this case and to which I return briefly later in these reasons. 70 Ms Evans deposes that the Territory has never paid rent for the lots the subject of the impugned leases: that is, for the lot on which the school is situated, and the lots for sewerage infrastructure.

[12]

The relevance of the Northern Territory Intervention to the issues in this case 71 Ms Evans explained in her evidence how the Northern Territory Intervention has affected the tenure situation in Aboriginal communities situated on land held under the Land Rights Act. At [13] of her first affidavit, she deposed: During the period 2007 to 2012, the Commonwealth held compulsory five year leases over 64 communities in the Northern Territory under the Northern Territory National Emergency Response Act 2007 (Cth). Most, but not all, of these communities are located on Aboriginal land granted under the ALRA. A small number are located on Northern Territory freehold owned by Aboriginal corporations granted under Territory legislation. During this period, the Commonwealth changed the conditions of its funding agreements to require all new capital investment in these communities to be underpinned by a voluntary long term lease at the expiry of the compulsory five year leases. This led to the adoption of an NTG wide policy from 2008 that the Territory negotiate with the relevant Aboriginal land councils (and Aboriginal corporations) for the grant of leases over all Aboriginal land (and NT freehold land) on which NTG infrastructure was situated. (Emphasis added.) 72 It is difficult to see how a lease can be truly "voluntary" if it is required before the Aboriginal community concerned receives any capital investment in its community. It seems to me the word "voluntary" as used by Ms Evans can only mean "voluntary" as opposed to leases imposed through Commonwealth legislation such as the 2007 Intervention legislation (that is, the Northern Territory National Emergency Response Act 2007 (Cth) and related legislation). 73 Ms Evans goes on to describe the task undertaken by the Land Tenure Unit, of which she is a part, since 2008 to set about negotiating these leases. She deposes that since 2008, of the 64 existing communities, 56 now have housing leases in place and eight communities do not have housing leases. Amoonguna is one of the communities without housing leases. Sixty-two of those 64 communities have infrastructure leases as at June 2017. Amoonguna is one of the communities which does not. Ms Evans deposes that her understanding of why some communities do not have these leases in place is, at least as one reason, because of what she describes as "traditional owner disputes". 74 Another possibility, it seems to me, is that some communities (or some traditional owners within those communities) are unhappy with the model which underpins these lease arrangements. 75 Once these circumstances are understood, it is not difficult to see why Land Councils will be concerned to ensure that leases are granted in a way that continues and secures tenure for government tenants. If they do not achieve this outcome, at least on the way Ms Evans' evidence describes the situation, the Commonwealth may not allocate any funds for capital investment into Aboriginal communities. 76 In a second affidavit filed late with the leave of the Court, Ms Evans gives further evidence about the negotiation process for the impugned leases. She deposes that from approximately 2010 onwards, the Northern Territory commenced negotiations with the Northern Land Council and the CLC to secure "template" infrastructure leases under s 19 of the Land Rights Act. The substantive terms for the leases, including lease payments, were negotiated through this process. The negotiation process concluded in 2012, and the first leases were granted in that year. 77 I note this coincides with the evidence about the first steps taken by the CLC to conclude leases over Amoounguna community land, at that time apparently negotiating with ICL. How that sits with Ms Evans' evidence, and whether there was ever any realistic prospect of ICL securing those infrastructure leases as head leases given the CLC was negotiating directly on a "template" basis with the Northern Territory government, was not explored during the hearing. However, the Northern Territory did submit it was not lawfully possible for ICL to secure a "head-lease" under s 19. The Northern Territory accepted ICL could do so under s 19A.

[14]

The CLC Committee 79 There was no dispute between the parties about who gave the impugned direction under s 19(5), and how the CLC Committee was constituted. It was a committee of members of the CLC established under s 29A of the Land Rights Act. By s 28(2) of the Act, a Land Council can delegate to a Committee appointed under s 29A any of its functions or powers under the Act, aside from those specified in s 28(2). 80 Membership of a Land Council, subject to eligibility requirements relating to such matters as convictions for dishonesty offences, is described in s 29(1) and (2): 29 Membership of Land Council (1) The members of a Land Council shall be Aboriginals living in the area of the Land Council, or whose names are set out in the register maintained by the Land Council in accordance with section 24, chosen by Aboriginals living in the area of the Land Council in accordance with such method or methods of choice, and holding office on such terms and conditions, as is, or are, approved by the Minister from time to time. (2) A Land Council may, with the approval of the Minister, co‑opt Aboriginals living in the area of the Land Council as additional members, but not more than 5 such members may hold office at any one time. 81 The clear intention of s 29, and then of s 29A, is that those people who are traditional Aboriginal owners for the land in respect of which the Land Council performs its functions and exercises its powers will be the people who make decisions about the exercise of powers and the performance of functions by the Land Council. 82 Section 28(4) of the Land Rights Act provides: (4) Where the provisions of this Act require that a Land Council, before performing a function or exercising a power conferred upon it to do, or to consent to the doing of, an act or thing, satisfy itself that: (a) the traditional Aboriginal owners (if any) of the land affected by the performance of the function or the exercise of the power understand the nature and purpose of the act or thing and consent to it; and (b) any Aboriginal community or group that may be affected by the doing of the act or thing has been consulted and has had adequate opportunity to express its views to the Land Council; then, if that function or power is delegated, the delegate may perform the function or exercise the power if the delegate is satisfied: (c) of the matter referred to in paragraph (a); and (d) that any Aboriginal community or group that may be affected by the doing of the act or thing has been consulted and has had adequate opportunity to express its views to the delegate. 83 By s 28(4), read with both s 23(3) and s 19(5), as a delegate, the Committee was required itself to form the requisite state of satisfaction required by s 19(5) as to consent (for traditional owners) and as to consultation, for community members affected by the proposed leases. 84 The members of the CLC Committee were drawn from the various regions covered by the CLC. Region 1 covers Amoonguna and Santa Teresa. Ms Ngarla Kunoth-Monks was the member for this region and Mr Bernard Abbott was the alternate member. There is no evidence one way or the other whether Ms Kunoth-Monks or Mr Abbott are from Amoonguna. 85 The other members, at the relevant time, including alternate members were: Francis Kelly (Chair) Sammy Butcher (Deputy Chair) Sammy Wilson Norbert Patrick Teddy Long Sid Anderson Michael Jones Michael Liddle Leo Petrick Jasper Haines Louis Clyne (Alternate) Desley Rogers (Alternate) Harry Nelson (Alternate) Douglas Multa (Alternate) Kelvin Morrison (Alternate) George Club (Alternate) Kenny Martin (Alternate) Ron Hagen / Kim Brown (Alternates) 86 This Committee was appointed pursuant to s 29A of the Land Rights Act at a meeting over 16, 17 and 18 August 2016. The resolution following that meeting also confirmed the continuing delegation of powers to the Committee.

[15]

The AALT 87 The AALT is a Land Trust established under s 4 of the Land Rights Act, and has the function (among others) of holding title to land vested in it under the Land Rights Act. By notice published in the Commonwealth Gazette on 21 July 1978, and for the purposes of holding title to land "for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of the land concerned" (s 4(1)), the AALT holds: All those pieces of land near Alice Springs in the Northern Territory of Australia containing an area of 530.5 hectares more or less being Northern Territory Portions 461 and 568 and being more particularly delineated on Survey Plans A 127 and Diagram 492 respectively lodged with the Surveyor-General for the Northern Territory. 88 The AALT was subsequently granted the following estates in fee simple: (1) by a Deed of Grant dated 30 May 1980, an estate in fee simple to Northern Territory Portions 461 and 568 excluding Lot 1 Townsite of Amoonguna and Lot 2 Townsite of Amoonguna; and (2) by a Deed of Grant dated 29 October 1986, estates in fee simple to Lot 1 Townsite of Amoonguna and Lot 2 Townsite of Amoonguna with the Deeds of Grant to be held in escrow by the CLC under s 10(2) of the Land Rights Act. 89 On 3 November 2008, the CLC requested certificates of title to issue for Lot 1 Townsite of Amoonguna and Lot 2 Townsite of Amoonguna, with the AALT as registered owner. Those certificates as to title were issued on the same day. 90 The AALT is constituted by members appointed by the Minister, who must be Aboriginal people living in the area of the CLC, in that area of land in which the AALT is situated, or whose names are set out in a CLC register of traditional owners: s 7. The AALT members, from 10 November 2011 to 10 November 2016, were Marie Ellis (Chair), Roseanne Ellis, Nola Ross, Michael Ellis, Shannon Ellis, Travis William and Elena Ross. From 10 November 2016, and pursuant to an instrument of appointment dated 3 November 2016, the AALT members were Phillip Alice (Chair), Jeffrey Oliver, Elaine Ross, Joe Alice, Theo Alice, Mark Alice and Marcia Alice. 91 Clearly some of the members of the Board until 10 November 2016 (including the first and second applicants in this proceeding) did not agree with the granting of the impugned leases and licence, and some of those appointed to the Board on and from 10 November 2016 had expressed support for the grant of the impugned leases and licence, such as Mr Phillip Alice who became the new Chair. However, the new Board also included persons whom the applicants allege had either not been properly consulted or had not agreed to the new leases, such as Mr Jeffrey Oliver and Ms Elaine Ross. 92 As will become apparent later in these reasons, the change in the constitution of the AALT was not without significance. 93 The AALT may only exercise its functions in relation to that land in accordance with a direction given to it by the CLC: s 5(2)(a). The power of the AALT to deal with interests in land is restricted by s 19, as set out at [28] above.

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The general sequence of events 94 In the lead up to the purported grant of interests in land in October 2016, the CLC, and the community of traditional owners at Amoonguna, had before them two sets of proposals to obtain leases of Amoonguna land vested in the AALT. The two sets of proposals were, on the one hand, the ICL's proposal to lease the whole of the Amoonguna land for 99 years. If granted, the ICL would then tender for government contracts for housing maintenance at Amoonguna, and engage with government authorities, including the CLC, in respect of the grant of subleases and licences and of utility easements. 95 On the other hand were the proposed leases to the entities I have set out at [39] above. I shall call these the "impugned leases" and include in this description the licence granted to the Council. 96 The CLC submits that the two sets of proposals were not, in substance, mutually exclusive. It submits that if the traditional owners supported the ICL proposal and the CLC adopted it through a direction under s 19A, then in effect ICL could become the head lessee to all those entities who are lessees of the currently impugned leases. Nevertheless, at the time of the sequence of events with which the proceeding is concerned - the meetings in the second half of 2016 - I am satisfied that the proposals were in substance viewed and presented as alternatives at the community meetings. 97 The desire of members of the Amoonguna community to have more control over what was happening in their community, and over housing and services delivered to the community, is not a new one. 98 In her affidavit evidence, Ms Marie Ellis set out her perspective on some of these matters, including housing issues at Amoonguna, which on the evidence arose well prior to the debate which resulted in this proceeding. Some of her views, and the narrative she gave, about housing issues were subject to objection by the CLC, which objection was upheld. However, the following evidence from Ms Ellis was admitted: The piecemeal grant of estates and interests in Amoonguna as proposed by the CLC will prevent the implementation of the Development Plan as a whole of community, viable and sustainable development strategy. I and other members of the Amoonguna Community have put in a lot of hard work and effort over the last nine years to try to plan the development of our community and the restoration of our capacity for self-determination since the Northern Territory government took everything over in 2007 and 2008. That hard work included us taking court action (ACI proceedings) that is described in the Originating application. The CLC has known of our hard work for a long time and we have had meetings with them to explain what we want. … I believe the leases and licences which the CLC wants to grant to the NTG, MRC and Congress will favour the grantees to the detriment of: (a) the self-determination, (b) local employment of members, (c) economic advancement of members, of the Amoonguna Community. 99 This evidence informs an understanding of why Ms Ellis, her sister and other traditional owners who support them, have continued to object to the CLC's proposals, and have continued to insist that an Amoonguna community owned and run organisation should be in charge of how community infrastructure is maintained, and services provided. At a factual level, I am satisfied there was credible, serious and longstanding opposition to the impugned lease proposals. That opposition was based on a different perspective on how a community like Amoonguna should sustain itself. 100 The ICL proposal had been pursued formally since 27 May 2013 when Mr Midena sent a letter to Mr Maurie Ryan, the Chairman of the CLC. In this letter, Mr Midena explained that the reason for the ICL proposal was that the traditional owners sought to give expression to their traditional responsibilities towards Amoonguna and to express their authority over the land. In this letter, Mr Midena stated that he represented the "Traditional Owners". At trial, counsel for the applicants accepted the evidence was unclear about the extent to which Mr Midena represented the individual traditional owners, and whether he represented the "Traditional Owners" as a group. Suffice to say that the respondents accepted at trial that Mr Midena did represent some individual traditional owners. 101 On 25 July 2013, the CLC met with members of the ICL and traditional owners of the Amoonguna land, at the request of the CLC. The topic of the meeting was the ICL's application for a 99-year lease over Amoonguna Land. The list of community members present was: Present: Marie Elena Ellis (President, ICL Community Council), Roseanne Ellis (Chairperson, ICL Tribal Council), Noella Ross (ICL Councillor), James Oliver (ICL Member), Theo Alice (ICL Member), Phillip Alice (ICL Member), Marina Alice (ICL Councillor), Neville Douglas, Benita Oliver, Roxanne Oliver (ICL Member), Henry Oliver (ICL Housing Committee), Derek Hayes, Clement Alice (ICL Councillor), Faye Oliver, Phillena Oliver, Roderick Oliver (ICL Member), Valerie Oliver, Brett Burdett (ICL Member), Michael Ellis (ICL Member), Patricia Ellis (ICL Councillor), Sacara Wallace. 102 The document recording the meeting contained the following note. This is of relevance, given the applicants' arguments in this case about who needed to be present for the consent of traditional owners "as a group" to be given: Note: Prior to the meeting: • Jeffrey Oliver gave his support for the proposed lease, to be conveyed to this meeting by Marie Ellis & others; and • Teresa Alice gave her support for the proposed lease, to be conveyed to this meeting by Phillip Alice & others. 103 The minutes record that the CLC representative (Mr Kelly) listed a number of concerns the CLC had about the ability of the ICL to manage the community through any lease arrangement. The points he made were: 1. How will ICL put in for Commonwealth/Federal Funding to run the community services? 2. Where will ICL get the funding for operational cost to run the community services similar to MacDonnell Shire? 3. Who will pay rent and how much? 4. Who will maintain and repairs the houses at Amoonguna? 5. Will the TAO benefit from the rent money? 6. How will ICL run the service at Amoonguna? 104 The minutes record Ms Marie Ellis addressing the meeting to answer these concerns. One of the statements she is recorded as making is the following: Explained to Ross, Oliver and Alice families that we had put in for a lease under section 19(4A) of the Land Rights Act 1976, as we, the TAOs of Amoonguna, want to show the government that we can be successful again in self-determination, in community control and for employment and living - just as we did before through Amoonguna Community Inc. 105 Ms Ellis explained that Mr Midena was the lawyer they had been working with for five years. It was not in dispute in this proceeding that Ms Ellis was frequently at the forefront of the move to place control of the community in the hands of community members through a corporate vehicle, currently ICL. 106 The minutes of the meeting state that: All families present confirmed their support for the application by ICL for the 99 year lease of Amoonguna - and all agreed for the lease to be granted. 107 On 8 October 2013, a letter was sent by a lawyer from the CLC, Ms Elly Patira, to Mr Midena noting the CLC's view that at the meeting of 25 July 2013, "the CLC was unable to gain instructions from traditional owners in respect of the Lease Application". 108 The evidence did not explain why, in the face of the minutes as I have set them out, the CLC took this view. Matters appear then to not to have substantially progressed until some correspondence from Mr Midena in early 2014. 109 In January 2014, Mr Midena sent a letter to CLC noting that it appeared the Northern Territory government had reached an agreement with the CLC in relation to the management of Amoonguna housing. Mr Midena sought an undertaking that CLC would not grant any estate or interest in Amoonguna without prior notification to him (on behalf of his clients, who included Ms Marie Ellis). I note, as I have elsewhere, that in Mr Midena's correspondence it was often unclear precisely on behalf of which traditional owners at Amoonguna Mr Midena had instructions to act, aside from Ms Marie Ellis. It is clear he acted on behalf of ICL but which individuals within ICL were instructing him other than Ms Ellis is also unclear. 110 The CLC responded on 21 January 2014. In this letter, the CLC reiterated its view that no instructions regarding the ICL lease proposal had been received following the 25 July 2013 meeting. The CLC stated: Finally, we are particularly concerned by your assertion that traditional owners approved and consented to the grant of a lease to ICL at the 25 July 2013 meeting. This claim is incorrect and in our view disingenuous. 111 However, on 7 April 2014, the CLC sent an email to Mr Midena saying that it proposed to hold a meeting in Amoonguna on 16 April 2014, and that the meeting would consider ICL's proposed lease, as well as the Commonwealth lease application in respect of community housing and the Northern Territory application to lease infrastructure. There was no reference by the CLC to the non-Northern Territory government leases, however it would appear that by at least April 2014, two sets of lease proposals had emerged (that is, the ICL proposal and the Northern Territory government proposal). 112 Further correspondence ensued, in which Mr Midena questioned the role of the CLC in proactively approaching (as he suggested was the case) the Northern Territory government about these leases, and in which the CLC noted the longstanding desire of the Northern Territory government to secure tenure over existing infrastructure in Aboriginal communities. It is a feature of this proceeding that much time and cost and effort seems to have gone into correspondence but there is little evidence of the parties actually talking to one another, and in particular there is little evidence of the CLC being especially proactive in taking up face-to-face discussion with Mr Midena, and (more centrally), with his clients. 113 The CLC's scepticism about Mr Midena's role, including the number of traditional owner views his correspondence could be said to represent, was evident in correspondence from the CLC on 29 April 2014, after the community meeting in Amoonguna. The CLC informed Mr Midena and his clients (at least, ICL and Ms Marie Ellis) that traditional owners at that meeting had instructed the CLC to postpone decision-making on the non-ICL lease proposals until a decision was reached in respect of the ICL lease proposal. 114 Then, by a letter about a month later (on 26 May 2014), the CLC informed Mr Midena and his clients (at least, ICL and Ms Marie Ellis) that a meeting was held with the traditional owners who did not consent to the ICL lease proposal, expressing the concerns of what the CLC described as the "non-consenting TOs". The concerns set out by the CLC were as follows: The non-consenting TOs expressed initial concerns: • about whether ICL has Commonwealth and NT Government support for the Lease Proposal, particularly with respect to alternative housing management, alternative local government service provision and funding. The non-consenting TOs request that approaches be made to the appropriate Commonwealth and NT Ministers as soon as possible to confirm their support. The relevant TOs further instruct that they will not consent to the Lease Proposal without this confirmation of support and assurances from Government in relation to funding. • that the decision-making structure proposed under the ICL Constitution would significantly alter the current manner in which decision-making in respect of land is exercised. The non-consenting TOs are particularly concerned that there is no guarantee under ICL's Constitution that each of the TO family groups will be represented on the Tribal and Community Councils. They are also concerned that, even to the extent that ICL's decision-making process is amended to ensure family representation, some individuals will necessarily be removed from direct involvement in decision-making. • about the lengthy term of the Proposed Lease, particularly given that TOs may be unhappy with the manner in which ICL administers the land the subject of the Proposed Lease. The non-consenting TOs request a review of the proposed term and the inclusion of a mechanism for terminating the Proposed Lease where certain thresholds are not met by ICL. • about the status of non-TO residents in Amoonguna, and seek assurances in the Proposed Lease that non-TO residents will not be asked to vacate their current premises. • with the legal fees that will be accrued by ICL is administering the Proposed Lease (and subleases). Non-consenting TOs request further details about the Schedule of Costs applicable. 115 The CLC sought responses from Mr Midena, on behalf of ICL. There is evidence the CLC sent follow up correspondence in August 2014 and again in October 2014 trying to get a response to its concerns. It does not appear that any response was given. 116 And then, contrary to its attitude to this point, in a way which is really not explained in the evidence at all, on 7 October 2014, Ms Patira on behalf of the CLC sent the following email to Mr Midena: …I confirm that the CLC has now received instructions from traditional Aboriginal owners to consent to your client's lease application, subject to several amendments being made to the proposed lease. Could I trouble you to now forward an electronic draft of the lease (unlocked for editing), so that I can mark-up the necessary amendments for your consideration. (Emphasis added.) 117 On 27 October 2014, an email was sent from Ms Patira to Mr Midena stating that the ICL lease would be put to the next CLC Executive meeting on 9 December 2014 and that in the meantime, Ms Patira would send to Mr Midena her comments on the draft lease. 118 It appears that further differences then arose between the CLC and the applicants as to the traditional owners' consent to the ICL proposal. The source and contents of those differences are not material to the present application, and are not in any event the subject of detailed evidence in this proceeding. On 17 December 2014, Ms Patira sent an email to Ms Marie Ellis and Mr Midena which, while noting that the CLC accepted that the traditional owners at a meeting in October 2014 consented to the ICL proposed lease, subject to amendments, police had contacted CLC "with concerns that conflict has arisen in Amoonguna Community over the past two months, and that this conflict relates to housing." 119 More time passed. It was now more than 18 months after the first ICL lease proposal had been made. On 28 January 2015 Ms Patira informed Mr Midena by email that: …the CLC intends to conduct community consultations to ensure that community members have the opportunity to express their views on your client's lease. Given reports we have received from police and community organizations with respect to conflict arising around your client's proposed management of Amoonguna township, we consider it important that any such consultations are conducted in a neutral and non-threatening manner. 120 I set these matters out without making any findings whether persons (unknown on the evidence) at the CLC, through Ms Patira, had a reasonable basis to imply, as this email did, that the conflict arose because of ICL's "proposed management of Amoonguna township". 121 On 6 February 2015, Ms Patira sent an email to Mr Midena noting that the CLC conducted consultations with traditional owners in 2014 with respect to lease applications submitted by the Northern Territory government. She stated that: The CLC received instructions from traditional owners to enter into that lease [that is, the Northern Territory lease]. However, before progressing these applications, I note that your client's whole-of-community Section 19 Lease presents a "competing claim" in respect to these lots. Accordingly, could I trouble you to confirm whether your client wishes to request a suspension to the progression of these leases, until such time as your client's lease proposal has been determined. 122 Mr Midena responded on the same day, apparently an hour later, according to the email time stamp. Mr Midena expressed "considerable concern", stating: My several clients, including traditional owners and residents, have repeatedly informed me that they have repeatedly refused to consent to the grant of any leases being granted to the NTG over any land in Amoonguna. My letter to the CLC of 28/04/2014, copy attached, is particularly relevant in this regard; and there is other relevant communications, none of which suggest that any leasing proposals from the NTG are under consideration. In fact, in accordance with advice from my clients, by email of 07/10/2014 you confirmed that the CLC had received instructions from traditional Aboriginal owners to consent to ICL's lease application. You then advised that the consent was subject to several amendments being made to the proposed lease, details of which we are still awaiting, but it cannot be suggested that the exclusion of land by way of prior grants to the NTG amounts to an 'amendment' of the lease. Any interests to be granted to NTG would be granted by way of sub-leases or licences by ICL. Accordingly, with respect to your query, I can (at least) confirm that ICL - and my other clients - wish the CLC not to proceed to grant any leases or other interests in Amoonguna to any person other than ICL. Could you please confirm that you will not be proceeding to process any applications for leases or licences in Amoonguna from the NTG or any other person, apart from ICL? Also, could you please provide details of the amendments you suggest be made to ICL's proposed lease as a matter of some priority? 123 Based on the former position taken by the CLC in its correspondence, the reaction of Mr Midena and his clients is understandable. Nevertheless, despite apparently being in negotiation with the Northern Territory, it appears that the CLC also continued negotiations regarding the draft ICL lease. Ms Patira sent the CLC's comments on the ICL lease to Mr Midena on 13 February 2015, however her email also stated: Traditional owners consented to your client's lease, subject to carving out three lots, which Traditional Owners wish to lease directly to the Northern Territory Government… 124 It is unclear whether the three lots Ms Patira refers to are the lots eventually leased to the Northern Territory or IES, or whether they are other lots. It is also unclear by what kind of process traditional owner consent was given to this "carve out". 125 On 24 February 2015, Mr Midena then wrote to Ms Patira, seeking to clarify his clients' position. Mr Midena stated that he writes on the instructions of his clients, who he says are "the traditional Aboriginal owners of Amoonguna and ICL". 126 Again, when Mr Midena uses the term "clients", it is unclear precisely to whom he refers. Clearly Ms Marie Ellis was one such client, as Mr Midena refers to her by name in some of his correspondence. It is also clear that ICL was one of Mr Midena's clients, because he also refers expressly to that corporation in correspondence by that descriptor. However, precisely how many other members of the Amoonguna community, and how many other "traditional Aboriginal owners" of Amoonguna land (as that term is used by the Land Rights Act) were, at the time of this correspondence, Mr Midena's clients could have been clarified but was not, in circumstances I will explain briefly. 127 There was an exhibit to Mr Midena's first affidavit - Exh BIM-3 - which is entitled "confirmation of instructions to Midena & Co", dated June 2014, and which does indicate who Mr Midena represented, including, for example, Jeffrey Oliver, Elaine Ross and Phillip Alice. 128 The CLC objected to large parts of Mr Midena's affidavits, including a part where he exhibited BIM-3. I overruled this objection, for reasons I gave at the time, noting this material was no more than background and contextual material, which I considered necessary to understanding what occurred between the parties in 2016. However, Exh BIM-3 was one of many exhibits to Mr Midena's affidavit that was ultimately not read. There was a great deal of additional correspondence and material initially sought to be tendered which counsel for the applicants then sought to reduce. It may be that in engaging in that process, which was entirely proper, BIM-3 was excluded when it should not have been. 129 The lack of clarity around this evidence may be more of a matter of impression than critical to the disposition of the applicants' claims. That is because on any view Ms Marie Ellis and Ms Roseanne Ellis, for whom Mr Midena clearly has acted continuously, were recognised as traditional owners, whose lack of consent, or opposition, to the impugned leases was communicated to the CLC. 130 In his 24 February 2015 letter, Mr Midena stated: My clients have confirmed that they have not consented to; a) any grant to the NT Government (or anyone else) of leases (or other interests) in respect of the sewerage treatment pond, the sewer pump station or the school at Amoonguna; nor b) any grant of long-term residential rights in "Aboriginal persons", based simply on prior occupation; nor c) any grant of leases (or other interests) in the land held in trust by the Amoonguna Aboriginal Land Trust to any other entities. (Footnote omitted.) 131 Mr Midena went on in his letter to explain his clients' understanding of a meeting in November 2014, where, Mr Midena says, some confusion arose as to the proposed ICL lease and the proposed Northern Territory lease. Mr Midena summarised that: To the extent that you understood that my clients did consent to the (direct) grant by the AALT of leases [to] the NT Government, I advise that they no longer so consent and any such consent has been withdrawn and any instructions to the CLC to enter such leases has been withdrawn. 132 The remainder of the letter then dealt with the position of Mr Midena's clients and the CLC in relation to the terms of the proposed ICL lease. 133 At the least, then, by 24 February 2015 the CLC (certainly, those advising the Board and its committees, and communicating on their behalf), were on notice that within the group of traditional owners for Amoonguna land there was opposition to the grant of the impugned leases, and some traditional owners did not consent to their grant. 134 On 5 May 2015, a letter was sent by Mr Daniel Kelly, the legal practice manager of the CLC, to Mr Midena, responding to Mr Midena's 24 February 2015 letter. Mr Kelly indicated that the CLC's instructions following the meeting with traditional owners on 6 October 2014 were that the traditional owners agreed to grant: 1. a lease to the Northern Territory Government over the Amoonguna school (lot 88), and the sewage pumps and ponds (lots 95, 189 and 190) (the "NTG Infrastructure Leases"); and 2. a lease over the remainder of Amoonguna Aboriginal Land Trust to Imwernkwernhe Community Limited (ACN 161 185 100) ("ICN"), subject to amendment to: a. the ICL constitution, primarily to secure the representation of all traditional Aboriginal owner family groups by including reserved positions in the Tribal council; and b. the proposed lease, principally to protect the informal tenancies of the current Aboriginal residents of Amoonguna, in accordance with the assurances made by ICL Tribal Council members at the meeting, and also to entrench decision-making provisions under the ICL constitution, and such other amendments as required. 135 It is unclear on the evidence to what meeting this correspondence refers. Ms Patira's earlier correspondence to Mr Midena in October and December 2014 and February 2015 dealt with a meeting of traditional owners prior to 7 October 2014 and it appears this is the meeting to which Mr Kelly refers. 136 Thus, as at February 2015, aside from the school and the sewerage infrastructure, the CLC was suggesting to the applicants, through Mr Midena, that the lease to ICL had been approved by traditional owners on 6 October 2014. 137 Mr Kelly then stated in the letter that: …several ICL Tribal Council members are of the view that such instructions were not given, or were not understood by the meeting, and they expressed this view to our Executive meeting on 18 March 2015. We also note your advice that even if given, such consent is now withdrawn by those individual traditional Aboriginal owners which you represent. 138 It is not clear who these "ICL Tribal Council members" were, although counsel for the applicants at trial submitted that this included, at least, Ms Marie Ellis and Ms Roseanne Ellis, the first and second applicants respectively. In other words, the CLC was identifying that some traditional owners had changed their minds between October 2014 and March 2015, including Mr Midena's clients. 139 Ms Marie Ellis' own evidence is not consistent with the proposition that she and her sister were members of the Tribal Council. According to her affidavit of 7 April 2017, she and Ms Roseanne Ellis were not members of the Tribal Council, they were only members of the "Community Council". On her evidence, the Tribal Council consisted of senior traditional owners. Ms Marie Ellis appeared to accept she was not a "senior" traditional owner. As at 7 April 2017, on Ms Marie Ellis' evidence, the Tribal Council comprised: Clement Alice Katherine Alice Marcia Alice Marina Alice Theo Alice Theresa Alice Edward Neal (Ross) Maree Oliver Rosalie Riley Elaine Ross (Hayes) 140 Mr Jeffrey Oliver was not a member of the Tribal Council, but as a senior traditional owner, Ms Marie Ellis deposed he was to be invited to meetings. 141 Mr Kelly also acknowledged Mr Midena's indication that even if consent had been given, it was now withdrawn by Mr Midena's clients, although as the text of the letter demonstrates, consent was withdrawn in relation to the Northern Territory leases, not the leases to ICL. Nevertheless, Mr Kelly stated that the CLC would not act on the purported instructions received in October 2014, but would seek further instructions. 142 Mr Kelly then set out his responses to various allegations in Mr Midena's letter of 24 February 2015. Relevantly, Mr Kelly indicated that the CLC did not accept that the traditional Aboriginal owners of Amoonguna "as a group" had adopted the decision-making processes of the ICL. Mr Kelly indicated the CLC's view that "at times throughout this process, there has been significant resistance among traditional Aboriginal owners to the ICL lease application." Mr Kelly stated that: To be frank, your inability to acknowledge this suggests to us you are taking instructions from a very narrow group of traditional Aboriginal owners, which is then represented as the comprehensive view of the group. 143 Given the composition of the ICL Tribal Council, it seems to me that is a difficult proposition for Mr Kelly to sustain. Mr Midena was not cross-examined at all. It was never put to him or any other witness (such as Ms Marie Ellis) that the members of the ICL Tribal Council did not give Mr Midena the instructions he set out in this correspondence. 144 Nevertheless, Mr Kelly requested that Mr Midena identify the particular traditional Aboriginal owners whom he represented. It does not appear from the evidence that Mr Midena ever responded to that request. 145 It appears that support for the ICL lease by at least one traditional owner did change over time. That can be found as a fact to be the situation with Mr Phillip Alice. As I have noted, his evidence was that he remained a member of the ICL. He was identified by Mr Midena, in a signed petition dated July 2013 annexed to Mr Midena's first affidavit, as having given consent to the ICL lease and there was no cross-examination of Mr Midena, nor any submissions, to suggest this did not reflect the facts at the time Mr Midena made those statements. In his affidavit in this proceeding, Mr Alice deposed that he changed his mind about the ICL lease. He was not cross-examined about this, nor did he give any details of when he changed his mind or why, save to say in his affidavit that: In the early days of ICL, me and other members of my family had been supporters of ICL, but later I believed that Marie Ellis, Roseanne Ellis and Lynette Ellis were not listening to the senior traditional owners and what they wanted. 146 There is then something of a gap in the chronology, and I accept counsel for the applicants' submission that discussions about the ICL lease, and the impugned lease proposals, were suspended for some time, or at least that no further material negotiations or events occurred. 147 By the middle of 2016, the lease proposals seem to have been revived. In June, July and September 2016 a series of meetings occurred, culminating in the key meeting on 12 October 2016 at the Chifley Hotel in Alice Springs. The three earlier meetings were conducted by the CLC as "information meetings" about the competing lease proposals. Not everyone who attended the October 2016 meeting had attended the other meetings, and not everyone who had attended earlier meetings was at the October 2016 meeting. This statement applies both to traditional owners and also to CLC staff. For example, Ms Wilmot, the CLC anthropologist, was at the October meeting but not the September one. Ms Elaine Ross, a traditional owner and a member of the ICL Tribal Council, was at the September 2016 meeting but did not attend the October 2016 one. 148 What happened at the 12 October 2016 meeting was the subject of considerable evidence. Some of the debates about what occurred, and some of the details about who said what, are ultimately not material to the findings the Court must make. Where detailed findings need to be made about who said what, or who did what, I make those findings at [267]-[279] below. It suffices here to give a general description of what occurred. 149 The meeting was referred to by the CLC in its notices and minutes as a "consultation meeting", in contrast to the earlier ones which were described as "information meetings". It was attended by a number of key CLC employees, including Mr Gosford and Ms Wilmot. Ms Ellis' evidence was that the meeting was attended by a number of traditional Aboriginal owners including Ms Ellis herself, Ms Roseanne Ellis, Mr Phillip Alice, Mr Theo Alice, Ms Lynette Ellis (former President of the ICL), Mr Clement Alice, Mr Mark Alice, Ms Marcia Alice and Mr Joseph Alice. According to Ms Wilmot, a number of these individuals are among the most senior traditional owners (namely Mr Theo Alice, Mr Mark Alice and Mr Joseph Alice). Ms Wilmot's evidence indicates she believed there were 19 people who attended the meeting who fell into the category of "traditional owner", although Ms Wilmot includes in this number members of the Tilmouth family, about whom there is at least some degree of debate in terms of their status as traditional owners: see [192]-[193] below. 150 No CLC Committee members were in attendance. 151 Two traditional owners who were not at the 12 October 2016 meeting were Ms Elaine Ross and Mr Jeffrey Oliver. Both these individuals were identified as "senior traditional owners" and Ms Ross was also a member of the ICL Tribal Council. Although Mr Oliver was not a member of the Tribal Council, as a senior traditional owner, Ms Marie Ellis deposes (and I accept) that he is to be invited to their meetings. Their absence is one of the matters Ms Ellis made a point of at the meeting, and also one of the matters the applicants rely on to challenge the CLC's formation of satisfaction that traditional owners "as a group" consented to the grant of the impugned leases. 152 It is agreed between the applicants and the CLC that, according to "Arnpirrentye" (or Arrernte traditional law), Mr Oliver is the senior "kwertengerle" for Amoonguna land. It is also agreed that Ms Ross is an "apmereke-artweye" for Amoonguna land, however the applicants claim that Ms Ross is the senior apmereke-artweye, a claim disputed by the CLC, including by Ms Wilmot. In English usage, "kwertengerle" roughly translates to "manager" while "apmereke-artweye" roughly translates to "owner", although both the applicants and the CLC agree that the English translations are only approximate. Ms Marie Ellis gave evidence, which I accept, that together, the apmereke-artweye and the kwertengerle have primary responsibility for looking after the Amoonguna land and authorising what occurs on that land. There are some differences in the evidence as to how the apmereke-artweye and the kwertengerle make decisions, particularly as to the extent to which the senior apmereke-artweye and the senior kwertengerle are required to be consulted for decision-making, and the role of senior apmereke-artweye men and women. The applicants and the CLC agree Mr Oliver's consent as the senior kwertengerle was required for traditional decision-making, however the parties disagree as to whether Ms Ross' consent was required. Ms Wilmot's affidavit evidence was: Jeffrey Oliver is the Antulye estate group key senior kwertengerle for matters affecting Amoonguna. His mother's father was George Ross Penangke and he has acquired the relevant cultural knowledge to hold this position since his older brother passed away some years ago. There are a number of other members of the Antulye estate group who hold kwertengerle positions. Of the same generation, Edward Neal also holds a mother's father connection to George Ross' brother. There are also a large number of kwertengerle in the next generation, including Marie Ellis and Roseanne Ellis. The traditional decision-making process for these Aboriginal people in matters affecting country is primarily one of consultation amongst the senior apmereke-artweye men. There is no requirement that all senior apmereke-artweye men must be consulted. There is no requirement that all senior apmereke-artweye men must be present at the same time. This is not to say that it is only the senior men who make the decision. There are women who are traditional Aboriginal owners. However, no decision can be made if the senior men are not involved. There is no requirement for unanimity, but usually a consensus is arrived at for a decision to be made. … In my twelve years experience with Antulye estate group decision making processes, I have not been told by members of the groups that Elaine Ross is regarded as a key apmereke-artweye member of the group, or the senior one since the passing of the key senior apmereke-atweye Oswald Alice in 2010, I have been told by members of the group that Theo Alice, Mark Alice and Joe Alice are now key senior apmereke-artweye. … As stated above, Elaine Ross is an apmereke-artweye for Antulye estate group which includes Amoonguna land, but she is not the senior apmereke-artweye. (Emphasis in original.) 153 It was at this meeting that the CLC contends the traditional Aboriginal owners made a decision consenting, as a group, to the CLC directing the AALT to grant the leases to the Northern Territory, the Council, the Congress and the IES. The CLC relies on the evidence of Mr Phillip Alice, Mr Gosford and Ms Wilmot, all of whom were called as witnesses in this proceeding. 154 There are no minutes of this meeting, nor of the three before it. In evidence were documents handed out by the CLC at the meeting. Mr Gosford's file note of the September and October 2016 meetings and Ms Wilmot's memorandum to Mr Gosford after the October 2016 meeting are in evidence. There is also the summary prepared for the CLC Committee by, it appears, Mr Gosford. The applicants sought to tender a transcript of the meeting, prepared from a recording of it made by Ms Marie Ellis, then transcribed by Mr Midena. They also sought to tender the recording itself. Ultimately the respondents did not object to the tender of the transcript. In light of that position, I rejected the tender of the recording under s 135 of the Evidence Act 1995 (Cth). 155 It is not clear from the evidence when the proposed leases and licence to entities other than the Northern Territory (namely, the Council, Congress and IES) emerged. It appears that at some stage prior to the Chifley Hotel meeting, the proposed leases expanded from only those leases to the Northern Territory government, to leases and a licence including these three additional entities. 156 The applicants contend that Mr Oliver and Ms Ross were required to be present at any meeting in which decisions about interest in the Amoonguna land were to be made. The CLC contends that Mr Phillip Alice, who is an apmereke-artweye (but not a senior apmereke-artweye), had received the consent of both Mr Oliver and Ms Ross, and provided their consent in the meeting on their behalf. Mr Gosford also indicated at the meeting that he had spoken to Mr Oliver and that Mr Oliver had conveyed to him that he would agree with any decision made at the Chifley Hotel meeting. The applicants dispute this, and Ms Marie Ellis made it known at the meeting that she thought Mr Oliver and Ms Ross were required to be at the meeting. At trial, the applicants adduced evidence from both Mr Oliver and Ms Ross who claim they did not provide their consent to Mr Alice. I return to this later in these reasons. 157 Following the Chifley Hotel meeting, reports were prepared for the CLC Committee. These reports were prepared by Mr Gosford and Ms Stephanie Campbell, another CLC lawyer who was not present at the Chifley Hotel meeting. In summary, the papers advised the Committee that the CLC had consulted with traditional Aboriginal owners and that consent was given by them to each of the proposed grants. The nature and extent of these reports is material to this proceeding, and indeed, my reasoning turns on what these reports say, and what they do not, as well as the findings I make about what happened at the meeting of the CLC Committee. It is therefore necessary to deal with these matters in some detail, and I do this below at [311]-[332]. 158 At its meeting on 19 October 2016, the CLC Committee gave a direction to the AALT pursuant to s 19(5) of the Land Rights Act to enter into the impugned leases. Amoonguna was not the only community about which the CLC Committee made decisions that day directing the disposition of interests in community land. The Committee gave directions to a number of other Land Trusts as well. 159 The Committee also gave a direction to the Chairman and an executive member of the CLC to affix the common seal of the AALT to each of those documents. 160 On the same day, 19 October 2016, Ms Jasmin Rucioch, an employee of the CLC (but not a member of its Board or of the Committee) affixed the common seals of both the CLC and the AALT to the leases and licence. 161 Subsequently, several weeks' later on 11 November 2016, members of the AALT each completed a written authorisation for the affixing of the AALT's common seal to those leases and licence. The proposed leases and licence were then given to the Northern Territory, Council, Congress and IES. The Council and Congress executed their respective agreements and delivered them to the CLC, however neither the Northern Territory nor IES ever executed their respective agreements. 162 This proceeding was then commenced by the applicants, with an ex parte interlocutory application filed on 23 November 2016 for orders suspending the operation of the CLC's directions to the AALT. That ex parte application was resolved without a hearing, and the proceeding was then regularly issued, with the undertakings to which I have referred at [44] above preserving the status quo pending the Court's decision.

[18]

Ground 1: CLC's satisfaction of consent of traditional owners 164 Ground 1 is expressed as follows: The Applicants contend that the Executive Committee did not lawfully form a state of satisfaction under section 19(5)(a) of the ALRA that the traditional Aboriginal owners of the Amoonguna Land understood the nature and purpose of each of the proposed grants and, as a group, consented to them, and thereby the CLC Decisions each involved an error of law of one or more of the kinds described in section 5(1)(b), (d), (e), (f) and (g) of the ADJR Act, or were otherwise contrary to law within the meaning of section 5(1)(j) of the ADJR Act, or were otherwise affected by jurisdictional error so as to attract the jurisdiction of the Court under section 39B(1A)(c) of the Judiciary Act. Particulars i. The Executive Committee was required to, but did not, lawfully consider and identify who the traditional Aboriginal owners of the Amoonguna Land were before making the CLC Decisions. ii. The Executive Committee was required to, but did not, lawfully consider and identify what process of decision-making was applicable in determining whether or not the traditional Aboriginal owners of the Amoonguna Land "as a group" consented to the proposed grants before making the CLC Decisions. iii. The Executive Committee was required to, but did not, lawfully consider and identify what (if any) process of decision-making was in fact adopted by the traditional Aboriginal owners of the Amoonguna Land with respect to whether or not to consent to the proposed grants before making the CLC Decisions. iv. Further or alternatively, insofar as the Executive Committee did purport to consider the matters identified in particulars i to iii above, it did so in accordance with a process that effectively but unlawfully delegated that process of consideration to a CLC officer (or officers) who conducted a meeting (or meetings) with some traditional Aboriginal owners (including a meeting at the Chifley Hotel in Alice Springs in the Northern Territory on 12 October 2016) but who was (or were not) a member (or members) of the CLC 165 The applicants characterise the CLC's satisfaction about the consent of traditional owners as a group as a precondition to a valid direction under s 19(5). 166 The applicants do not challenge the delegation of the decision-making function under s 19(5) of the Land Rights Act by the CLC Board to the CLC Committee. However, the applicants submit that some level of fact finding about traditional owner consent had to be done by the CLC Committee itself. Information needed to be accurately conveyed to the Committee, and it had to be given enough information to form the requisite state of satisfaction for itself. The applicants accept there is nothing legally impermissible with a summary being conveyed to a decision-maker, so long as it is accurate and complete. By analogy with ministerial decision-making, the applicants accept that a "brief" or "briefing note" could be prepared for the CLC Committee, but that "brief" must have the characteristics of accuracy, detail and completeness for which the applicants contend. 167 The applicants submit that in order for the CLC lawfully to form a positive state of satisfaction in the present circumstances, the CLC Committee was required to at least identify who the traditional Aboriginal owners were, and to consider the process by which their consent was obtained. The applicants submit this did not occur. 168 Grounds 1 and 2 contend that the CLC could not form the requisite state of satisfaction for two distinct reasons. Under ground 1, that is because the CLC did not have the information it required: who the traditional owners were, which of them were at the October 2016 meeting, what the decision-making process was, and what views were expressed. In contrast, ground 2 (reproduced at [176] below) appears to challenge the absence of any probative basis on which the decision could have been made, even if the CLC Committee attempted to do so. It would appear that the second ground expresses a consequence of the situation on which the first ground is premised. 169 The CLC submits that, provided the material before the decision-maker (here, the CLC Committee) rose above a "mere assertion of a conclusion of satisfaction", then there was enough material on which the Committee could form a state of satisfaction. Expressly by s 27(1)(b), a Land Council (and its delegate) was entitled to obtain advice and assistance from persons who are "expert in any matter with which the Council is concerned". The CLC Committee was entitled to rely on the advice of Ms Wilmot, and of Mr Gosford as one of the CLC's lawyers. 170 The CLC relies on the decision of Kenny J in Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2014] FCA 25; 220 FCR 202. It submits that in Gondarra, the Court held that the Land Council having made an express statement to the Minister of its satisfaction under s 23(3), in terms which involved more than "mere assertion", it was open to the Minister to act on the statement, and to similarly be so satisfied, under s 27(4) of the Land Rights Act. 171 The CLC says that on the facts, the Court can be satisfied the material was circulated before the meeting and that it can be inferred that the CLC Committee members had an opportunity to read the papers, including Mr Gosford's report. It submits the Campbell meeting paper contained more than the applicants have suggested. The circulation of the papers beforehand is said to meet the applicants' submissions about what inferences can be drawn from the Minutes of the meeting in terms of how the decision-making proceeded. 172 The CLC says the paper circulated by Ms Campbell was sufficient in itself, and contends that the contents of that paper are more substantive than the applicants alleges. In the alternative, the CLC submits the information in the paper from Mr Gosford, also circulated to the Committee, contained more than sufficient information on which the Committee could form the requisite state of satisfaction.

[19]

Ground 2: lack of evidence to form satisfaction of consent of traditional owners 173 Ground 2 is expressed as follows: Further or alternatively, the Applicants contend that the Executive Committee's purported state of satisfaction that the traditional Aboriginal owners of the Amoonguna Land understood the nature and purpose of each of the proposed grants and, as a group, consented to them was not open on the information before it, and thereby the CLC Decisions each involved an error of law of one or more of the kinds described in section 5(1)(b), (d), (e), (f) and (g) of the ADJR Act, or were otherwise contrary to law within the meaning of section 5(1)(j) of the ADJR Act, or were otherwise affected by jurisdictional error so as to attract the jurisdiction of the Court under section 39B(1A)(c) of the Judiciary Act. Particulars i. The Executive Committee had before it information to the effect that, prior to a meeting conducted at the Chifley Hotel on 12 October 2016, no decision had been made by the traditional Aboriginal owners of the Amoonguna Land to consent to the grants. ii. The Executive Committee had before it information to the effect that only some of the traditional Aboriginal owners of the Amoonguna Land were present at the Chifley Hotel meeting. iii. The Executive Committee had no information before it to the effect that the traditional Aboriginal owners of the Amoonguna Land who were absent from the Chifley Hotel meeting consented, "as a group" together with the traditional Aboriginal owners who were present at the Chifley Hotel meeting, to the grants. 174 As I have noted, ground 2 appears to identify a consequence of what is alleged in ground 1. In other words, the fact (on the applicants' case) that the CLC Committee did not have the necessary material before it, meant that it lacked any sufficient probative evidence on which to form the necessary state of satisfaction before it could lawfully give the direction. 175 In particular this ground appears to focus on the information available to the CLC Committee, from the reports to it by Mr Gosford, that there was opposition from some traditional owners to the impugned lease proposals, and that some key traditional owners were not present at the 12 October 2016 meeting. 176 The CLC responds to this ground with the submission that legal satisfaction under the Land Rights Act does not require unanimity of all traditional Aboriginal owners, because the statute focuses on consent given "as a group". The CLC submits s 19(5) should be construed taking into account that by its composition, expertise and functions, a Land Council is a specialised and representative body, which is well suited to assessing whether there is consent of traditional owners "as a group". It further submits that there may be legitimate differences of opinion as to what approaches might be taken, but since the legal criterion is satisfaction, not objective existence, within the bounds of what is a legally reasonable, fair and rational approach, it is a matter for the Land Council to determine consent "as a group".

[20]

Ground 3: denial of procedural fairness 177 Ground 3 is expressed as follows: Further or alternatively, the Applicants contend that a breach of the rules of natural justice occurred in connection with the making of the CLC Decisions within the meaning of section 5(1)(a) of the ADJR Act, the CLC Decisions each involved an error of the kind described in section 5(1)(d) of the ADJR Act, and the CLC Decisions were also affected by jurisdictional error so as to attract the jurisdiction of the Court under section 39B(1A)(c) of the Judiciary Act. Particulars i. As noted above, the Chifley Hotel meeting was conducted by a CLC officer (or officers) who were not members of the CLC. ii. Following the Chifley Hotel meeting, CLC officer Bob Gosford prepared an "Information Paper" for consideration by the CLC. iii. Insofar as the "Information Paper" advised the Executive Committee that, at the Chifley Hotel meeting, traditional Aboriginal owners consented to the proposed grants, that advice was inaccurate or misleading. iv. At least some traditional Aboriginal owners who were present at the Chifley Hotel meeting indicated that they did not consent to the proposed grants. Some traditional Aboriginal owners who were present at the Chifley hotel meeting made claims about what the applicable traditional decision-making process was, and in particular made claims to the effect that certain other traditional Aboriginal owners (who were not present at the meeting) needed to be present at any meeting at which a decision to consent to the grants was to be made, and need to be involved in the decision-making process. Other traditional Aboriginal owners who were present at the Chifley Hotel meeting gave no indication that they consented to the proposed grants. Other traditional Aboriginal owners were absent from the Chifley Hotel meeting, and did not otherwise indicate their consent (singly or as part of a "group") to the proposed grants. v. Accordingly, the process by which the Executive Committee sought to "hear" from the traditional Aboriginal owners of the Amoonguna Land, for the purpose of forming a state of satisfaction as to whether the traditional Aboriginal owners as a group consented to the groups, miscarried. The responses (or non-responses) provided by various traditional Aboriginal owners to the proposed grants in accordance with the hearing process established by the CLC or the Executive Committee were not accurately or comprehensively conveyed to the decision-maker vested with the function of forming the requisite state of satisfaction. 178 The applicants submit procedural fairness is owed to each individual person who falls within the terms of s 71(1), and has the rights conferred by that provision. That is because any direction to grant an interest in Aboriginal land affects not only the rights of all persons who enjoy those rights under s 71(1), but also affects their interests in that land. The fact that an individual holds an interest in land in common with other persons identified as traditional owners of the same land does not mean the individual's legal interests in that land are not affected by a direction which results in the creation of a new and separate legal interest in that land in a third party. To the contrary, the applicants submit they clearly are. 179 The CLC made a submission, somewhat faintly, that s 19(5) may not be conditioned with any obligations of procedural fairness at all. For the reasons I set out at [378]-[379] below, I doubt that is correct, but it need not be finally determined in this proceeding because of the view I have taken on the applicants' ground 3, even on the premises most favourable to them. 180 More particularly, the CLC denies that s 19(5) is conditioned by any obligation of procedural fairness to individual traditional owners. It submits the Land Rights Act is concerned with group or communal rights and interest, and group or communal title to land. While it accepts that the rights conferred by s 71(1) are also conferred on traditional owners as individuals, it submits this does not necessarily mean that there are individual procedural fairness entitlements in relation to decision-making under s 19 of the Land Rights Act. Further, it submits that in the circumstances, the impugned leases had no legal effect on the s 71(1) rights (or interests) of traditional owners of Amoonguna land: the land was occupied in any event, and had previously been used for the purposes for which it would be used under the impugned leases. In other words, the CLC submits in a practical sense there was no alteration to, or diminution in, the interests held by individual traditional owners in the Aboriginal land the subject of the impugned leases: the land simply continued to be used in the way it was currently being used. 181 As the CLC points out in its written submissions, the applicants' argument is that the briefing papers did not mention those who dissented at the meeting and those who were absent from the meeting but who held senior positions in the group. The way this is put as a denial of procedural fairness is that the applicants submit there has been a "split" of the hearing and decision-making function between Mr Gosford and the CLC Committee. In substance, the applicants submit Mr Gosford was given the hearing function at the 12 October 2016 meeting. However, having conducted the "hearing", he did not convey all of the material information back to the CLC Committee because he did not inform the Committee about those who dissented (and why they dissented), nor about those senior people who were absent. Instead, Mr Gosford referred to some traditional owners abstaining from the vote, which the applicants submit was an incorrect and self-serving description of what had occurred. The "split" of the hearing and decision-making, where the outcome of the hearing is not accurately conveyed to the decision-maker, constitutes a denial of procedural fairness on the applicants' contentions. The applicants rely for this aspect of their argument on Jeffs v New Zealand Dairy Production and Marketing Board [1967] 1 AC 551.

[21]

Ground 4: non-provision of the actual leases 182 Ground 4 is expressed as follows: Further or alternatively, the Applicants contend that a breach of the rules of natural justice occurred in connection with the making of the CLC Decisions within the meaning of section 5(1)(a) of the ADJR Act, and were also affected by jurisdictional error so as to attract the jurisdiction of the Court under section 39B(1A)(c) of the Judiciary Act, and/or that the CLC or Executive Committee otherwise constructively failed to exercise its jurisdiction so as to attract the jurisdiction of the Court under section 39B(1A)(c). Particulars i. The CLC or Executive Committee was required to, but did not, provide a copy of the draft Instruments to the traditional Aboriginal owners of the Amoonguna Land before it made the CLC Decisions. ii. The CLC or Executive Committee did not give the traditional Aboriginal owners all of the information in the Instruments before it made the CLC Decisions. iii. Accordingly, there was a breach of the rules of natural justice. iv. Further or alternatively, in these circumstances, it was not open to the Executive Committee to be satisfied that the traditional Aboriginal owners had, as a group, consented to the proposed grants. 183 This is a confined ground. The parties agree the impugned leases and licence themselves were not provided to the traditional owners at the meeting. The debate on this ground concerns the level of information the CLC was required to provide. The applicants rely in part on Kenny J's distinction in Gondarra (at [72], [91]-[95]) between what is required to discharge a procedural fairness obligation in relation to an obligation to "consult" and what is required where the consent of another person is required. The applicants also contend on the evidence that there was an express request, through Mr Midena, to see the leases and licence themselves, and that Ms Marie Ellis also asked at the meeting to see the leases and licence. 184 Aside from submitting that the evidence discloses the traditional owners were, as a matter of substance, given sufficient information about the leases and licence (through the handouts prepared by the CLC), the CLC also submits that the applicants' contentions on this ground sit uncomfortably with the concept of procedural fairness, which concerns the disclosure of adverse information a decision-maker may take into account.

[22]

Ground 5: failure to consider the identity of the traditional owners and their decision-making processes 185 Ground 5 is expressed as follows: Further or alternatively, the Applicants contend that, in purporting to be satisfied that the traditional Aboriginal owners of the Amoonguna Land understood the nature and purpose of the proposed grants and as a group consented to them, the Executive Committee failed to have regard to relevant evidence and thereby the CLC Decisions each involved an error of law of one or more of the kinds described in sections 5(1)(d), (e) or (f) of the ADJR Act, or were otherwise contrary to law within the meaning of section 5(1)(j) of the ADJR Act, or were otherwise affected by jurisdictional error so as to attract the jurisdiction of the Court under section 39B(1A)(c) of the Judiciary Act. Particulars i. At the time the CLC Decisions were made, the CLC possessed records relating to the identity of the traditional Aboriginal owners of the Amoonguna Land and their decision-making processes, including in particular CLC Records file 2013-5018, and also CLC Records files 2014-394, 2013-326 and 2006-479 (the Existing Material). ii. The CLC considered that the Existing Material showed that issues relating to the identity of the traditional Aboriginal owners of the Amoonguna Land were "extremely complex". iii. Neither the Existing Material, nor even a synthesis or summary of the Executive Material, was before the Executive Committee when it purported to make the CLC Decisions. iv. The Existing Material was relevant to whether the Executive Committee could be satisfied, on the other material before it, that the traditional Aboriginal owners of the Amoonguna Land understood the nature and purpose of the proposed grants, in particular because it was relevant to the identity of the traditional Aboriginal owners and their decision-making processes. v. In the circumstances, and having regard to the framework of the ALRA: A. the failure of the Executive Committee to have regard to the Existing Material involved a constructive failure to exercise the Executive Committee's jurisdiction; and B. further or alternatively, it was legally unreasonable for the Executive Committee not to have regard to the Existing Material. 186 This ground is couched, as can be seen, as a failure to consider relevant material. The applicants submit that by s 19(5), traditional owner consent as a group is made a relevant consideration by the statute. Therefore, in assessing that consideration, the applicants submit a Land Council must look at the three matters identified by this consideration: who are the traditional owners, what decision-making process was adopted and what are the "raw facts" about how a decision was made, the term "raw facts" being counsel for the applicants' description. 187 For the CLC, Senior Counsel accepted in oral submissions that this ground stands or falls with the CLC's submission about the way satisfaction can be formed under s 19(5). If the CLC is correct that it is able to have its officers (and expert anthropologists) synthesise and summarise the outcome of a meeting and advise the CLC Committee whether consent as a group was given, then the applicants' ground 5 must also fail. He accepted the contrary is also true.

[23]

Ground 6: brief to Mr Bagshaw 188 Ground 6 is expressed as follows: Further or alternatively, the Applicants contend that it was legally unreasonable for the Executive Committee to make the CLC Decisions without awaiting the provision of a report by an anthropologist engaged by the CLC to advise in relation to the identify [sic] the traditional Aboriginal owners of the Amoonguna Land and their decision-making processes, and thereby the CLC Decisions each involved an error of law of one or more of the kinds described in sections 5(1)(d), (e) or (f) of the ADJR Act, or were otherwise contrary to law within the meaning of section 5(1)(j) of the ADJR Act, or were otherwise affected by jurisdictional error so as to attract the jurisdiction of the Court under section 39B(1A)(c) of the Judiciary Act. Particulars i. Before making of the CLC Decisions, the CLC decided to engage an anthropologist, Geoff Bagshaw, to inquiry into and advise it in relation to the traditional Aboriginal owners of the Amoonguna Land and their decision-making processes. ii. On or about 24 October 2016 (5 days after the CLC purported to make the CLC Decisions), the CLC briefed an anthropologist Geoff Bagshaw to (inter alia): A. "[c]onduct anthropological research and provide a report detailing the traditional ownership of [AALT]"; B. "review the traditional ownership of the [AALT] and to provide clear and concise advice on who is a traditional owner of the land trust as per the statutory definition in the [ALRA]"; C. specifically, advise on "whether a specific family group [the Tilmouth and Satour families] are traditional owners of the [AALT]"; D. advise as to "the content and accuracy of anthropological references, particularly in relation to definitions, assertions and application of traditional ownership or the exercise and nature of Arrente traditional decision-making (among other matters) that occur in the various documentation prepared on behalf of [ICL]"; and E. provide a report to the CLC including, inter alia: (i) "[a]n explanation of the traditional land tenure system(s) in the area with reference to relevant sacred sites and dreamings"; (ii) "[i]dentification of traditional owner groups affiliated with the area and the nature of that group affiliation, with reference to sites, dreaming tracks, and traditional estates"; "updated genealogies and/or lists of the relevant native title custodians"; and (iii) "[a]n anthropological analysis (if considered appropriate upon review) of the material produced by [ICL] concerning decision-making and land interests at Amoonguna ALT". iii. The CLC required Mr Bagshaw to produce his report within 15 days. iv. As part of the brief to Mr Bagshaw, the CLC provided or made available the Existing Material. v. By implication, the CLC briefed Mr Bagshaw to conduct the research, and provide the advice and report described above, because it was uncertain of the reliability of the Existing Material (whether as to the accuracy or comprehensiveness) in relation to the identity of the traditional Aboriginal owners of the Amoonguna Land and their decision-making processes. vi. The CLC Decisions, if lawfully made, would require the AALT to grant interests in Amoonguna Land (including exclusive leases of up to 40 years duration) to third parties. vii. In the circumstances, and having regard to the framework of the ALRA, it was legally unreasonable for the Executive Committee to exercise its power to make the CLC Decisions where an obvious inquiry about a critical fact or facts (including the identity of the traditional Aboriginal owners) had not yet been completed. 189 The applicants maintain, and it is not disputed on the facts as I understand it, that Mr Bagshaw had been retained by the CLC to undertake an inquiry into membership of the traditional owner group for Amoonguna. A major reason for this was the ongoing question over the status of the Tilmouth/Satour families in Amoonguna. The evidence discloses that at the 12 October 2016 meeting, Mr Gosford did refer to the CLC having engaged Mr Bagshaw to undertake a review of traditional ownership at Amoonguna, but without any further details. 190 The brief to Mr Bagshaw identified a retainer to inquire into the status of the Tilmouth/Satour families in Amoonguna and a broader strand. The broader strand concerned the question of who were the traditional owners and who was able to make decisions for country, including some of the matters Ms Marie Ellis had raised on an ongoing basis about traditional owner decision-making for Amoonguna land. Mr Bagshaw's brief relevantly required him to provide advice on the following: The project is to review the traditional ownership of the Amoonguna Aboriginal Land Trust and to provide clear and concise advice on who is a traditional owner of the land trust as per the statutory definition in the Aboriginal Land Rights Act (NT) 1976. Advice is required on whether a specific family group are traditional owners of the Land Trust area or whether they possess any traditional rights (not amounting to traditional ownership as defined in the Land Rights Act), and the reasons for that assessment. This advice will be required in relation to the Tilmouth and Satour families and their occupation of an area of the Amoonguna Aboriginal Land Trust known as the "Amoonguna Farm" and will require an assessment of the basis of their occupation and any entitlement they may have according to traditional Aboriginal decision-making for their continuing occupation of that land. Advice is also required in regard to the content and accuracy of anthropological references, particularly in relation to definitions, assertions and application of traditional ownership or the exercise and nature of Arrernte traditional decision-making (among other matters) that occur in the various documentation prepared on behalf of the lmwernkwenhe Community Limited (ICL), a registered charity that has made wide-ranging and controversial assertions concerning the exercise of traditional Aboriginal rights and interests apparently "gifted" to ICL by its members. The briefing information provided outline the history of these matters and attempts by the staff of the Central Land Council to address these matters. An independent consultant's report is required by the Central Land Council in order that the findings may be considered and appropriate action taken to address matters arising. The situation is extremely complex and will require very sensitive treatment by the consultant. 191 As part of this brief, Mr Bagshaw was required to complete a report to the CLC's anthropology section, which included, among other matters: … • Identification of traditional owner groups affiliated with the area and the nature of that group affiliation, with reference to sites, dreaming tracks and traditional estates. Where the previous information on traditional ownership is updated by field work, updated genealogies and/or lists of the relevant native title and custodians should be provided, ideally by groups. • Identification of those people who traditional owners assert are not traditional owners, and the reasons why they are not under their traditions; • An anthropological analysis (if considered appropriate upon review) of the material produced by the lmwernkwenhe Community Ltd (ICL) concerning decision-making and land interests at the Amoonguna ALT; … 192 The applicants contend that the Committee's conduct in moving to decide whether it was satisfied under s 19(5) without waiting for Mr Bagshaw's report, in circumstances where the CLC's brief to him required him to provide his report within 15 days from the day he was retained, was legally unreasonable. Relying on how the analysis proceeded in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24, the applicants describe Ms Campbell and Mr Gosford for the purposes of this argument as in a position similar to that of government bureaucrats - their knowledge about the relatively short deadline for Mr Bagshaw's report can be attributed to the decision-maker as constructive knowledge. 193 The CLC's response to this ground is not dissimilar to the other grounds. Again, the CLC accepts this ground stands or falls with the proposition that the Committee was entitled to rely on the advice of CLC officers such as Mr Gosford, Mr Connelly, Ms Wilmot and Ms Campbell. 194 Further it submits the Court can examine the knowledge and conduct of these officers in determining whether the timing of the CLC Committee decision was legally unreasonable. The CLC also submits that given the opinions of Ms Wilmot and Mr Gosford in particular that there was consent from the traditional owners "as a group", any delay could not have made a difference, and if that is the case, then legal unreasonableness cannot succeed. 195 As a separate argument, the CLC also submits that in any event, the evidence of Mr Connelly and Ms Wilmot in this proceeding make it clear that the right people for this traditional owner group had given their consent to the impugned leases, so that waiting for Mr Bagshaw's report could not have made a difference to the CLC Committee's deliberations, or their outcome. Moreover, the CLC submits that the direction to grant the leases and licence occurred in circumstances where the grantees were already in occupation, and using the land for the same purpose as envisaged under the grants. The grants therefore had no adverse legal or practical effect which warrants a "heightened approach to legal unreasonableness".

[26]

The seal contention 203 The uncontested evidence is that on 19 October 2016, Ms Jasmin Rucioch, an employee of the CLC, affixed the AALT seal to the impugned leases. 204 The applicants submit the AALT was required to use its seal to enter into a contract disposing of an interest in land, and purported to do so. The AALT recognised, the applicants contend, that the Land Rights Act (in ss 4(3) and 4(6)) assumes and requires that a Land Trust will act through the authority of its seal, affixed in accordance with the express terms of s 4(5). The applicants contend that when the seal was affixed by Ms Rucioch on 19 October 2016, there was no authority given by the members of the AALT as s 4(5) of the Land Rights Act required. 205 The applicants contend there were two defects. First, Ms Rucioch was not authorised by the CLC, the CLC Committee, or the AALT to affix the seal to the instruments of grant. The applicants contend that the only persons authorised to affix the seal of the AALT were Mr Kelly (as Chair of the CLC) and an Executive Member of the CLC, neither of whom affixed the seal. 206 Secondly, since the AALT Board had four or more members, at least three members had to authorise, in writing, the affixing of the seal, in accordance with s 4(5)(a). There was no such authorisation at or prior to 19 October 2016, and the applicants contend the authorisation must be prospective to fall within s 4(5). The authorisations in evidence, dated 11 November 2016 and signed by three members of the new Board, are said by the CLC to be retrospective, such as to amount to ratification of the affixture of the seal. The applicants contend that, as a matter of law, there could be no such ratification. Moreover, the applicants contend that the authorisations as phrased are, in any case, prospective in nature. Relevantly, the authorisations state: …authority is hereby given by the undersigned to the Chairman and an Executive member of the Central Land Council to affix the common seal… 207 Finally, the applicants contend that the authorisations in any event are still only directed at the Chairman and an executive member of the CLC, not at authorising Ms Rucioch. 208 The CLC relies on the statutory presumption in s 4(6) and contends that any breach of s 4(5) would not displace that presumption. It also contends that the power to dispose of an interest in land in s 4(3)(c) is not affected by any defect in the authority to affix a seal. The CLC contends there is no temporal requirement in the terms of s 4(5) to the effect that the authority must be given before the seal is affixed, but even if there were, the Land Trust can subsequently ratify the affixing of the seal. Finally, the CLC submits that even if there was a defect in authorisation, it does not affect the validity of the impugned leases, relying on a construction argument based on Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 as applied to s 4(5): namely, that a breach of s 4(5) is not intended by the legislative scheme of the Land Rights Act to affect the validity of proprietary interests granted to a third party under s 4(3) by the Land Trust.

[28]

The Northern Territory position in summary 212 The Northern Territory is generally supportive of the submissions made by the CLC, but advances its own submissions on some issues, adopting a somewhat different perspective. It is fair to say its perspective was pragmatic. 213 The Northern Territory (and IES) points to the function and operation of s 14 of the Land Rights Act, which provides: 14 Occupation etc. by the Crown etc. of Aboriginal land vested in Land Trust (1) Where, on the vesting in a Land Trust of an estate in fee simple in land, the land is being occupied or used by the Crown or, with the licence or permission of the Crown, by an Authority, the Crown or the Authority is entitled to continue that occupation or use for such period as the land is required by the Crown or the Authority. (2) During the period for which, by virtue of subsection (1), the Crown or an Authority is entitled to the occupation or use of land, any buildings and improvements on that land shall be deemed to be the property of the Crown or the Authority. (3) Nothing in this section prevents the granting by a Land Trust of a lease of land referred to in subsection (1) to the Commonwealth, the Northern Territory or an Authority, as the case may be, and, if such a lease is granted, the land ceases to be land to which this section applies. (3A) Nothing in this section prevents a Land Trust granting a lease of land to an approved entity under section 19A that includes land referred to in subsection (1) of this section. (3B) If land (the applicable land): (a) is of a kind referred to in subsection (1); and (b) is part of land that is leased to an approved entity under section 19A; nothing in this section prevents the approved entity granting a sublease of the applicable land to the Commonwealth, the Northern Territory or an Authority, as the case may be. (3C) If such a sublease is granted, the applicable land ceases to be land to which this section applies. (4) This section does not apply in relation to an occupation or use of land that is authorized by the Atomic Energy Act 1953 or any other Act authorizing mining for minerals and this section does not prejudice the operation of the Atomic Energy Act 1953 or that other Act, as the case may be. 214 Thus, the Northern Territory submits that the Territory, IES and the Council all occupy the land which is the subject of the impugned leases rent free as of right pursuant to s 14. The decision to enter into leases, and pay rent, can be traced to a policy decision in 2008 to rely on infrastructure leases in preference to the rights conferred by s 14, including because leases would provide an income stream to communities (through the Land Trusts). 215 It contends that the applicants' claims are misconceived (at least insofar as these three respondents are concerned) because no grant of a lease by the AALT to ICL could extinguish the rights of these three parties to occupy the land (rent free) under the terms of s 14. The "pre-existing rights" of those three parties condition the power in s 19 of the CLC to direct the AALT to enter into leases with other parties, such as ICL. 216 Due to that context, the Northern Territory submits the entire proceeding is misconceived, based as it is on a premise that there was a choice available to the CLC Committee between leases to the respondents and leases to ICL. The Northern Territory submits that premise is wrong. 217 The Northern Territory also submits that it, and IES, were in substance bona fide purchasers without notice of any flaw in the CLC Committee decision-making. They rely on this as a ground on which the Court should refuse relief, even if persuaded by the applicants' submissions that the CLC Committee decision is unlawful, or the leases were executed without authority. 218 The applicants answer the s 14 argument, on broad terms, by submitting that they seek no relief in this proceeding concerning ICL and any grant of leases to it. Rather, they only seek relief concerning the impugned leases and if they establish an entitlement to that relief in law, the relief should be granted, even if the Northern Territory is correct (which they do not accept) that s 14 would preclude the grant of a head lease to ICL. 219 The applicants answer the bona fide purchaser argument with four contentions. First, these matters only go to the Court's discretion on relief, if they are relevant at all. Second, for reasons I have summarised at [213] above, there is no lease between the AALT and the Northern Territory because the Northern Territory has not executed the lease. At most it has an equitable interest, but not one in the circumstances that equity would enforce. Next, the Northern Territory has not paid any monies and so is not a purchaser "for value". Finally, if the Northern Territory were to now execute the lease, so as to convert its interest into a legal one, it would do so at a time when it has notice of the applicants' claims.

[29]

The Land Rights Act's objectives and scheme 220 There have now been many authorities, in this Court and in the High Court, which have described and analysed various aspects of the scheme for the grant of land to Indigenous people in the Northern Territory which the Land Rights Act establishes. It is not necessary to canvass those authorities in great detail, and I refer here only to aspects relevant to the determination of the issues in this proceeding. 221 The genesis of the Land Rights Act is traced by Brennan J in his reasons of judgment in R v Toohey, Ex parte Meneling Station Pty Ltd [1982] HCA 69; 158 CLR 327 at 354-355, including the critical turning point of Blackburn J's judgment in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 where the Court found it could not recognise rights held by Indigenous people in land as proprietary rights under Australian law. Brennan J describes the effect of the scheme as restoring areas of land within the Northern Territory to "Aboriginal control": at 355. His Honour also describes the effect of s 19(5) in the following way (at 359): The usufructuary rights of Aboriginals in respect of Aboriginal land, once acquired, might be overridden by the granting of a lease or licence by a Land Trust (s. 19(3)), or by a surrender of that land to the Crown (s. 19(4)), but any of those events requires the approval of the traditional Aboriginal owners, and of any Aboriginal community or group that might be affected thereby (s. 19(5)(a) and (b)). The Aboriginal people connected with a tract of country were thus made competent to use their country in a non-traditional way if and when an Aboriginal consensus to do so should be established. 222 Justice Toohey, when Aboriginal Land Commissioner, described the objective of the Land Rights Act in the following terms (cited by French CJ in Wurridjal v Commonwealth [2009] HCA 2; 237 CLR 309 at [99]): Essentially the object of the Act is to give standing, within the Anglo-Australian legal system, to a system of traditional ownership that has so far failed to gain recognition by the courts. [Commonwealth, Aboriginal Land Commissioner, Yingawunarri (Old Top Springs) Mudbura Land Claim (1980), p 14 [70].] 223 As the plurality noted in the Blue Mud Bay case (Northern Territory of Australia v Arnhem Land Aboriginal Land Trust [2008] HCA 29; 236 CLR 24) at [50], although the scheme differs in some ways from an interest usually recorded in a Torrens system as an estate in fee simple, the Land Rights Act uses the term "fee simple" in its description of the estate granted, and that use must be given effect. 224 In Wurridjal at [18], French CJ described the role of a Land Trust under the Land Rights Act in the following way: Land Trusts are bodies corporate, established by gazetted ministerial notice "to hold title to land in the Northern Territory for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of the land concerned". They hold title to the land vested in them in accordance with the Act and exercise their powers as owners of the land for the benefit of the Aboriginals concerned (s 5). They can only act, in relation to the land, in accordance with directions given by the Land Council for the area (s 5(2)). They are not empowered to accept moneys due and owing to them or to give a valid discharge for such moneys, but moneys may be paid to the Land Council for the area (s 6). (Footnote omitted.) 225 At [20], French CJ described the power of Land Trusts to dispose of land vested in them as "conditional", with a footnoted reference to ss 19, 19A and 20 of the Land Rights Act. The consent of traditional owners is not the only matter which conditions the Land Trust's power of disposition: the Minister's consent is also essential in some circumstances. 226 At [22], having noted such a "conditional" disposition power, his Honour referred to the terms of s 23(3)(a) as imposing a prohibition on Land Councils: A Land Council is not to take any action in connection with Land Trust land unless it is satisfied that the traditional Aboriginal owners understand the nature and purpose of the action and consent to it as a group (s 23(3)(a)). 227 Although her Honour's language was different, at [395] in Wurridjal, in discussing the legislative scheme of "control" established by the Land Rights Act, Crennan J described a Land Trust as having the power to dispose of an interest in Aboriginal land (such as a lease) "provided always that it had the requisite consent of the traditional Aboriginal owners". 228 Title is held by a Land Trust for a group of Aboriginal people wider than those identified as traditional owners, hence the bifurcation in s 19(5) between consent from traditional owners as a group and consultation with any Aboriginal community who are affected. Mansfield J expressed it this way in Myoung at [18]: A Land Trust holds the title to land vested in it in accordance with the ALRA, but must exercise that ownership for the benefit of Aboriginals entitled by Aboriginal tradition to the use and occupation of the land: s 5(1)(b) of the ALRA. The persons for whose benefit that land must be held may extend beyond the traditional owners as defined to other Aboriginals who may have a traditional entitlement to use or occupy the land. 229 A Land Trust holds its title for the benefit of the Aboriginals entitled by Aboriginal tradition to the use or occupation of the land: ss 4(1), 5(1)(b), 11(1). It must not exercise its functions in relation to land held by it except under the direction of the relevant Land Council. The functions of a Land Council include protecting the interests of traditional Aboriginal owners of, and other Aboriginals interested in, Aboriginal land, and negotiating on their behalf with persons desiring to obtain an interest in such land. In carrying out those functions, a Land Council must have regard to the interests of the traditional Aboriginal owners. It is not to take action in connection with land held by a Land Trust unless satisfied that the traditional Aboriginal owners understand the nature and purpose of the action and consent to it and that any Aboriginal community or group affected by it has had an opportunity to express views to the Land Council. Except as provided by ss 19-20, a Land Trust must not deal with or dispose of any interest (including a licence) in land vested in it. A Land Council must not give a direction for the grant of an interest unless satisfied that the traditional Aboriginal owners understand and consent, that any Aboriginal affected by the grant has been consulted, and that its terms are reasonable. 230 If its express terms did not suffice (which in my opinion they do), the fact that s 19(5) is intended to operate as a constraint on the power of disposition of Aboriginal land given to a Land Council has been recognised: see, e.g Blue Mud Bay case at [49]. 231 It is also necessary to consider the Northern Territory Supreme Court decision of Alderson v Northern Land Council (1983) 20 NTR 1, which led to the enactment of s 77A of the Land Rights Act. It is important also because it concerned a factual situation not dissimilar from the present: namely, where some traditional owners opposed the grant of leases (there, mining leases) while the majority of traditional owners agreed to the leases. However, it is also important to recall that Muirhead J's reasons related to a decision on an interlocutory injunction, and as his Honour observed, were somewhat constrained because of that. Muirhead J referred (at 8) to the "delicate and complicated task" of identifying who are the traditional owners of Aboriginal land for the purposes of the consent and consultation functions given to Land Councils, finding that ultimately it is a task reposed in the Land Council. Muirhead J rejected the conditions of the plaintiffs before him that unanimity amongst traditional owners was required for there to be consent "as a group". 232 His Honour said (at 9): …I take the view that it was the intention of Parliament to leave it to the Land Council to determine whether consent has been given and if this Aboriginal body determines, after due consultation, that a majority decision should be accepted or rejected as a consensus, then it is for that body, not the court, to so determine. … One can assume that those who constitute the Land Council, and those Aboriginals who join in deliberation as to land use, well understand the sensitive nature of traditional ownership and the ties thereby created. To deny those people the right to make majority decisions, if they wish to do so would be to deprive them of a decision-making process which they may wish to adopt and which is so commonly adopted in Australian society. 233 It can be seen that the ultimate form of s 77A reflects his Honour's approach.

[30]

Statutory construction 234 There are real constructional choices about the scope and operation of s 19(5) and s 19(6) of the Land Rights Act. In SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 347 ALR 405 at [14], the plurality said: The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. (Footnotes omitted.) 235 Similarly, Gageler J (who was in dissent, but not on the principles of statutory construction) said at [37]-[39]: The task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility "if, and in so far as, it assists in fixing the meaning of the statutory text". The constructional choice presented by a statutory text read in context is sometimes between one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so characterised. More commonly, the choice is from "a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural", in which case the choice "turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies". Integral to making such a choice is discernment of statutory purpose. The unqualified statutory instruction that, in interpreting a provision of a Commonwealth Act, "the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation" "is in that respect a particular statutory reflection of a general systemic principle". (Footnotes omitted.) 236 There are two limbs to s 19(5)(a) and this should not be overlooked. There is what one might call the "understanding" limb, and then there is the "consent" limb. As it is structured, and for reasons that are apparent when the legislative scheme is considered, the text and context of the first limb makes clear that all traditional owners should "understand" the nature and purpose of the proposed grant. That understanding might be inferred by a Land Council from the manner in which the proposal has been presented to traditional owners, and the reaction and response of those to whom it was presented to. It is likely, as the facts of this proceeding demonstrate, that a proposal will be presented and discussed on more than one occasion, in a meeting situation and that information about a proposal will be available in written and oral form. There will be real factual determinations to be made by a Land Council as to whether traditional owners understand the "nature and purpose" of any proposed grant, and those factual matters must be carefully considered by a Land Council, not paid lip service to. 237 The second limb, quite separately and distinctly expressed, is the "consent limb". It is clear from the structure of para (a) that the phrase "as a group" only applies to this limb. As Muirhead J observed in Alderson at 10-11, the provisions could have been differently expressed to make it clear that the consent of each and every traditional owner was required. Even before the enactment of s 77A, in my respectful opinion Muirhead J was correct to see the provision as not imposing this kind of unanimity requirement. 238 However it is also important to emphasise that, unless there has been a specific election by the group of traditional owners under s 77A(b) for a decision-making process by majority, consent "as a group" does not mean or imply that a simple majority of traditional owners will necessarily suffice. There may be reasons related to the seniority position of certain individual traditional owners which would mean that without the consent of those individuals, there could not be consent "as a group". 239 The principles to which I have referred above are also important in ascertaining the proper construction of s 4(5) of the Land Rights Act: see [462]-[477] below.

[32]

Arrernte traditional ownership, the Amoonguna community and decision-making 242 At the outset, it is important to describe some of the key aspects of traditional decision-making amongst the Arrernte people of the Amoonguna community. This was the subject of evidence and, at a general level, was not contested, although some of the detail, as well as the consequences or relevance of these matters, was the subject of some dispute. I accept Ms Marie Ellis' evidence on these matters. Ms Wilmot's evidence was generally consistent with what Ms Ellis said, except in relation to the status of Ms Elaine Ross as apmereke-artweye, as well as the specific requirements of consultation between the apmereke-artweye and kwertengerle. Ms Wilmot conceded during cross-examination that her opinions about the content of traditional law and what is required for decision-making are based largely on what she is told by members of the group, not being a traditional owner herself. To the extent of the inconsistencies, I consider that Ms Ellis, as a traditional owner, is better placed to describe the specifics of the traditional decision-making structure of her own people. None of Ms Ellis' evidence about traditional decision-making was contradicted by any other traditional owner witness, and importantly, it was not contradicted by Mr Phillip Alice who was called by the CLC. 243 Ms Ellis described the land ownership and decision-making structure for Arrernte people in the following way: Arrernte land tenure involves a form of identification between tracts of country (in the Arrernte language, "apmere", meaning a place you belong to or your home country) and particular groups of people. The Arrernte people have belonged to the "Mparntwe", "Antulye" and "lrlpme" apmere since time immemorial. These are family kinship words. We are connected to, as one with, our apmere. …. The "Apmereke-artweye" are the people who have rights and responsibilities in accordance with Arnpirrentye (Arrernte law) arising through their descent from their arrenge (father's father) for the part of an apmere ("estate"). Kwertengerle are people who are related to a particular group of Apmereke-artweye because their atyemeye (mother's father) or their aperle (father's mother) or their ipmenhe (mother's mother) is or was Apmereke-artweye of that same group. The Kwertengerle are first cousins, by blood connection, of the Apmereke-artweye. Together, the Apmereke-artweye and the Kwertengerle have the main responsibilities for looking after the estate and authorising what goes on there. They are the traditional Aboriginal owners of the estate. Whilst our Arrernte Apmereke-artweye are often called by us in Australian language words as "owners of an estate", they actually take care of it in partnership with Kwertengerle. Sometimes, by way of explanation in Australian language, Arrernte refer to the Kwertengerle as meaning "cultural lawyer", "manager", "policeman", "spokesman" or "prime minister". They are the holders and keepers of the Arnpirrentye (Arrernte law) The Kwertengerle are to ensure that the Apmereke-artweye look after an estate according to the dictates of the Arnpirrentye (Arrernte law). Factors such as gender, knowledge, seniority and long-term residence also bear upon the strength and priority of responsibility we Arrernte people have in relation to our estates. 244 She continued later in her affidavit: Amoonguna Land is part of my grandfather's estate (that is, the estate for which my mother's father's was Apmereke-artweye). His kinship name was Pengarbe. His name was Ross. The Amoonguna Land is and has always been part of the Antulye apmere of the Arrernte. It is my mother's father's country; it is my Atyemeye-keke. That is how it is related to me and me to it. I am a senior member of the traditional Aboriginal owners of Amoonguna. 245 The evidence disclosed that the most recent anthropological description held by the CLC of Arrernte land ownership and decision-making structures in the Amoonguna community was a document prepared by Ms Wilmot in 2012. This was one of the documents Mr Bagshaw was briefed to "update". However, the applicants submit and I accept that as at the time of the CLC Committee decision-making, and also as at the time of the 12 October 2016 meeting, this was the information in the possession of the CLC which was supposed to guide its approach to consultation and decision-making within the Amoonguna community. It is conceded by the CLC that this document was not before the CLC Committee at the time it made its decision. 246 Relevantly, Ms Wilmot stated in this 2012 report: Amoonguna lies on the country of Antulye people which extends north into Alice Springs township where they were recognised as native title holders of Alice Springs by Olney in 2000; it extends south to the Ooraminna Ranges, where they received compensation for the extinguishment of Native Title over Ooraminna Homestead, in the form of a freehold block of land owned by Urremerne Aboriginal Corporation (2009). Antulye people are also native title holders for Cameco EL 25758 which lies over the Angela Pamela uranium deposit on Owen Springs. This has been a high profile tenement, much in the media, and has required their attendance to at least 10 CLC meetings since 2008. Throughout all these consultation processes, they have become quite a strong cohesive group, despite the loss of their 'leader', [redacted] in 2010, to Cancer. The structure of this group has changed since the anthropology research undertaken in the nineties to assist determination of native title over Alice Springs. The current senior generation trace their ancestry back to their grand-fathers, as is customary for Arrernte societies. Thus, current traditional owners identify themselves as descendants of George Ross Penangke and predominantly reside in Amoonguna, Santa Teresa, Titjikala and Alice Springs. Elaine Ross, Theo Alice (although he works at Atula Station), Teresa Alice & Marina Alice are senior apmereke-artweye generation TO residents of Amoonguna; Mark Alice, Joe Alice, Marcia Alice are also senior apmereke-artweye generation traditional owners, but not resident in Amoonguna. Paul Williams would be senior kwertengerle for matters affecting Amoonguna. (Identifying information removed, emphasis in original.) 247 In a document a few months earlier she also stated: Comment: With the passing of [redacted] in 2010, Antulye estate group are still working through who the next 'head man' will be. Philip Alice, while assertive, does not have the appropriate ritual authority and care should be taken, when taking instructions, that Philip does not bolster his own views by drawing on the support of the Tilmouth family. (Identifying information removed.) 248 In cross-examination, Ms Wilmot agreed her observation about Mr Alice applied also in October 2016. However she made the point that her earlier 2012 comment had been in relation to a meeting she would not be attending, whereas she was present at the Chifley Hotel meeting and in her view, if Mr Alice was not "representing the group present" at that meeting, others would have spoken up. 249 Bearing these opinions in mind, I turn now to Ms Wilmot's evidence in her affidavit in this proceeding. At [20], she expressed her opinion that the traditional Aboriginal owners who have responsibility under "Aboriginal tradition" (I infer she means specifically Arrernte tradition) for being involved in the making of decisions about proposals for Amoonguna land were those she set out in a table in this paragraph of her affidavit, as amended in her oral evidence. They were as follows: Name Sub-section Connection Theo Alice Penangke FF [Father's Father] Mark Alice Pengangke FF Joe Alice Pengangke FF Jeffrey Oliver Angale MF [Mother's Father] primary kwertengerle

[36]

250 Ms Wilmot explains that this table is divided by seniority, with the senior men first, then the senior women and younger generation of men, then the "next generation down", and finally the kwertengerle. 251 I pause here to note that Ms Marie Ellis disputes some of the details in this table. In particular, Ms Ellis considers that four other individuals (Patricia "Narli" Ellis, Grant Wallace, Jeffrey Wallace and Alvin Wallace) should be included. Ms Ellis also notes that there are some misspellings of names in the table, namely "Clemence Alice" (which should be "Clement" Alice), "Nola Ross" (which should be "Noella" Ross) and "Bonita Oliver" (which should be "Benita" Oliver). As they are not material to my decision, I make no finding as to these points of difference. 252 This was Ms Wilmot's evidence about how she reached the conclusion in her report to the CLC that the traditional owners, as a group, had consented to the grant of the impugned leases: 34. I then observed Phillip Alice, who I know as one of the senior traditional Aboriginal owners, tell Bob Gosford that they wanted to go ahead with the leases to the NT Government, IES, MAC and the Congress. No one in the room disagreed with what Phillip Alice said. Phillip also said that Jeffrey Oliver, Edward Neal and Elaine Ross, who were not at the meeting, had agreed to the leases. 35. As I have mentioned, I understand Jeffrey Oliver to be the senior kwertengerle and so he should normally be consulted by the apmereke-artweye. At the 12 October 2016 meeting Philip Alice said that senior apmereke-artweye men had met with Jeffrey Oliver to discuss the lease proposals. I was also aware that Jeffrey Oliver had attended the CLC September meeting and Bob Gosford told me that he had spoken to Jeffrey the day prior to the 12 October meeting. 36. In my experience, it is common for one of the traditional Aboriginal owners to speak on behalf of the group. Also, in my experience, if that person does not faithfully represent the views of the group, then others in the group will speak up. 37. It is and was my opinion, again based on my based on my training, study and experience as an anthropologist, including my experience in working with the group over the last 12 years, that Phillip Alice validly expressed the consent of the group of traditional Aboriginal owners who have traditional responsibility for making decisions about country. 38. At the meeting, a group of mostly women refused to participate in the decision-making about the proposals for the leases of land at Amoonguna. The women were Nola Ross, Roseanne Ellis, Marie Ellis and Lynette Ellis. Grant Ellis also joined with this group. This group did not vote against the proposal rather they signed documents that said that they would not participate in the decision. This group was also the most junior of the traditional Aboriginal owners who were present. In my opinion, this group did not, and could not under applicable Aboriginal tradition, "veto" a decision that was made by the senior men. When Philip Alice made the statements I described in paragraph 34 above, he also said something to the effect that this group of people were the nieces and nephews of the traditional owners. 39. For these reasons I am and was satisfied that the traditional Aboriginal owners understood the nature and purpose of the proposal and use agreements and, as a group, consented to them, and that this happened in accordance with the decision-making processes applicable under the Aboriginal traditional [sic] of the traditional Aboriginal owners. I did not regard my absence from the September meeting as affecting my opinions of the validity of the October instructions. 40. During the meeting, I confirmed privately to Bob Gosford that there were sufficient senior traditional Aboriginal owners present to provide instructions and I affirmed the validity of the instructions (when given by Philip Alice) by nodding my head to Bob Gosford. Immediately after the meeting, I told Bob Gosford my opinions, as set out in the previous paragraph. I then recorded my conclusions in my memorandum of 12 October 2016 to Bob Gosford so that the decisions of the group could be actioned by the CLC. This follows the usual CLC practice that the Anthropology section staff of the CLC involved in consultations on land use proposals provide to the staff who take a matter to the Council or Committee their views on whether or not the relevant traditional Aboriginal owners understand the nature and purpose of the proposal and as a group, consented to it. 253 In cross-examination, Ms Wilmot accepted that prior to the 12 October 2016 meeting, the only person on her list to whom she had spoken about that person's position on whether there was consent to the impugned leases was Ms Teresa Alice. This is consistent with what Ms Wilmot says in her memorandum to Mr Gosford, sent after the 12 October 2016 meeting. She also accepted that a number of matters affected the assessment by an anthropologist of whether there was consent by a group of traditional owners to a particular proposal - including matters such as personal conflicts within the group, reasons for people to speak up, and perceptions of various traditional owners about where money might be going. She agreed there may be different views between anthropologists about who were the senior traditional owners, although in re-examination she stated that she did not consider there was any lack of clarity in who comprised the senior apmereke-artweye of the Antulye estate group. She also agreed that, with the Amoonguna community traditional owners, there remained a high level of conflict in October 2016, as there had been for some time, and as she had observed in earlier reports to the CLC. Later in her evidence she said that the conflict "ebbed and flowed". 254 Ms Wilmot's view was that Jeffrey Oliver's opinion on the proposal, as the primary kwertengerle, would not need to be given weight, for reasons she described as "complicated". Later, she agreed that Mr Oliver's participation was "essential", but stated that the apmereke-artweye were the decision-makers. 255 In re-examination, Ms Wilmot identified some of the individuals she described as the senior decision-making apmereke-artweye who agreed to the impugned leases proposals: Theo Alice, Mark Alice, Joe Alice, Terry Alice, Marcia Alice and Marina Alice. She also stated that there was a "very small number of people that were in disagreement". I understood that to be a reference to the individuals she had identified in [38] of her affidavit, including the first and second applicants. 256 It is clear Ms Wilmot acted upon, or took at face value, the statements by Mr Phillip Alice that both Mr Oliver and Ms Elaine Ross agreed about the impugned leases, at least together with the fact (which she appeared to consider important) that no one spoke against what Mr Alice said. 257 Although there were aspects of Ms Wilmot's evidence I found less than satisfactory, I am prepared to accept her evidence as I have set it out above concerning how she reached the opinion she did, as she expressed it to Mr Gosford at the meeting. 258 I am strengthened in my conclusion by the evidence of Mr Connelly, the head anthropologist from the CLC, whom I found to be a clear and reliable witness. While he accepted in cross-examination that there were clearly disagreements between Amoonguna traditional owners about decision-making processes, it was his opinion (expressed in re-examination) that such disagreements within the group may not prevent the group reaching a consensus on a particular issue. In Mr Connelly's opinion, the group may elect to set aside their differences to come to an agreement, and this can form part of the "cultural way of acting" for Aboriginal people. That might especially be so if the disagreement is between more senior people and less senior people, where the latter may not be in a position to continue to contest a decision. 259 Mr Connelly acknowledged that if there were competing views over what Jeffrey Oliver thought about the impugned leases, then given his status in the group, it would be preferable that he attended any meeting and expressed his own views. In his opinion, this was not the case for Ms Elaine Ross, because there are others at her level of seniority. He deposed that if it were the case that Ms Ross and Mr Edward Neal were required to be present for a decision to be made, "in my experience those present would have stopped the meeting or advised they were unable to make decisions." However, he also fairly conceded other reasonable anthropologists might come to a different view. 260 Mr Connelly's evidence was that, as an anthropologist, when approaching a question like whether a group consented to a proposal, there was a "balance" between what he witnesses, what he is told by members of the group and what he has read previously. He said: …we've also recorded the views of the group over the last 40 years, and other researchers have also recorded the views of the group. 261 He considered Ms Wilmot was better placed than him to reach a conclusion about whether there was consent by the group, given the long period over which she had worked with traditional owners from Amoonguna.

[37]

An observation about the process 262 In this proceeding, there was no issue raised about the process adopted by the CLC: that is, the process of using (largely non-Aboriginal) anthropologists as the persons who express a concluded view, and recommendation, to other CLC officers (such as Mr Gosford) about whether a group of traditional owners have given consent. No challenge was made to the unstated premise of this approach that a group of traditional owners cannot have autonomy over their decision-making so that they simply convey what their views are, without the additional layer of an anthropologist interpreting what they say and do, and measuring it for consistency against prior interpretations of previous expressions of the group's views. I am not aware of any other group of people in Australia whose decision-making processes are subjected to this kind of overlay. Whether it be union members, workplace meetings, unincorporated associations, democratic bodies such as local councils, or any other form of collective decision-making, there is no requirement that a person or persons who are culturally separate, and not part of that group, somehow supervise, interpret and give an imprimatur to a collective decision-making process. The Land Rights Act does not require it. The Land Rights Act simply requires consent from traditional owners as a group. As I say, this was not an issue raised in this proceeding however, the evidence in this proceeding makes it clear that the primary source of authoritative information about what the traditional owners say is not considered to be what the traditional owners say, but rather what an anthropologist concludes from what they say, after having measured it against what has been said in the past. That process of measuring for consistency is, it seems to me, a layer of external validation which is not applied to any other form of collective decision-making by people in Australia. It is also not the evaluative process contemplated by the Land Rights Act. That evaluative process is given to a Land Council, or its delegate, all of whom are themselves Aboriginal people. It is not given to anthropologists. While it is clearly contemplated that a Land Council may receive, and use, expert advice (see s 27(1)(b)), the subject matter of s 19(5) is a matter for the indigenous members of the Land Council.

[38]

What occurred at the Chifley Hotel meeting 263 The parties agree that the question whether the "right" traditional owners did, in fact, consent to the grant of the impugned leases, or whether the traditional owners as a group, consented to the grant of the impugned leases, are not questions the Court need itself determine in order to decide the judicial review application. Bound up in this question is the issue of who, within the group of traditional owners, needs to be individually consulted, and who, within the group of traditional owners, might have more of a "say" in the decision. Again, the parties are in agreement that these assessments are difficult and complex for those on the outside looking in at Aboriginal society, even for those (such as anthropologists) who have been trained and are experienced in doing so. 264 All parties agree that if those questions needed to be answered, they were questions for the CLC Committee in performing its function under s 19(5) of the Land Rights Act. The CLC, or any committee to whom it delegates the task, is charged under the Land Rights Act with the responsibility of determining who are the traditional owners for affected land, and also for determining whether decisions have been made by the group in accordance with the Act - namely, either by a traditional decision-making process, or a previously agreed one. 265 Nevertheless, on the applicants' contentions at least, identifying the differing views amongst the group of traditional owners, and identifying who may or may not have consented, was a relevant and material task in the judicial review. That is because part of the applicants' case is that the CLC Committee was not adequately or completely informed about the nature and significance of the differing views within the group of traditional owners as to the proposed leases, nor was it accurately informed about the views of some of the senior people, in particular Mr Oliver and Ms Ross. A corollary of this is that the CLC Committee was not adequately or completely informed about the nature and significance of the views within the group about the importance of the Amoonguna community itself, through ICL, managing the leases. That is not to say the evidence reveals there were two binary "positions", and the CLC Committee had to choose between them. It seems to be part of the applicants' case that (as occurred in 2015) further information about the depth, breadth and strength of differing views might have instead caused the CLC Committee to put more resources and effort into additional consultations with the group. 266 The 12 October 2016 meeting was identified in the documents distributed at the meeting as a meeting of the AALT. I have set out at [152] above the key people who attended the meeting. 267 What I set out is drawn in part from the CLC's annotated version of the applicants' factual contentions on this aspect, in part from the documents admitted through the notice to admit filed by the CLC and, where I indicate, from other parts of the evidence. 268 During the first stage of the 12 October 2016 meeting, Mr Gosford gave some information to the assembled traditional owners about the competing lease proposals. He did not provide copies of the terms of any of the draft leases (whether those from the respondents or the proposed ICL lease). In the notice to admit were documents the parties agreed were shown to people at the 12 October 2016 meeting, and which described some terms of the impugned leases, such as their length, the proposed rental payments, and the purpose of the leases. Similar documentary information was provided in relation to the ICL lease. 269 After Mr Gosford's explanations, all the CLC officers (including Ms Wilmot) left the room. Two traditional owners also left; Ms Suzanne Davies and Mr Paul Williams. Mr Williams was a person who Ms Wilmot identified in her table and in her 2012 report (extracted at [250] above) as the senior kwertengerle for matters affecting Amoonguna. Other Aboriginal people also left the meeting. After some time, the CLC officers returned. None of the Aboriginal people who had left the meeting at the same time as the CLC officers returned, including Mr Williams. Why they left, and whether they had already expressed their views on the lease proposals, was not the subject of any evidence. 270 After the CLC officers returned, Mr Phillip Alice stated that the Alice family wanted to "sign up" for the leases to the Northern Territory, IES, Council and Congress. He stated that Ms Elaine Ross, Mr Jeffrey Oliver and Mr Edward Neal (who were absent from the meeting) did also, saying "and all of us", which I take to mean members of the Alice family. 271 Ms Marie Ellis stated that the Ross and Ellis families would need to be included. She stated that Ms Elaine Ross and Mr Jeffrey Oliver should be present, saying that Mr Oliver "should be here to talk [for] himself", and saying that she had a "different story" from Ms Ross and Mr Neal. 272 Mr Gosford then sought to move the meeting on to further "agenda items", including a discussion about the occupancy of the Amoonguna Farm, which Mr Gosford told the traditional owners would be discussed at another meeting. 273 Ms Marie Ellis said that there would need to be another meeting "just for Apmereke-Artweye and Kwertengerles - not anybody else, not residents". It was at this point that Mr Phillip Alice made a remark recorded by Ms Wilmot about Ms Ellis and "this mob" being "nephews and nieces" and not the persons with authority to make decisions. 274 Mr Gosford then asked "[t]his is a decision today of the senior group, OK?", to which Mr Phillip Alice confirmed "[y]ep." Mr Gosford went on to explain how the papers for the leases would go to the CLC Committee. 275 It is common ground that Ms Ross and Mr Oliver were absent, and that Mr Williams left before Mr Alice made his statements about a decision. It is also common ground there was no vote taken, and that of the traditional owners present (approximately 19, according to Ms Wilmot's count), most said nothing at all about the lease proposal, one way or the other.

[39]

The relevance of the witness evidence from traditional owners 276 Given the findings I have made above, and my acceptance of the CLC submissions about the confined nature of the facts relevant to the grounds of judicial review, it might be said that much of the evidence adduced from the traditional owners on behalf of the applicants (and also on behalf of the CLC) is of little or no relevance. 277 However, that evidence does confirm, in my opinion, the factual proposition that as at 12 October 2016, the time of the Chifley Hotel meeting, there were real differences of opinion between traditional owners about whether the impugned leases should be granted or whether the CLC should make an arrangement with ICL, or should make some of the kind of arrangements which gave the traditional owners within the Amoonguna community a more direct role in the activities to be undertaken in their communities on Aboriginal land. This included differences of opinion between senior traditional owners whose views were important to the group of Amoonguna traditional owners. 278 The relevance of this factual proposition to the grounds of judicial review is that any understanding by the CLC Committee that there was not such a divergence of views could be a material misunderstanding of the true situation. However, such an understanding is not necessarily the same thing as the matter on which the CLC Committee needed to be satisfied, which was whether the traditional owners, as a group, consented. For reasons I set out elsewhere, in my opinion the phrase "consent as a group" should not be construed as meaning there must be unanimity amongst the group of traditional owners, nor even unanimity amongst the senior traditional owners with decision-making responsibilities under traditional law and custom. As Mr Connelly noted, "consent as a group" may also involve some with opposing views effectively electing not to press them. The dynamics are likely to be many and various. 279 Turning then to my findings on the evidence about the divergence of views, these can be shortly stated. 280 In general terms, I found Ms Marie Ellis to be a compelling witness. Her evidence about her role in organising a wide range of matters for her community over a long period of time, including her instrumental role in the formation of ICL is indicative of her dedication to the interests of her community as she saw them. It is clear not everyone in the Amoonguna community shared her perspectives, and perhaps some saw her as too forward for her "place" within traditional decision-making structures in that community. Those are matters which may be illustrative of the challenges often facing younger, or less "senior", indigenous people in participating in decision-making under traditional models. I note there was some suggestion by the CLC that Ms Ellis had, in effect, plagiarised her evidence from parts of the judgment of Olney J in Hayes v Northern Territory [1999] FCA 1248; 97 FCR 32. I reject this suggestion, and find it without foundation. Ms Ellis was not cross-examined on this contention. She was merely asked whether she had been involved in the Hayes v Northern Territory proceeding, and whether she had read Olney J's judgment, to which she responded that she had. Ms Ellis deposed that she had also read the anthropologist's report referred to in Olney J's decision. It is hardly surprising that, when describing general Arrernte concepts such as apmereke-artweye and kwertengerle, there may be some similarity in the descriptions used. 281 There seemed to be some suggestion that Ms Ellis' insistence at the 12 October 2016 meeting that the correct people were not present, and/or had not agreed, was not genuine, or that there was some inconsistency in her position compared to other situations in the past. Having heard her evidence, I am satisfied she held a genuine concern on 12 October 2016 about the right people not being present, and about whether those who were not present (especially Mr Oliver, Ms Ross and Mr Neal) held the views Mr Alice said they did. It is unnecessary to conduct any detailed forensic inquiry into positions Ms Ellis may or may not have taken at other meetings over a number of years. I had no sense from the evidence of Ms Wilmot or Mr Gosford that their impression was that Ms Ellis' opposition was anything other than genuine. 282 Aside from these general findings, I was not persuaded that much of the cross-examination of Ms Ellis was germane to the material facts the Court needed to decide. The same might be said of much of her evidence-in-chief in her affidavit material: it may be useful, as I have observed, as background and context, but that is all. 283 The oral evidence of Mr Oliver and Ms Ross was somewhat more problematic. That is not because I found either of them to lack credibility, but there were elements of confusion, and reluctance, in their evidence. In her oral evidence, Ms Ross was reluctant to talk about her own role in traditional decision-making, or about the role of others. She was reluctant to confirm her ability to recall very much. I did not take this reluctance as affecting her credibility, but rather as a sign that she was very uncomfortable about giving oral evidence, and being in the spotlight. However in her affidavit she clearly stated that she did not agree to the grants of the impugned leases and she did not agree to the people at the Chifley Hotel meeting making decisions about Amoonguna. She was not directly challenged on this evidence in cross-examination, and what cross-examination there was related to what she may or may not have told Mr Alice, which is not necessarily the same matter as her own opinion about the impugned leases. 284 Mr Oliver's initial evidence was affected by hearing difficulties, but once those were resolved, he gave evidence in quite an adamant fashion. He also started giving his oral evidence in Arrernte but ended up giving evidence in English once his hearing difficulties were resolved. He had no difficulty in using English so far as I observed. His oral evidence was very clear. He stated that he did not want the CLC making decisions "for us traditional owners on what we can do on our own land". He denied that Mr Phillip Alice spoke to him about the school, council, health clinic, and denied that he conveyed his agreement to Mr Alice, saying "he decided himself without asking me anything". Indeed, his evidence was: "He's tried to [speak to me] many of times but I kept ignoring him" 285 Mr Oliver insisted the letter he wrote, protesting about the decision, was his "business", his decision, and that he did it for himself. In that letter, which he identified in the witness box, and which he said he wrote on 12 October 2016 (although I note the letter itself is dated 16 October 2016) he stated: I, Jeffrey Oliver, Give my notice of resignation to the Imwernkwernhe Council Limited as I have been misled by fellow members on certain matters which I did not agree on. Also I would like to concentrate on my own Homeland works management at Williams Well. I do not remember giving any permission to use my name for the decision on the 40 year old lease to the CLC which I do not agree with (12/10/2016). I would like to confirm the next generation of Apmereke-Artweye, are as follows: Elaine Ross Nola Ross Lynette Ellis Grant Wallace Jeffrey Wallace Alvin Wallace All of Amoonguna community. Signed, Jeffrey Oliver. 286 I note there was evidence from Mr Gosford that he had spoken to Mr Oliver the day before the 12 October 2016 meeting by telephone. Mr Gosford's evidence was that Mr Oliver had said to him that he would agree with any decision that was made by the senior men who attended the meeting on 21 September 2016, which he had also attended. Mr Gosford was challenged on this account in cross-examination. 287 More importantly, Mr Oliver was not cross-examined by the CLC about what Mr Gosford said. When asked whether he knew Mr Gosford, Mr Oliver said "no" and that he "wouldn't know him if I bumped into him". In contrast, Mr Oliver indicated that he did know Ms Wilmot, and had been out on camping trips with her "plenty of times". From what I saw of Mr Oliver in the witness box, and from his contemporaneous letter, the position described by Mr Gosford would seem an inconsistent one for Mr Oliver to have taken. It is not necessary to reach a concluded view whether, for example, Mr Oliver may have been confused about who he was speaking to (if it was telephone call), or Mr Gosford may have misunderstood what Mr Oliver said to him (if they did speak), or whether Mr Oliver misunderstood what he was asked. The absence of any cross-examination of Mr Oliver on this leads me to assess his evidence as he presented it to the Court, and on the basis of how it was tested. 288 I accept that Mr Oliver maintained opposition to the grant of the impugned leases to the respondents at the time of his evidence. I am unable to make a finding whether Mr Alice and Mr Gosford accurately conveyed Mr Oliver's position at the 12 October 2016 meeting. As I noted, Mr Alice had changed his mind about the competing proposals at an earlier stage. Perhaps Mr Oliver also did. Perhaps he then changed it back again before he gave evidence. People can, and are entitled to, change their minds on whether they agree or disagree with a proposal. As Mr Connelly noted, many factors may be at work in deciding to agree or disagree. Mr Oliver was not cross-examined about any of this. Nor were Mr Alice and Mr Gosford cross-examined about what they said in the meeting about Mr Oliver's position. 289 The evidence remains in a state of uncertainty, with many inconsistencies. The applicants have not discharged their burden of proving there was any material inaccuracy in the information provided to the CLC Committee (whether by omission or otherwise) concerning the views of Mr Oliver and Ms Ross about the impugned leases, as at 12 October 2016. Further, whether or not Mr Alice and Mr Gosford were inaccurate in conveying Mr Oliver's views is not determinative of the grounds of review advanced, for reasons I develop below. 290 What Mr Oliver's evidence about his continuing opposition to the impugned leases does demonstrate is that there was - at least at various times - a division of opinion amongst traditional owners, including some with seniority. The same is true of Ms Ross' evidence, although I note she subsequently authorised the affixing of the AALT seal to some of the impugned leases. These positions of these senior people were capable of being relevant for the CLC Committee's decision whether, as a group, the traditional owners consented. I return to this in my consideration of the grounds of review.

[40]

Mr Gosford's role 291 In his affidavit, Mr Gosford describes how the conclusion about the consent of traditional owners was arrived at: Following what Phillip Alice said, Helen Wilmot told me that in her opinion the right senior traditional Aboriginal owners had made a valid decision to grant the leases, that they had given their consent and made the decision, as a group, according to their traditional decision-making processes. 292 Mr Gosford then describes how he went back to the CLC offices, told Ms Campbell what had happened, and was asked by her to provide a file note of the meeting so she could prepare an agenda item for the upcoming CLC Executive Committee meeting on 19 October 2016. Mr Gosford provided his file note to Ms Campbell, who prepared an agenda paper. Mr Gosford separately prepared an "Information paper" for the purposes of the CLC Committee meeting. Both Ms Campbell's agenda paper and Mr Gosford's Information paper were sent to the CLC Committee ahead of the 19 October 2016 meeting. Mr Gosford's own file note was not sent to the CLC Committee. 293 In her second affidavit, Ms Evans deposes to the correspondence the Northern Territory government received from the CLC about the impugned leases. It will be recalled that the key meeting of traditional owners occurred on 12 October 2016. 294 On 14 October 2016, Mr Gosford sent Ms Gust of the Northern Territory Land Tenure Unit an email. It was copied to Ms Campbell at the CLC. Mr Gosford wrote: I refer to the applications by the Northern Territory government for leases at the Amoonguna Township within the Amoonguna Aboriginal Land Trust. I'm pleased to advise that following consultations with traditional Aboriginal owners of the Amoonguna Aboriginal Land Trust earlier this week that consent was given, in the terms of the proposals provided by the NTG, for leases over the following lots: • Lot 88 - Amoonguna school • lots 95, 189 and 190 - sewerage treatment works and associated facilities With regard to the sewer rising main pipeline replacement program I advise that consent was given for these works to proceed and that a CLC Sacred Site Clearance Certificate and a Consent to Construct is expected to be forwarded to you shortly. I seek your advice as to the relevant form of tenure over these works including whether they should be the subject of a lease or some other arrangement. I also advise that the CLC Executive Council will meet next Wednesday, 19 October 2016 and it is expected these matters will be presented to that meeting for ratification. If your office is able to provide draft leases following the usual template by Tuesday 18th October CLC staff will endeavour to, absent any issues arising, to have those leases executed by CLC signatories at that meeting. Please do not hesitate to contact me if you have any queries or if I can be of any further assistance. (Emphasis added.) 295 On the same day, and two hours after Mr Gosford's email to the Northern Territory Land Tenure Unit, Mr Gosford also sent an email to Mr Midena, advising him that the ICL proposal "was not accepted" at the 12 October 2016 meeting, but that the traditional owners "looked forward to the receipt of any further leasing proposal or proposals from ICL in the near future, particularly in regard to ICL's apparent interest in service provision to the Amoonguna community." Mr Midena wrote back on the same day to contest Mr Gosford's assertion that any decisions had been made at the 12 October meeting. 296 On 18 October 2016, and one day prior to the CLC Committee meeting, Mr Gosford responded to Mr Midena by email. Mr Gosford stated: I advise that the Central Land Council (the CLC) will continue to exercise its statutory duties under the Aboriginal Land Rights (Northern Territory) Act and will do so in accordance with the instructions received from traditional Aboriginal owners, in this instance on 12 October 2016. The CLC is satisfied that the consents provided by the traditional Aboriginal owners on 12 October 2016 were validly given. The CLC has considered your request for 8 weeks prior notice of any direction that may be given by the CLC to the Amoonguna Aboriginal Land Trust in respect of the grant of an estate or interest in that land but in the circumstances considers such a request unreasonable. (Emphasis added.) 297 As the applicants correctly submit, in this correspondence, Mr Gosford purports to inform the Northern Territory government and Mr Midena and his clients that consent has been given, and "validly" given, although that was not a matter for him to decide in relation to the leases. That was a matter for the CLC Committee, as a delegate of the Land Council. It is also instructive, as the applicants submit, that Mr Gosford characterises what would occur at the CLC Committee meeting on 19 October 2016 as "ratification" of what he asserts occurred at the meeting. In a later email to the Land Tenure Unit of 21 October 2016, Mr Gosford describes what occurred at the 19 October 2016 meeting as "approv[al]" of the impugned leases. These key aspects of Mr Gosford's correspondence are somewhat at odds with the scheme of s 19 of the Land Rights Act. 298 For the purposes of this proceeding however, Mr Gosford's correspondence is not the end of the matter. The question for the Court is what the CLC Committee did on 19 October 2016. If on that date the Committee acted in accordance with the Land Rights Act and gave a lawful direction, then Mr Gosford's unfounded and misconceived correspondence to the Northern Territory government, and to Mr Midena, would be of no consequence.

[41]

The application of s 77A of the Land Rights Act 299 Section 77A is a key provision in the legislative scheme. Only the applicants' written submissions expressly referred to s 77A, but in the context of a description of the scheme, including of the consent "as a group" requirement in s 19(5). 300 None of the parties addressed the operation of s 77A in terms of the decision-making of the Amoonguna community traditional owners in relation to the decision at the 12 October 2016 meeting at the Chifley Hotel. 301 So far as I have been able to ascertain, none of the material in evidence, from Ms Wilmot and Mr Gosford, delineates which of the two (alternative) methods set out in s 77A had been employed, or whether a different method had been employed, noting that s 77A does not purport to be exhaustive of the methods of decision-making adopted. Rather, it provides for a deemed outcome (by the use of the words "shall be taken to") if either of the methods specified in the provisions are employed. The only possibly relevant evidence is from Mr Connelly during cross-examination, where he stated: And so if the decision was to be made about a proposal for a long-term lease, it would be your view consistent with your understanding of the relevant traditional law, if I can put it that way, that a decision to consent to the grant of a long-term lease of land would usually require the relevant people, the Apmereke-Artweye and Kwertengerle, to get together, discuss and agree?---Yes. 302 That evidence only refers to Mr Connelly's understanding of the usual practice; it does not refer to which of the methods under s 77A were engaged at the Chifley Hotel meeting in particular. 303 The absence of any evidence, or concessions, about whether either of the methods set out in s 77A were engaged in the decision-making that culminated in the 12 October 2016 meeting is problematic. 304 A principal problem is that it makes the CLC Committee decision more difficult to assess. The Committee was not directed to the terms of s 77A in the meeting papers, nor to how it was said to apply to the Amoonguna community decision. Nor was it directed, for that matter, to how s 77A applied to the other four communities over whose land it was proposed to grant leases. 305 It would appear, from the evidence, that an assumption was made that some kind of traditional decision-making process was to be undertaken. I infer that from the emphasis placed by Ms Wilmot on whether the "right" elders and senior traditional owners had agreed. Ms Ellis' own evidence would also seem to assume this was the process, as would the extract from Mr Connelly's cross-examination. However, s 77A(a) has a curious feature, to which no attention had been paid in this proceeding, and that is that it applies where a decision of a particular kind must be made in accordance with a traditional process. There was no evidence whether that was the case in relation to a decision about the impugned leases, but again perhaps it was assumed. 306 No party appears to have paid much attention to the terms of s 77A and how those terms operated in relation to the decision-making under scrutiny here. Had I otherwise been inclined to uphold one or more of the applicants' grounds of review in relation to the challenge to the formation of the Committee's satisfaction, this issue would have had to be addressed, and determined, before any final decision could have been made about the relief.

[42]

What the CLC Committee was given, and what it was told 307 Ms Wynniatt was not cross-examined, and her affidavit evidence can be accepted as reliable, as far as it goes. 308 She deposes that the CLC Committee members had the following papers before them at the 19 October 2016 meeting: (1) Agenda for the Executive Committee meeting on 19 October 2016 being meeting no EX2016.07 (2 pages) marked MW1.1. (2) Executive Meeting Agenda Item Paper prepared by Stephanie Campbell for Resolution No. EX2016.07.170 (25 pages) marked MW1.2. (3) Proposed Resolution No EX2016.06.170 with the same subject title as the previous document (11 pages) marked MW1.3. (4) Executive Agenda Item Information Paper prepared by Bob Gosford with subject title "Amoonguna ALT - update on leasing matters and activities of Imwernkwernhe Community Limited" (6 pages) marked MW1.4. 309 It should be noted that the terms of the proposed resolution for the giving of directions under s 19 (without any further delineation between subsections) therefore been formulated in advance, not only to the AALT, but also to the Land Trusts of the other four communities whose land was the subject of proposed grants on the 19 October 2016 CLC Committee Agenda. 310 Ms Wynniatt then deposes that each of those documents was "provided" to the members of the Committee "in advance of the meeting". The applicants pointed to a reference in Mr Gosford's Information paper about an email from the CLC to Mr Midena "late yesterday afternoon", which the evidence reveals to be an email sent by the CLC at 5 pm on 18 October 2016. The applicants submit, and I am prepared to find, that this means the meeting papers were not completed until some time after 5 pm on 18 October 2016. On the evidence, the meeting commenced at 8.59 am on 19 October 2016. 311 Ms Wynniatt does not depose to how the meeting papers were "provided" to the CLC Committee members. Plainly, there was insufficient time to post them. There is no evidence whether the papers were emailed, hand-delivered, or handed to the members just before the meeting. 312 There is no evidence in this proceeding from any members of the Committee. I have set out the members of the Committee as at 19 October 2016 at [85]-[86] above. On any view, the CLC Committee members had a small window of opportunity to read and digest the papers, if the papers were not completed until the evening prior to the meeting. 313 Ms Wynniatt exhibited the documents provided ahead of the meeting, and the minutes of the 19 October 2016 meeting, to her affidavit. She deposes the Committee confirmed those minutes as accurate when it met in December 2016. 314 Both the agenda papers and the minutes were the subject of close attention during the hearing. 315 The agenda papers disclose the following explanatory documents dealing with the various s 19(5) resolutions. Ms Campbell's briefing paper on the proposed s 19(5) directions for five communities was set out over two pages. Her paper identified the communities, set out the relevant part of s 19(5) of the Land Rights Act, and set out a meaning of the phrase "interests in land". She then stated the following: For a decision to be made there must be satisfactory attendance by and consultation with the traditional Aboriginal landowners. With reference to the schedules attached, the CLC has consulted with the traditional Aboriginal landowners who have instructed the CLC that they consent to each grant on the key terms and conditions as shown. In the case of Yuendumu, Haasts Bluff, Amoonguna and Santa Teresa the only affected community is the community in which the grant is proposed to take place. Many of the traditional Aboriginal landowners are also members of the affected community. The CLC held each meeting in either the affected community (Yuendumu, Haasts Bluff and Santa Teresa) or within close proximity to the affected community with transport to the meeting for community members provided by the CLC (Amoonguna - Alice Springs). In the case of Lajamanu, consultations with the traditional Aboriginal landowners were conducted in Kalkarindji as this is where the majority of traditional Aboriginal landowners live. Further public notices were also sent to Lajamanu and community residents were invited to present their views to the CLC. 316 The "attached schedules" set out the lease details for each proposed lease in each community. For the Amoonguna leases (including the licence) the table specified a lease period of "40 years (12 + 28)" for each lease except the Congress lease, for which a period of 12 years was specified. A short summary of the terms and conditions of the leases was also provided. 317 Mr Gosford's paper is noted on the meeting agenda as "information only" and was six pages long. It is headed "Information paper". It sets out the history of the claims by ICL against the Northern Territory government and the MacDonnell Regional Council, the settlement of that litigation, and the payment of a sum of money ($1.4 million) into trust, to be held on behalf of the community. It then describes a series of events thereafter, including ICL's conduct in relation to charging rent for community houses, and other matters, which, it is fair to say, are set out in this document from the CLC perspective. Ms Marie Ellis made it clear in her evidence she had a different perspective on what ICL had done. 318 Mr Gosford's paper also describes the September and October community meetings. The relevant part of that description is as follows: Those traditional Aboriginal owners that could not be present [at the 12 October 2016 meeting] told CLC staff that they were aware of and agreed with the decisions made at the meeting on 21 September 2016 and agreed that the senior male traditional Aboriginal owners were the right people to make decisions about the Amoonguna ALT. As with previous meetings the leases, licences and interests for consideration included: • Leases and licences to MacDonnell Regional Council - council office, workshops, parks etc; • Leases to the Northern Territory government - school & sewer farm; • A lease to Central Australian Aboriginal Congress - health clinic; and • A lease of the whole of the Amoonguna ALT to ICL for 99 years & 2 99 year extensions New matters for consideration included: • Approval of Amoonguna township survey plans; • Approval of upgrades to the town sewer works; • Approval of upgrades to up to 50 houses at Amoonguna (and associated housing lease); • Consideration of the Amoonguna Farm issues; and • ICL charging Amoonguna residents a "poll tax" by way of rent on the houses in which ICL has no legal interest. ICL representatives at the meeting advised that (a) at least 8 senior traditional owners had resigned from ICL in recent weeks, and (b) that the ICL representatives would not vote or consider any proposal for a lease or licence then ICL's proposal. Following staff presentation on these matters and an adjournment for lunch the traditional owners asked all residents and CLC staff to leave the meeting so that senior traditional owners could consider the matters. After about 40 minutes staff were asked to return to the meeting to answer a number of questions. Senior traditional owners then advised CLC staff that they consented to the leases and licences to the MacDonnell Regional Council, to the NT government and Congress and to the application by the NT government for a development application to allow the correctly surveyed Lots in the town to be approved, so as to allow for leases longer than 12 years. They wanted the CLC to pursue further negotiations - as a matter of urgent priority - with both the Commonwealth and NT governments in relation to the long-overdue housing upgrades and maintenance issues at Amoonguna that present real safety issues for residents and their families. They also expressed grave concerns about the administration by ICL of an inequitable and poorly managed housing rental arrangement that was unlawful. Traditional owners rejected the ICL proposal but instructed CLC staff that when ICL was advised of their decision that they should also tell ICL that the traditional owners wanted to consider any future proposals that ICL may have for Amoonguna, particularly in relation to service provision. 319 The version of the minutes prepared after the meeting contained large redacted sections, which counsel informed the Court concerned matters of no relevance to this proceeding. The minutes contain the impugned direction given to the AALT under s 19(5), which was in the following form. It was a single resolution covering all five communities. Resolution No: EX2016.07.170 SUBJECT: The grant and transfer of various interests in land pursuant to section 19 of the Aboriginal Land Rights (Northern Territory) Act 1976: Lajamanu, Yuendumu, Haasts Bluff, Amoooguna and Santa Teresa communities LAND TRUST Hooker Creek Aboriginal Land Trust; Yuendumu Aboriginal Land Trust; Haasts Bluff Aboriginal Land Trust; Amoonguna Aboriginal Land Trust; Santa Teresa Aboriginal Land Trust CLC Region CLC Region 3: Lajamanu CLC Region 4: Yuendumu CLC Region 5: Haasts Bluff CLC Region 1: Amoonguna and Santa Teresa Previous Resolution: None Proposed Resolution: The Central Land Council (the CLC) being satisfied that the provisions of section 19(5) of the Aboriginal Land Rights (Northern Territory) Act have been satisfied: DIRECTS each Land Trust to grant an interest in land to the named person or entity (the Lessee or Licensee) over the areas identified in the agreement (the Premises) on the terms approved by the traditional Aboriginal landowners as shown on table 1. below; Table 1. File no. Agreement type Premises Land Trust Lessee/Licensee … … … … … Amoonguna 2015/62 Lease Lot 88 Amoonguna Aboriginal Land Trust Northern Territory Government - Department of Corporate and Information Services 2015/61 Lease Lots 95, 190 and 189 Amoonguna Aboriginal Land Trust Northern Territory Government - Indigenous Essential Services Pty Ltd 2014/542 Licence Lot 79, 182, 188 and public spaces Amoonguna Aboriginal Land Trust MacDonnell Regional Council 2014/541 Lease Lots 61, 162 and 187 Amoonguna Aboriginal Land Trust MacDonnell Regional Council 2012/507 Lease Lot 60 Amoonguna Aboriginal Land Trust Central Australian Aboriginal Congress Aboriginal Corporation … … … … …

[43]

and RESOLVES to: a) authorise the Chairman and an Executive Member to affix the CLC common seal to and sign each agreement on behalf of the CLC; b) authorise the Chairman and an Executive Member to affix the common seal of each Land Trust to and sign each agreement on behalf of each Land Trust; c) authorise the Chairman of the CLC to sign the written direction to each Land Trust; d) consent to the Lessee or Licensee transferring his or her interest or granting a sublease, licence, residential tenancy or right of access in accordance with each agreement; and, e) receive into its Land Use Trust Account any rental payments owed to each Land Trust under each agreement and to allocate these funds in accordance with the instructions of the traditional Aboriginal landowners; … MOVED: Michael Jones Region: 6 SECONDED: Jasper Haines Region: 9 MOTION PASSED Submitted and presented by: Stephanie Campbell Section: Legal Unit 320 After the record of who moved the resolution and who seconded it, the minutes then record that one CLC Committee member "left the meeting at 2.40 pm". It is plain this resolution occurred then before 2.40 pm. 321 The agenda records that the discussion and the leases in the five communities, along with other agenda items related to leasing, was scheduled for 1.30-2.45 pm. Two of the four items concerned Amoonguna: namely Ms Campbell's paper and the proposed resolutions, and Mr Gosford's Information paper. 322 Sequentially - and a matter on which the applicants place some reliance - the minutes later record that Mr Gosford's briefing paper was noted and a "brief discussion held". However, as the applicants submit, and I accept, an inference can be drawn that this occurred after the s 19(5) resolution had been made. The CLC does not contend otherwise. 323 What is unknown, because of the absence of any Committee member from this proceeding, is whether any or all of the Committee members had read Mr Gosford's Information paper before voting on the resolution I have set out above. Neither Mr Gosford nor Ms Campbell attended the meeting, and Ms Wynniatt gave no evidence about the meeting itself. Ms Rucioch also attended the meeting but gave no evidence about what occurred. 324 The CLC submits the Court should infer the Committee members read all of the papers before voting on the resolution, including Mr Gosford's paper. It submits the applicants have the burden of proving otherwise. 325 I am not prepared to draw the inference for which the CLC contends. There is no evidentiary basis to infer the Committee members (or some of them, and if so which ones) read the papers about the resolutions ahead of the meeting, let alone read "all" of them. There is no evidence, for example, whether instead the issues were simply discussed orally at the meeting. That is especially so given the finding I have made that the papers were not even complete until after 5 pm the evening before, and there is no evidence before the Court about how the Committee members received the papers. Ms Wynniatt could have given that evidence, but nobody asked her. She also took the minutes at the meeting, according to her affidavit, and could have been asked about what happened at the meeting. She was not required for cross-examination, and no evidence-in-chief was adduced on this matter. The parties each made a forensic decision about how they wished to leave the state of the evidence. They have left it in a state of uncertainty. 326 The Court cannot make a finding one way or the other about what the Committee members did, or did not do, with the papers before them. Likewise, there is an insufficient evidentiary basis to accept the applicants' submission that because the resolution occurred before the Information paper was tabled, none of the Committee members had read the Information paper, and none of them took it into account in deciding how to vote on the resolution, and therefore in forming the requisite state of satisfaction for the purposes of s 19(5) of the Land Rights Act. 327 The applicants have the burden of proving the CLC Committee did not form the requisite state of satisfaction under s 19(5). They have the burden of proving what information was or was not considered by the Committee in forming that state of satisfaction. 328 They have failed to prove on the balance of probabilities that the Committee members did not read or consider both Ms Campbell's statement and Mr Gosford's Information paper. That does not mean, as I have noted above, that I accept the CLC submissions that I can infer they did read all the papers. The state of the evidence precludes a finding one way or the other. However given the burden lies with the applicants, they have not proved the negative fact they sought to establish.

[44]

Fact finding on the seal affixing argument 329 I have set out most of the relevant facts at [162]-[164] above, and they are not in dispute. I find those matters proven. 330 Ms Rucioch is a senior administrative assistant with the CLC. Her evidence is that her usual practice is that she does not affix seals to documents until she has "all of the relevant authorities to affix the seals". She attended the 19 October 2016 CLC Committee meeting, although it was the first one she had attended. On that day, her evidence was that, "[c]ontrary to my usual practice", she affixed the seals of the AALT and CLC to the impugned leases "although at that time there was no separate authority from the members of the Trust". 331 At some time prior to 11 November 2016, Ms Rucioch prepared the authorities from the AALT which are in evidence, and which purport to authorise the affixing of the seal of the AALT to the impugned leases. These documents were signed on 11 November 2016 by three of the then newly appointed members of the AALT. The authorities are undated but Ms Rucioch's evidence establishes the date on which they were signed. However the signed authorities were addressed to the Chairman and an Executive member of the CLC. 332 Thus, three relevant facts can be found: (1) When the seals were affixed on 19 October 2016, there was no existing authority that purported to accord with s 4(5) of the Land Rights Act. (2) On 11 November 2016, when authorities expressed to be pursuant to s 4(5) of the Land Rights Act were signed by three newly appointed members of the AALT (Phillip Alice, Elaine Ross, Marcia Alice and Joseph Alice - a combination of three of these four members variously signed each of the authorities), the authorities in express terms were directed only at the Chairman and an executive member of the CLC. (3) Ms Rucioch, who affixed the seals on 19 October 2016 was not, on 19 October 2016, the Chairman of the CLC or an executive member of the CLC. Nor has she held either of those positions since 19 October 2016.

[46]

Formation of the satisfaction required by s 19(5): Grounds 1 and 2 333 The CLC made the following submission about the Court's task in relation to a provision such as s 19(5), where an applicant impugns a state of satisfaction required by a statute to be formed: In terms, s 19(5) is conditioned by an opinion (satisfaction) about the matters specified in the sub-section, not their objective existence. As such, a legal challenge will not concern the objective existence of the subject matters. The resolution set out in the leasing paper and minutes, and the direction scheduled to the written agreements, records the state of satisfaction required by s 19(5) that conditions the giving of a direction under sub-ss 19(3) and (4A). A challenge must proceed on the basis that the Act requires the opinion (satisfaction) to be properly formed; satisfaction will not be achieved if the repository of the power misdirected itself in law, failed to consider matters required to be considered or took irrelevant and forbidden matters into account, or reached an opinion that was not reasonably open, or otherwise committed vitiating error, for example, by acting in a manner that is procedurally unfair. (Footnotes omitted.) 334 That may be accepted as an accurate summary of the correct approach to Grounds 1 and 2 of the application, both of which challenge the formation by the CLC Committee of the requisite state of satisfaction for the purposes of s 19(5) of the Land Rights Act. It should also be accepted, as a starting proposition, that a Land Council can be provided with a summary of information, prepared by its officers and employees, which it can use for the purposes of forming its satisfaction. There are limits and qualifications to that principle: see generally Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 347 ALR 173 at [61]. The applicants did not dispute this as a general proposition and some of their specific arguments reflected the qualifications set out by the Full Court in Carrascalao. 335 To reiterate the key points which emerge from the legislative scheme established by this part of the Land Rights Act. The land in question is Aboriginal land. It belongs, and is recognised as having always belonged under traditional law and custom, to those people who are, as a group, identified as, and established to be, the traditional owners of that land. Those people hold title to the land communally, through the statutory vehicle of a Land Trust which is the entity identified by the scheme as the "owner" and therefore the entity that, in law, deals with the land. However, the Land Trust does so avowedly in exercise of obligations to the Aboriginal people for whose benefit the land is to be held. Whether the Land Rights Act creates what equity will recognise as a trustee and beneficiary relationship, and whether the Land Trust's obligations are properly described as fiduciary would appear to remain unsettled. In Wurridjal, Gummow and Hayne JJ said at [128]: It is unnecessary for present purposes to determine whether the use in s 4(1) of the phrase "for the benefit of" indicates a legislative intention to create trusts in the strict sense or to create a lesser form of statutory regime with some characteristics of a trust. (Footnote omitted.) 336 See also Rirratjingu Aboriginal Corporation v Northern Land Council [2015] FCA 36 at [89] (Mansfield J), extracted at [467] below. 337 The recognition that the title is communal, or collective, inheres in the approach taken by the Land Rights Act to dealings with the land: consent or agreement is given by "the group", not by individuals. Moreover, it is given "as" a group. This language does not imply unanimity, but it does imply a sufficient level of endorsement, or (to return to Mr Connelly's evidence) a preparedness to abide a decision of others, even if there is some disagreement. Section 77A of the Land Rights Act may operate on the way in which traditional owners, as a group, are able to reach agreement, or are to express their agreement for the purposes of the Land Council's consideration under, amongst other provisions, s 19(5). By s 77A, the Land Rights Act does not require a decision-making process in accordance with traditional law and custom (unless, at least on one construction, the decision to be made has a particular character), although such a process is one of the two expressly contemplated methods. 338 The terms of s 19(5), read in the context of the scheme of the Act and the reality of Aboriginal land being held (and used, and dealt with) for the benefit of those Aboriginal people who are the traditional owners of it, and their communities, and read with s 77A, make it clear that a process of decision-making must be adopted, and must be followed. Thereafter, the CLC must be satisfied that, as a group, and as a result of that process, there is traditional owner consent to the proposed dealing. Consent means a positive state of agreement. 339 Despite the considerable amount of evidence in this proceeding, as I have noted, there was no specific evidence about which process under s 77A applied, and had been applied. 340 Ms Wilmot and Mr Gosford seemed to have assumed it was a process under s 77A(a), but there is no evidence as to why a decision of this kind was required to be decided in accordance with traditional law and custom. This is an express requirement for s 77A(a) to apply. 341 Nor was there any specific evidence from traditional owners about the process they considered they had adopted and whether it fitted within s 77A(a) or (b). Again references to seniority and who had authority to decide, as well as Ms Ellis' evidence to which I have referred at [247]-[248] above, might suggest the traditional owners also assumed the process was the one described in s 77A(a), but why it needed to be so was not explained in the evidence. 342 On balance, I am prepared to infer that it was the case that traditional Arrernte law and custom required decisions about the impugned leases to be made in accordance with that law and custom. A principal reason for my preparedness to draw this inference is the weight Ms Ellis placed in her own evidence on the decision-making structure within Arrernte law. In other words, it was her assumption also that this structure would apply to decisions about the impugned leases, even if she had a different perspective on what traditional law and custom required. The same is true, to a lesser extent, of Mr Phillip Alice's evidence. 343 Therefore, the CLC Committee was required to be satisfied that a decision-making process in accordance with traditional Arrernte law and custom had occurred, and had resulted in the consent of Amoonguna traditional owners, as a group. There is, however, a role for s 77A in the formation of this state of satisfaction. On one view at least, the effect of s 77A on s 19(5) is that the CLC needs to be satisfied the decision was taken in accordance with Aboriginal tradition. If so satisfied, s 77A(a) deems consent as a group to have been given. That is a further difficulty for the applicants' case. 344 The applicants relied on the description given by Bromberg J in MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478. That was a case about a visa criterion concerning whether the Minister (or his delegate) was satisfied there were compelling reasons for not requiring other criteria to be met. In that context, Bromberg J emphasised (at [19]) the need for there to be consideration by the delegate that involved an "active intellectual process" so that the circumstances before the delegate received the decision-maker's "genuine consideration". At [20], Bromberg J said: In Tickner, Burchett J stated at 476 that to "consider" required the decision-maker to apply "his own mind to the issues raised". The decision-maker may be assisted by others to collect the relevant facts but it is the decision-maker's task to "evaluate" them. Whilst an administrative decision-maker must exercise his or her own judgment, not every step in the decision-making process must be personally done by him or her. Reliance may be placed on facts found by others (such as advisers to a Minister), provided that the decision-maker acts on the basis of an accurate summary of the relevant evidence and submissions upon which the facts have been found: Asiamet (No 1) Resources Pty Ltd v Commissioner of Taxation (2003) 126 FCR 304 at [116] (Emmett J) approved on appeal Commissioner of Taxation (Cth) v Asiamet (No 1) Resources Pty Ltd (2004) 137 FCR 146 at [217]-[218] (Allsop J, with whom Ryan and Finkelstein JJ agreed). 345 I respectfully agree with that passage from his Honour's judgment in MZYPZ, at the level of general principle. The two critical factors are that the decision-maker exercise her or his own judgment in forming a state of satisfaction and, second, that information relied on by a decision-maker is in all material aspects accurate, so that the decision-maker is not misled if she or he relies on others (as she or he may) to inform her or him of factual matters. 346 There is force in the applicants' submissions that it would pervert the purpose and requirements of s 19(5) and the concept of traditional owner consent if interests in Aboriginal land were being divested, or dealt with, on the say-so of persons such as Ms Wilmot and Mr Gosford, who have no functions under the Land Rights Act, other than to provide information to decision-makers such as the CLC Committee. For Mr Gosford to be telling Mr Midena, a day before the CLC meeting that the CLC "is satisfied" about something, is wrong in law and wrong in fact. For Mr Gosford to be telling the Northern Territory that the leases had been granted and all that needed to occur was ratification by the CLC Committee was also wrong in law, and wrong in fact. The slippages in language and message by Mr Gosford should not have occurred. However I do not consider they have the sinister complexion the applicants suggest. Those slippages are likely to have reflected Mr Gosford's experience about how the CLC Committee, when informed of a decision by traditional owners, would generally act in accordance with the traditional owner group decision. In my opinion, what Mr Gosford described as already having happened is what he genuinely expected was going to happen: indeed, what his experience taught him would occur. 347 It can be seen that although the applicants' submissions have force in the abstract, I do not accept they have proven this is what occurred on 12 October 2016, flowing through to 19 October 2016. The interests created by the direction to grant the leases did not occur on the "say-so" of Mr Gosford or Ms Wilmot. They occurred because, I infer, the CLC Committee accepted what it had been told about the agreement of the Amoonguna traditional owners, as a group, on the basis that the decision was made under Arrernte law. How much inquiry and discussion occurred, or how much thought occurred, amongst the CLC Committee, is unknown. The applicants did not contend the Committee was unable to use its knowledge and expertise to determine the issues before it: see Myoung at [58] (Mansfield J), referring to Repatriation Commission v Strickland (1990) 12 AAR 343 and Szelagowicz v Stocker (1994) 54 IR 302 at 306. 348 The applicants have not proven the decisions were taken without genuine thought or consideration. To adopt the language of Bromberg J, they have not proven there was an absence of active intellectual consideration by the CLC Committee, or a failure by the CLC Committee members to apply their own minds to whether the Amoonguna traditional owners, as a group, consented to the impugned leases. The applicants could have asked, but did not, for reasons for the CLC Committee's decision to give a direction to the AALT. They could have called members of the CLC Committee to give evidence and explain why they reached their decision. They did not. There is simply no evidentiary basis on which the Court can infer there was no thought, no analysis, no consideration or no discussion by the CLC Committee members. 349 It is to be recalled that each of the CLC Committee members is indigenous, and representative of CLC regions, including a region covering Amoonguna. These people are answerable to their communities and constituencies. They can be taken to understand how traditional decision-making processes work, and how group decision-making processes amongst Aboriginal people are generally conducted and concluded. It can be inferred they will all have experienced such processes in their own communities. They can be taken to understand hierarchies and seniorities within traditional Aboriginal law and custom. They may be likely to know personally some, or many, of the individuals involved in traditional decision-making processes. They may have some familiarity with the traditional law and custom that governs the decision-making they are assessing. Indeed they may be related or connected to some of the traditional owners who made the decision. That is part of why the Land Rights Act insists, in its scheme, that Aboriginal people constitute the CLC. 350 Ground 1 of the application must therefore fail. I am also satisfied that had appropriately closer attention been paid by the parties to the terms of s 77A, it would have been clear that the applicants' grounds needed to be differently formulated, to take account of the deeming effect of s 77A. 351 That leaves the second part (Ground 2) of the applicants' argument about how the satisfaction of the CLC Committee miscarried: namely that it had inaccurate information before it, which it can be taken to have relied upon. The information was said to be inaccurate because it was incomplete. It is contended the CLC Committee was not informed about the opposition to the grant of the leases by Ms Marie Ellis and those who supported her position. Nor did it record her objections to what occurred at the 12 October 2016 meeting or her insistence about who needed to be present, such as Mr Oliver. Nor was the Committee told about precisely which of the traditional Aboriginal owners attended the meeting and which did not. It also appears to be suggested that the information was inaccurate because Ms Ross and Mr Oliver did not, in fact, agree to the grant of the leases. 352 I note that information at this level of detail was not supplied for any of the five communities which were the subject of consideration at the 19 October 2016 meeting by the CLC Committee. 353 Two documents must be considered in resolving these contentions. The first is the Agenda Item paper prepared by Ms Campbell. 354 This paper sets out the Committee's task under s 19(5), and then summarises Ms Campbell's description of what the Committee must be satisfied of - "satisfactory attendance by and consultation with the traditional Aboriginal landowners". Ms Campbell then informs the Committee that this occurred for each affected community and the traditional Aboriginal owners "have instructed the CLC that they consent to each grant…". There was then a table with the key details of each lease proposed for each community, and advice from Ms Campbell that the terms of each lease were reasonable, and a brief explanation as to why. The terms of a resolution for each set of leases for each community were then attached. 355 Ms Campbell's paper covers the leases in all five communities, and does so in common form, but with particular references to some details for particular communities. However it is silent, for example, on the actual course of each meeting for each community where traditional owner consent is said by the CLC to have been given. In Ms Campbell's paper, Amoonguna is not treated any differently to the other four communities in this respect, in terms of the information placed before the CLC Committee. 356 On the text of Ms Campbell's paper, it may be possible to accept the information given to the Committee was incomplete. There was no mention of opposition within the traditional owner group. There was no reference to the absence of Mr Oliver, Ms Ross (or Mr Neal or Mr Williams). Rather, there is the communication to the CLC Committee of the "instruction" of each traditional owner group that they consent. If that was all the Committee had, and there was no discussion, then it might be doubted the Committee had enough information to form the requisite state of satisfaction under s 19(5). Again, however, the evidence would still remain in an uncertain and unclear state about whether this was all the information before the Committee. There is no evidence whether there was any discussion, any questions, any comments about opposing views. The minutes record none, but minute-takers apply different levels of detail. The minutes do record a "brief discussion" after Mr Gosford's paper was tabled. It is not possible for the Court to find as a positive fact that the Committee acted only on the text of Ms Campbell's report. 357 Further, the Amoonguna situation was also treated differently in a key respect, and this strengthens my conclusion that the applicants have not proven there was a failure to form a lawful state of satisfaction. Mr Gosford's "Information paper" was provided to the Committee. No such paper was provided to the CLC Committee for any other community. As I have found above, it is not possible to accept the applicants' submissions, at a factual level, that the timing of the presentation of that paper on the agenda necessarily means the Committee members had not read it and did not take it into account in forming their state of satisfaction about whether the Amoonguna traditional owners, as a group, consented to the leases. 358 The purpose of Mr Gosford's paper was to inform the CLC Committee members about what had been happening in relation to leases over Aboriginal land in and around the Amoonguna township. The paper traced events back to 2008 and the litigation brought by ICL (I take this to mean the ICL's predecessor, ACI, since the ICL was established in 2012) against the Northern Territory and the Council, concerning the amalgamation of what was then a local Amoonguna community council into a larger shire council. Mr Gosford's paper then sets out the positon adopted by ICL about why it should be the entity granted a lease of land in Amoonguna township, and the meetings which have occurred. It is fair to say the paper does not present ICL in a positive light, and that reflects, no doubt, Mr Gosford's view of these events and perhaps also the view of the CLC. The paper describes the 12 September 2016 meeting and the 12 October 2016 meeting, including descriptions of what occurred after the 19 October 2016 meeting, and should be set out in full: In mid-September 2016 senior traditional owners for Amoonguna requested that CLC staff arrange for a meeting of that group. That meeting was held on 21 September in Alice Springs. At the meeting those senior traditional owners asked the CLC to provide information about the leasing proposals for Amoonguna. Following consideration of that information - while CLC staff were outside of the meeting room - traditional owners told CLC staff that they: • wanted to enter into negotiations for leases with the NTG, the MRC and CAAC; • wanted more information from ICL in relation to their proposal but that at this time they were not inclined to accept the proposal in its present form - considering that it was for too little money, too long a period and they did not have sufficient confidence in the administration of ICL at present. They also noted concerns that the proposal was inconsistent with the Aboriginal Land Rights (Northern Territory) Act, particularly in relation to the reasonableness of the proposal. Notwithstanding these concerns they still requested that ICL be provided the opportunity to present to the traditional aboriginal owners in relation to the proposal; • in relation to the Amoonguna farm blocks it was agreed that the CLC approach the occupiers of that land and advise them that they should enter into leases for a period of 5 years in order that land use, occupation and future development be more appropriately regulated. A further meeting be arranged to consider this issue. Traditional aboriginal owners present noted the request by CLC staff that a further meeting of all relevant traditional aboriginal owners and affected persons be conducted in the near future preferably at a "neutral" place. On 12 October the CLC arranged for a meeting of traditional Aboriginal owners, residents and affected persons and communities at the Chifley Resort in Alice Springs in order that they consent to or otherwise consider the lease, licence and other proposals in relation to the Amoonguna ALT. At least 35 people attended that meeting, including senior traditional owners. Those traditional Aboriginal owners that could not be present told CLC staff that they were aware of and agreed with the decisions made at the meeting on 21 September 2016 and agreed that the senior male traditional Aboriginal owners were the right people to make decisions about the Amoonguna ALT. As with previous meetings the leases, licences and interests for consideration included: • Leases and licences to MacDonnell Regional Council -- council office, workshop, parks etc; • Leases to the Northern Territory government -- school & sewer farm; • A lease to Central Australian Aboriginal Congress -- health clinic; and • A lease of the whole of the Amoonguna ALT to ICL for 99 years & 2 99 year extensions New matters for consideration included: • Approval of Amoonguna township survey plans; • Approval of upgrades to the town sewer works; • Approval of upgrades to up to 50 houses at Amoonguna ( and associated housing lease); • Consideration of the Amoonguna Farm issues; and • ICL charging Amoonguna residents a "poll tax" by way of rent on the houses in which ICL has no legal interest. ICL representatives at the meeting advised that (a) at least 8 senior traditional owners had resigned from ICL in recent weeks, and (b) that the ICL representatives would not vote or consider any proposal for a lease or licence other than ICL's proposal. Following staff presentation on these matters and an adjournment for lunch the traditional owners asked all residents and CLC staff to leave the meeting so that senior traditional owners could consider the matters. After about 40 minutes staff were asked to return to the meeting to answer a number of questions. Senior traditional owners then advised CLC staff that they consented to the leases and licences to the MacDonnell Regional Council, to the NT government and Congress and to the application by the NT government for a development application to allow the correctly surveyed Lots In the town to be approved, so as to allow for leases longer than 12 years. They wanted the CLC to pursue further negotiations -- as a matter of urgent priority -- with both the Commonwealth and NT governments in relation to the long-overdue housing upgrades and maintenance issues at Amoonguna that present real safety issues for residents and their families. They also expressed grave concerns about the administration by ICL of an inequitable and poorly managed housing rental arrangement that was unlawful. Traditional owners rejected the ICL proposal but instructed CLC staff that when ICL was advised of their decision that they should also tell ICL that the traditional owners wanted to consider any future proposals that ICL may have for Amoonguna, particularly in relation to service provision. On Friday 14th CLC staff advised ICL (through their lawyer, Mr Brett Midena - see letter below) that ICL's proposal had been rejected by traditional owners. Later that day Mr Midena wrote to the CLC advising that the decisions made by traditional owners in relation to the leases were "invalid and of no effect." He advised further that if the CLC grants the leases or licences as instructed to by traditional owners that, unless advised by COB yesterday that it would not proceed, ICL will make application to the Court preventing the CLC from deciding on these matters. The CLC wrote to Mr Midena late yesterday afternoon declining his request to withdraw the leases and licences from the Executive Council's agenda. 359 While the focus of Mr Gosford's paper is the position of ICL, the CLC Committee members are told about the opposition by members of ICL to the impugned lease proposal. I am satisfied it would have been clear to the CLC Committee members that the ICL members were traditional owners: Mr Gosford's paper makes that clear, although I am satisfied it is likely to have been a notorious fact to CLC Committee members, given the nature of the membership of the CLC Committee. 360 The Gosford paper also focuses on the position of senior traditional owners, and the fact that they consented. It refers to the position conveyed on behalf of those traditional owners who could not be present. I return below to the applicants' challenge to the accuracy of Mr Gosford's paper in this respect. 361 I accept, as Kenny J noted in Gondarra at [72], that s 19(5) posits different states of satisfaction for a Land Council as between traditional owners and an Aboriginal community affected by the grants, and that difference suggests the Land Rights Act contemplates traditional owners "need to be better informed" about proposals. Aside from one particular argument reflecting Ground 2 of the application, the level of information provided to traditional owners is not a basis for challenge. 362 Although Gondarra concerned a challenge to the formation of the Minster's state of satisfaction under s 27(4) of the Land Rights Act, it is apparent from Kenny J's reasons, in particular at [110], that the information provided to the Minister was not of a significantly different character to that provided to the CLC Committee. In relation to traditional owner consent and support for the proposals impugned in that case, the information provided in Gondarra was conclusionary, as it was in Ms Campbell's paper. There was no equivalent of Mr Gosford's paper in Gondarra. 363 Contrary to the applicants' contention, that does not mean that there has been some impermissible division of statutory tasks into a "hearing function" and a "decision-making function". The decision-maker (here, the CLC Committee) retains the whole of the task of forming a state of satisfaction. The area of controversy is all about the nature and quality of the information that must be provided to it. 364 I am not prepared to find the information provided to the CLC Committee was so deficient as to cause its formation of satisfaction to miscarry, or to be formed otherwise than in accordance with law. Unless put on notice by particular facts or circumstances, in my opinion a decision-maker in the position of the members of the CLC Committee is entitled to rely upon officers and employees of the CLC to provide information about traditional owner consent, including providing their own report. What Mr Gosford and Ms Campbell reported could be characterised in different ways. The applicants, consistently with their contentions, sought to characterise it as the opinions or assertions of Mr Gosford and Ms Campbell. I consider the better characterisation is that each reported what they were told, and what they observed. 365 The evidence is that Mr Phillip Alice informed Mr Gosford, once the CLC officers came back into the room, that the group consented. As Ms Wilmot stated, experience showed the CLC officers that if what Mr Alice had said did not reflect the view of the group, people would have said so. Mr Gosford's report uses the plural: "Senior traditional owners then advised CLC staff" (emphasis added). The evidence is that Mr Alice spoke, and purported to speak on behalf of the group. I am satisfied that is how Mr Gosford was reporting to the CLC - by using the plural he intended to convey that Mr Alice spoke for the group. Mr Gosford's paper specifically reports that those traditional owners who were absent "agreed that the senior male traditional Aboriginal owners were the right people to make decisions about the Amoonguna ALT". As I have noted above the applicants have not discharged their burden of proving this was untrue. 366 On the applicants' submissions, one alternative would be either that the CLC Committee members would need to attend all meetings of all communities where these decisions are taken, or have transcripts or recordings provided to them. Another alternative is that CLC officers, such as Ms Wilmot, should be required to provide a detailed report to the Committee about who were the traditional owners in each community at the time consent was given, what the various levels of seniority in accordance with traditional law and custom were, what the decision-making process was, who was present and who was not, who gave proxies or had otherwise indicated a position, and then have the CLC Committee make up its own mind by a process of fact finding whether there was consent as a group by traditional owners. 367 In my opinion to require such a detailed and prescriptive process such as this (because the applicants' arguments would apply just as equally to the other four communities the CLC Committee dealt with) could undermine the process of traditional owner consent established by the Land Rights Act. The Land Rights Act attempts, now more expressly through s 77A, to give decision-making autonomy to communities who are the owners of Aboriginal land, and to allow that autonomy to be exercised either in accordance with traditional law and custom, or not, as the case may be. It is for the traditional owners, as a group, both to formulate their decision-making processes, and then to implement them to reach a conclusion. It is not for someone outside the traditional owner group, such as a CLC officer, or a CLC Committee member, to say that a particular individual "must" be present, or "must" agree for there to be consent as a group. Nor is it for anyone else to say that because a particular individual has expressed opposition or disagreement, there cannot be consent as a group from those traditional owners. These are intramural matters within the group. 368 While Land Council employees or officers, such as Ms Wilmot and Mr Gosford, may have their own views, borne of experience with particular communities, about who needs to have agreed, or at least not disagreed, and what proportion of the traditional owner group needs to indicate agreement for the consent to be seen to be consent "as a group", those opinions cannot be definitive and, at best, are simply part of the information base for the CLC Committee. The core information is what process was adopted for the purposes of s 77A, and in accordance with the choice made, what was said on behalf of the traditional owner group itself. The principal function of such officers is a reporting one: to report, accurately, to the CLC or its delegate committee what the traditional owners, as a group, decided. 369 Knowledge by CLC Committee members of the individuals speaking for a particular traditional owner group, and knowledge of the membership and dynamics of that group, are likely to play a part in the Committee's consideration and conclusions. The structure of the Act reveals a clear intention that indigenous people are to make decisions on behalf of (other) indigenous people. That structure assumes some level of knowledge and familiarity with Aboriginal communities and decision-making processes that is not as accessible to non-indigenous people. None of these matters were explored in the evidence in this proceeding, which is, again, why I have concluded the applicants have not discharged their burden of proof. 370 In oral argument, the applicants' counsel submitted that there was a contrast between the approach taken in October 2016 and what occurred in early 2015. I recounted those events at [137] above. The applicants submit that in early 2015, where it was clear there was uncertainty, or lack of consensus, about whether there should be leases to ICL, a decision was put off. The applicants submit that in October 2016 there was also uncertainty, or lack of consensus, and if the CLC Committee had been told about that state of affairs, they may also have decided there was no consent by traditional owners as a group, and decided to postpone the making of a direction under s 19(5), or have decided to refuse to give those directions. 371 There are at least two difficulties with this argument. The first is that it is speculative, in circumstances where there are no reasons and no evidence from the CLC Committee members for the course taken in October 2016. The second is that, it is unclear on the evidence, how the "decision" (if there was one) to postpone matters in early 2015 came about, and who made it. In any event, it was open to the CLC Committee in October 2016 to take a different course from the one taken (apparently by CLC officers rather than the CLC or its Committee) in early 2015. 372 It should be apparent from what I have said above that my conclusion should not be taken to suggest (subject to the operation of s 19(6)) that the formation of the requisite state of satisfaction under s 19(5) by a Land Council (or its delegates) cannot be successfully challenged on a judicial review application. It may be established by admissible evidence that there was "rubber stamping". It may be established by admissible evidence that the CLC Committee members had no knowledge at all of the traditional owner group, or its decision-making processes for the purpose of s 77A and so could not have formed the requisite state of satisfaction, because no regard was paid to s 77A. It may be established that the information which was provided to the Land Council or its delegate committee was wrong or untrue in a material particular, and the Land Council or delegate committee relied on that wrong information. It may be proven there was no evidence for an assertion of traditional owner consent as a group, so that again, the requisite foundation for the formation of a lawful state of satisfaction could not be said to exist. It may be shown that there was undue or improper influence on the Council or Committee members. Bias of the Council or Committee members may be proven. 373 In the present proceeding, the applicants have not proven that the information provided to the CLC Committee was wrong or untrue in any material particular. They have not proven that the CLC Committee members were unaware of dissent and disagreement with the traditional owner community at Amoonguna. It is not the case that there was no evidence for the matters set out in the agenda papers. Rather, the details about who attended the 12 October 2016 meeting, who did not, the identities of the senior and less senior traditional owners and what their individual views were, were absent from the briefing papers. In the circumstance of a committee such as this constituted by local Aboriginal people, including representatives for the region of Amoonguna, and in the absence of evidence or reasons from those Committee members, the applicants have not proven that what was in Mr Gosford's paper, and Ms Campbell's paper, was all the available information. They have not proven there was no discussion. The Committee's reasons for forming the state of satisfaction about traditional owner consent as a group remain unknown. I do not consider that the formation of a lawful state of satisfaction under s 19(5) necessarily requires written information at the level of detail suggested by the applicants. I do not consider in the present circumstances that the Committee was unable to be lawfully satisfied of traditional owner consent, as a group, unless it was expressly told in writing that Ms Ellis and those who supported her position did not agree, that Mr Oliver was absent, and that Ms Ross was absent. In fact, the Court does not know, one way or the other, whether some of these facts might indeed have been known to one or more CLC Committee members. That is an illustration of the failure to discharge the burden of proof. Finally, as I have noted above, the applicants have not proven on the balance of probabilities that what Mr Gosford and Mr Alice said (and were told) about the position of Mr Oliver and Ms Ross, on 12 October 2016, was wrong or untrue, if this formed part of the basis of the reports conveyed by Ms Campbell and Mr Gosford to the CLC Committee.

[47]

Procedural fairness: Grounds 3 and 4 374 It will be recalled that the CLC submits the first and second applicants, as traditional owners, had no rights or interests affected by the grant of the leases such as to give rise to an obligation of procedural fairness in the CLC Committee in making a decision under s 19(5). The CLC submits that in a practical sense there was no alteration to, or diminution in, the interests held by individual traditional owners in the Aboriginal land the subject of the impugned leases: the land simply continued to be used in the way it was currently being used. This argument does tend to overlook entirely the point of the impugned leases, which was to give security of tenure going forward to the lessees, for considerable periods of time. The purpose and effect of the grant of the leases was to entrench the informal tenure, which had previously existed and, in relation to the Northern Territory (assuming for the sake of this ground the thrust of the Northern Territory submissions about s 14 of the Land Rights Act) to secure a contractual form of tenure under different conditions to the statutory tenure it asserts. It is not possible to discount this entrenchment as having no effect on the interests of traditional owners in their land. 375 There may be circumstances in which the CLC or its delegate could be obliged to give traditional owners an opportunity to be heard before performing its function under s 19(4A). For example, where there is no doubt that traditional owners as a group have consented to the grant of an interest in land and the CLC or its delegate decides, as an exercise of discretionary power, not to grant the interest. It may in those circumstances be required to afford the traditional owners an opportunity to be heard before deciding not to grant an interest the traditional owners clearly wish to be granted. Other examples might be imagined, but they are far removed from the present circumstances. It is not necessary to determine the respondents' threshold contentions about procedural fairness, because I do not accept the applicants' submission that, even if a duty of procedural fairness was owed in the circumstances, there was any breach of that duty.

[48]

Ground 3 376 I have not accepted the applicants' characterisation of the role of Mr Gosford at the 12 October 2016 meeting as being tasked to conduct a "hearing" on behalf of the CLC Committee. The applicants' procedural fairness arguments hinged on this characterisation. Rather, what occurred on 12 October 2016 was a meeting convened as part of the process envisaged by s 77A of the Land Rights Act. It is a process designed to give autonomy to traditional owners in their decision-making. It (and the earlier information session in September 2016) was the mechanism by which two objectives were to be achieved: to ensure the traditional owners "understand the nature and purpose of the proposed grant", and to arrange for the traditional owners, as a group, to give or withhold consent. It was not an opportunity to be heard as part of a wider decision-making process. The meeting did not occur in the course of any exercise of power, because the occasion for the exercise of power had not arisen. The meeting was the attainment (one way or the other: that is, consent or no consent) of a precondition to any exercise of power by the CLC. 377 That being the case, there was no occasion, as part of an opportunity to be heard, to convey back to the CLC Committee "all of the material information" about those who dissented (and why they dissented), nor about those senior people who were absent. 378 The situation in Jeffs v New Zealand Dairy Production Marketing Board [1967] 1 AC 551; [1967] NZLR 1057, upon which the applicants relied, was quite different. This 1966 Privy Council decision, on appeal from New Zealand, concerned a zoning decision of the New Zealand Dairy Board, which affected the geographical areas from which dairy factories could secure supplies of milk and cream. The Board established a "zoning committee" to investigate a particular zoning issue and report back to the Board. That committee decided to hold a public hearing about the zoning issue. It was a hearing at which evidence was given over two days. At the hearing, Mr Jeffs challenged the ability of the Board to create a committee as it had, and also challenged the lawfulness of the Board making a decision, because it had pecuniary interest in the outcome. He also contended there should be no zoning at all, but the committee recommended to the Board a particular zoning arrangement. The Board received the report on the day of its meeting, and the report did not contain even a summary of the evidence given at the two day public hearing attended by Mr Jeffs. The Privy Council held that there had been a failure on the Board's part - as the decision-maker - to "hear" the evidence and submissions of those affected by the zoning decision. The Privy Council did not consider it impermissible to delegate a hearing function to another (as effectively the Board had done here to its committee), and stressed that if the Board had been "fully informed of the evidence given and the submissions made and had considered them", there would have been no difficulty with the delegation of the hearing function. 379 It is apparent that the applicants, in their contention about the "delegation" by the CLC Committee of a hearing function to Mr Gosford and Ms Wilmot, seek to draw a parallel with Jeffs. 380 The function of the CLC, or its delegate, is not to "hear" from persons affected and then factor what it hears into a decision. Its function is to be satisfied, one way or the other, whether the traditional owners have consented, as a group. That is, it is to be satisfied as a matter of fact about a precondition to its discretionary power (relevantly in ss 19(3) and 19(4A)) to issue a direction to a Land Trust to grant an interest in the Aboriginal land which has been the subject of traditional owner consent. There are no express restrictions, save for the terms of s 77A, on the material it might consider in forming that state of satisfaction, provided the material is relevant and probative. 381 That is not to suggest there will never be any obligation of procedural fairness, or that circumstances might not arise where a Land Council needs to apprise traditional owners of matters or information as part of the process of considering whether to give a direction, once the precondition is met. However, those kinds of circumstances form no part of the applicants' case here.

[49]

Ground 4 382 It is agreed that the leases themselves were not provided to attendees at the 12 October 2016 meeting, and it is also agreed that they had not been provided at any earlier stage. 383 Ground 4 is based on the failure to provide these documents. 384 The applicants placed considerable weight on Kenny J's obiter comments in Gondarra, where, as part of rejecting Mr Gondarra's procedural fairness argument in relation to the Minister's discretion (which is not expressly constrained in the way that s 19 is), Kenny J said: 91 Had the NLC recognised Dr Gondarra's claim for his group's traditional ownership, then he, as the group's representative, would have been entitled to have the terms of the Lease and the Agreement explained to him. This much was recognised by Muirhead J in Alderson v NLC at 361. As an authorised representative and traditional owner, he would also, so it seems to me, have been entitled to a copy of the Lease and Agreement had he sought it. Alderson v NLC was not, however, concerned with the position of Aboriginal groups that the NLC did not recognise as the traditional owners. I consider that, for this reason, Dr Gondarra's reliance on Alderson v NLC is misplaced. Alderson v NLC is to be distinguished because it concerned the position of the traditional Aboriginal owners, rather than, as in this case, the position of Aboriginal communities or groups not recognised by the relevant Land Council as the traditional owners. 92 The distinction between the position of Aboriginal people recognised, by in this case, the NLC, as traditional Aboriginal owners and the position of Aboriginal communities or group that are recognised as communities or groups that interested in the land (and who may be affected by the proposed action) is one drawn in s 23(3) itself. As already noted, much the same distinction is drawn in s 19(5) of the Land Rights Act. Whilst s 23(3)(a) requires the Land Council to be satisfied that the traditional owners understand the nature and purpose of the proposed action (here, entry into the proposed agreement involving the renewal of the lease) and to consent to it (as a group), s 23(3)(b) required only that the Land Council be satisfied that any other Aboriginal community or group that may be affected (not being the traditional owners) had been consulted and given an adequate opportunity to express its view. That is, as noted already, the different forms of requisite satisfaction reflect the different relationships to the land in question. Section 23(3)(a) contemplated that, particularly since their consent was necessary, the traditional Aboriginal owners were to be better informed about the proposal than those Aboriginal communities or groups who may simply be affected by it. (Emphasis in original.) 385 If it is accepted, without deciding, that a request by an individual traditional owner might, as Kenny J suggests, trigger an obligation to provide a document such as a lease if that is the proposal on which the traditional owners as a group are being asked to consent, and it is further accepted, without deciding, that a failure to provide the documentation requested could constitute a denial of procedural fairness, then a factual question arises whether in the current circumstances the evidence establishes the applicants asked to see the impugned leases. 386 The applicants submit the request was made on behalf of Ms Marie Ellis through Mr Midena. The evidence shows that, by correspondence to the CLC, Mr Midena made the following requests: (1) "In the meantime, could you please provide us with details of the proposals which have been received by the CLC for the occupation or use of any part of Amoonguna by the Northern Territory, the MacDonnell Shire Council or any other person?" (3 September 2012) (2) "Please provide us with such information as is available to the CLC about the grants being sought by the NT Government." (28 April 2014) (3) "For the purposes of properly implementing their arrangements for the governance, management and development of Amoonguna, my clients again request that the CLC provide the Amoonguna Community with: (a) copies of all applications and requests it has received in the last 10 years from any persons, including governments and government authorities, wishing to enter, use or occupy land at Amoonguna; and (b) details of all monies received by the CLC in the last 10 years arising from the entry, use or occupation of Amoonguna by any person, including governments." (15 June 2016) 387 None of these are requests for the impugned leases. All are on their face much broader than that. Further, in the context of every letter written by Mr Midena, he seeks information not only on behalf of his traditional owner clients (whom he does not identify in each letter), but also on behalf of ICL. The thrust of much of this correspondence is that the CLC should be dealing with ICL, as should any outside entities such as the Northern Territory government and the Council. Indeed, Mr Midena's letter of 15 June 2016 is a good example, because it asserts that dealing should only be with the "incorporated" entity representing traditional owners. Many submissions were made by both the CLC and the Northern Territory during the proceeding about the misconception that underlies the proposition that traditional owners might form a corporation with whom the CLC would then be obliged, by the Land Rights Act, to deal with instead of dealing with individuals constituting the traditional owner group. There is some force in the respondents' submissions concerning that misconception, at least on the current structure of the Land Rights Act, but the matter need not be decided. 388 What is important for the resolution of Ground 4 is to note how consistently that approach was pressed by Mr Midena, because it tends against the procedural fairness argument now made. As a matter of fact, there is no evidence that prior to the 12 October 2016 meeting Ms Marie Ellis, or her sister the second applicant, whether through Mr Midena or on their own behalf, asked to see copies of the impugned leases. And there is no evidence any request to see documents which may have been understood to include the impugned leases was made for the purpose of understanding the terms of the leases, so as to decide whether to consent to them or not. 389 However, at the 12 October 2016 meeting, the following is recorded in the transcript which was tendered by consent: MEE - (Asks for a copy of the documents from the NT Government confirming its proposed leases and rentals and terms.) BG - I don't have a copy of it on me. I will forward a copy to you…. If there are no further questions, I will move on to the MacDonnell Regional Council….provides all services… 390 "MEE" is Ms Marie Ellis, and "BG" is Mr Gosford. 391 On the basis that the respondents have accepted the accuracy of the transcript, it would appear Ms Ellis did, in fact, ask to see copies of the Northern Territory leases at the meeting. Her affidavit evidence did not refer to such a request: At the Chifley Hotel meeting, no copies of any draft or proposed leases or licences were provided or otherwise made available for consideration by the traditional Aboriginal owners or otherwise displayed by the CLC or anyone else. I confirm paragraph 16 of my affidavit made on 18 January 2017 that, on or about 10 January 2017, Brett Midena provided me with copies of leases and a licence that he informed me were provided to him by the CLC on 23 December 2016. This was the first time I have been provided with a copy of such documents, in draft or any other form. No copies of such documents, in draft or otherwise, were provided or made available at the Chifley Meeting by the CLC or by anyone else. 392 Even accepting such a request was in fact made, I do not consider that a request at this meeting from Ms Ellis meant that the failure to produce the lease documents constituted a denial of procedural fairness in the making of the decisions under s 19(5). When one reads the transcript of the meeting as a whole a number of features become apparent. First, Ms Ellis is a dominant voice at the meeting. So much so that she repeatedly talks over people, both visitors to the meeting there to explain their leases, and over Mr Gosford. The transcript reveals Ms Ellis is frustrated, disappointed and aggrieved by the CLC's conduct over many years about land tenure at Amoonguna, but the transcript further reveals that it was difficult for Mr Gosford to complete many sentences at all without interruption. Notwithstanding those difficulties, it is clear that those present from (for example) the Council and the IES were attempting to answer questions about the leases, what would be done under them, and deal with complaints and queries people had (not just Ms Ellis) about what was and was not being done in Amoonguna. This included issues such as local employment - being the example counsel gave during the hearing as to why sighting the actual leases was material. There was, in my opinion, a clear willingness to tell traditional owners whatever they wished to know about the leases. 393 There may be circumstances where the terms of the lease are central to the consent of a group of traditional owners, one way or the other. Alternatively, the terms of a lease may be central to the "understanding" of the group, for the purposes of the first limb of s 19(5). Understanding of, and consent to, the terms of a lease may however be achieved in many ways. Here, where the core lease terms had been the subject of a written presentation to traditional owners, where the people present had a chance to ask questions, and did so, and where this was a follow-up meeting to the one in September, it is not apparent on the evidence that the actual clauses of the leases as expressed in written form were of any material concern to the traditional owners as a group. At a finer level, it is also not apparent of what concern they were to Ms Ellis. Aside from her demand to see them, which in the transcript and in context can be set alongside many other demands to see many other documents, or to have answers to many other questions, no content is given by her about what it was about the documents themselves that meant she needed to see them. Further, it was clear she was implacably opposed to the grant of the impugned leases, heading up as she did the push from ICL to secure a head lease for Amoonguna, so once again it is difficult to see what it was about the detailed clauses of the lease (as opposed to the core terms presented) that might have been material to the group's decision, or to her own decision. There is no evidence that she needed to see the leases to make up her own mind. There is ample evidence her mind was made up, and it was made up against the impugned leases. There is no evidence any other traditional owner needed to see the leases to make up her or his mind, or to understand the proposal. 394 The applicants also relied on a letter from Mr Midena dated 16 January 2014 but I can see no request for copies of the impugned leases in that letter, or even details of them. That is hardly surprising since this letter was written in what might be described as the hiatus between the July 2013 meeting where ICL was apparently approved as the lessee (although the CLC disputed the outcome of this meeting) and the revival of the impugned leases proposal in early 2015. 395 I make the same finding about Mr Midena's letter of 24 February 2015. That letter has much content about terms of leases, but it concerns the terms of the leases proposed by ICL for Amoonguna, and in substance is Mr Midena's attempt to have the CLC agree to the grant of those leases, on the basis of the consent given by the traditional owners, but then not acted on.

[50]

Failure to consider relevant material: Ground 5 396 The applicants' argument here fails at the first hurdle, in my opinion. This ground depends on the applicants' characterisation of traditional owner consent as a relevant consideration in the exercise of the discretionary power to direct a Land Trust to grant an estate or interest in land. 397 For the reasons I have set out above, I do not agree. The consent of traditional owners, as a group is - like the consultation with community members affected in s 19(5)(b) - a precondition to the discretionary power to issue a direction arising. That is the correct legal characterisation of the role of traditional owner consent, and it accords with the purpose of the Land Rights Act, as interpreted by the authorities to which I have referred. A ground based on relevant considerations arguments must fail. 398 While it is true that Mr Bagshaw's report was due fairly shortly after the 12 October 2016 meeting, and while it is also true on the evidence that Mr Bagshaw was briefed to provide the CLC with an updated opinion about the composition of the traditional owner group at Amoonguna, and not just to provide an opinion about the connections between two particular families and the traditional owners of Amoonguna, the difficulty for the applicants is that there is no evidence that the current opinion - that of Ms Wilmot from 2012 - was inaccurate in October 2016. 399 Ms Wilmot was not cross-examined to suggest it was. Indeed, the applicants sought to rely on her 2012 report in other grounds of review. Mr Bagshaw was not called, and there is no suggestion that, if he did report (and no report is in evidence), he reached conclusions that were materially different from those Ms Wilmot reached in October 2016. 400 Finally, even if these difficulties could have been addressed, I would not have been inclined to accept that in 2016 or 2018, this Court should find that an anthropological opinion was material or critical to understanding the composition of a group of traditional owners of Aboriginal land for the purposes of ascertaining consent as a group, where that function is conferred on a body comprised of indigenous people. It seems inconceivable that the traditional owners themselves could not explain who formed their group and why, and it seems inconceivable that their own voices (if necessary, as reported by CLC officers) should not be the primary source of information for the CLC. To have a position where the say-so of an anthropologist is determinative of the composition of a group of traditional owners seems antithetical to the scheme of the Land Rights Act. 401 Aside from the evidentiary difficulties this ground faces, there is some confusion in the applicants' contentions on this ground between failure to take into account a relevant consideration (as explained by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39-40), and failure to deal with material or information actually or "constructively" before the decision-maker. They are different kinds of errors. The former, as is well-established, has its source in the scope, subject matter and purpose of the applicable legislative scheme: either that scheme identifies a matter as a consideration which must be taken into account, or it does not. 402 The applicants identified the latter description of error as coming at least in part from observations by Gibbs CJ in Peko-Wallsend at 31, where his Honour held that, if the Minister had relied on a summary of facts from his officers (as he was entitled to do) but that summary "fails to bring to his attention a material fact he was bound to consider, and which cannot be dismissed as insignificant or insubstantial", then the Minister will have failed to form his satisfaction according to law. It was in this context that Gibbs CJ observed, in the immediately following paragraph that on the facts in Peko-Wallsend, the material fact that Ranger 68 was within the land recommended to be granted as Aboriginal land, had been raised expressly in correspondence with the relevant Department and was to be treated as in the possession of the Minister. 403 In my opinion, this latter observation by his Honour formed part of the reason about why the failure to have regard to material information - when it was to be treated as known to those providing the summary to the Minister - could cause the Minister's state of satisfaction to miscarry. I do not read Gibbs CJ as articulating any independent error based on "constructive knowledge" of facts. 404 Further, although Gibbs CJ's language does refer to a "material fact" a decision-maker is "bound to consider", it is quite clear that the law has developed in accordance with Mason J's articulation of the considerations ground, which is not based on a failure to consider a piece of information or evidence. That failure may give rise to other kinds of errors, of the sort described by Gibbs CJ, which focus on how the formation of a state of satisfaction might miscarry if there is a significant enough factual error, but it is not a considerations analysis as Australian law now understands that concept: see Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22; 254 CLR 28 at [41]-[42]; Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [64]-[68] (Kenny, Griffiths and Mortimer JJ). See also my comments in Sevdalis v Director of Professional Services Review (No 2) [2016] FCA 433 at [154]-[155] and BVW17 v Minister for Immigration and Border Protection [2017] FCA 1508 at [60]. 405 Nor does the applicants' argument derive any support from the decision of Toohey J in Videto v Minister for Immigration and Ethnic Affairs [1985] FCA 449; 8 FCR 167 at 178-179. The context of his Honour's remarks is an asserted duty to make inquiries. In that context, Toohey J refers to a situation where "the material placed before the Minister or his delegate contains some obvious omission or obscurity that needs to be resolved before a decision is made" (at 178). In that case (review of a deportation decision), the material fact concerned details about the applicant's relationship with his young child in Australia. The existence of the young child was noted but the material held by the Department about the applicant's relationship with the child was not before the Minister and the applicant was discouraged by the Department from submitting such information. In those circumstances, Toohey J held that the "matter" (the applicant's young child, his relationship with him and how deportation would affect this) was constructively before the Minister because the Department had all this information but had not provided it to the Minister and dissuaded the applicant from doing so. Analytically, there are parallels with the approach taken by Gibbs CJ in Peko-Wallsend: that is, there was information available to the Minister (because it was in the possession of, and within the knowledge of those in the Department advising the Minister) which was material to the decision to be made but was overlooked or not considered. A more recent example of the application of the same principle in another jurisdiction is Gibson v Minister for Finance, Natural Resources and the Arts [2012] QSC 132; 192 LGERA 118 at [108]-[110]. See also Barrett v Minister for Immigration (1989) 18 ALD 129. 406 This approach is consistent with the approach of Bromberg J in Buchwald v Minister for Immigration and Border Protection [2016] FCA 101; 242 FCR 65 at [64]. I do not consider the applicants' contentions are assisted by this line of authority, when the specified ground of review is a considerations ground. Particularly not when, as I have found, it is not correct to characterise traditional owner consent, as a group, as a relevant consideration in the exercise of power under s 19(5).

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Legal unreasonableness: Ground 6 407 The state of the evidence is, once again, problematic for the applicants. The Bagshaw report was not adduced in evidence, and there is no evidence whether or not it had been completed at the time of trial, or whether it was available to the CLC Committee in any form. There is evidence, from the CLC contract with Mr Bagshaw, that he was instructed to undertake 15 days of work on his report, with it being due on 5 November 2016. The contract was signed on 24 October 2016: that is, after the CLC Committee decision, although the applicants contend that is immaterial because in an informal sense, the CLC knew they would engage Mr Bagshaw as evidenced by the references made to Mr Bagshaw by Mr Gosford in the 12 October 2016 meeting. 408 A key aspect of the applicants' arguments on this ground is that the reason for the CLC briefing Mr Bagshaw was, at least in part, because of the assertions from Ms Ellis and ICL about who need to be consulted on any decisions about Amoonguna land, and who needed, amongst the traditional owner group, to agree to decisions about Amoonguna land. 409 On the basis of that asserted fact, the applicants contend there was no impediment to the CLC Committee postponing its decision until the Bagshaw report was completed, and (the applicants contend) the Committee could be certain that the right people had been consulted, and that there was consent from the "right" traditional owners (or, that there was no opposition from key traditional owners, to put the proposition positively towards the applicants' claims). 410 It is correct that the brief to Mr Bagshaw expressly referred to the assertions of ICL in particular about the approach to traditional decision-making in the Amoonguna community. It said: Advice is also required in regard to the content and accuracy of anthropological references, particularly in relation to definitions, assertions and application of traditional ownership or the exercise and nature of Arrernte traditional decision-making (among other matters) that occur in the various documentation prepared on behalf of the Imwernkwenhe Community Limited (ICL), a registered charity that has made wide-ranging and controversial assertions concerning the exercise of traditional Aboriginal rights and interests apparently "gifted" to ICL by its members. The briefing information provided outline the history of these matters and attempts by the staff of the Central Land Council to address these matters. An independent consultant's report is required by the Central Land Council in order that the findings may be considered and appropriate action taken to address matters arising. The situation is extremely complex and will require very sensitive treatment by the consultant. 411 One of the services Mr Bagshaw was expressly instructed to provide was a report to the CLC Anthropology Section on: • Identification of traditional owner groups affiliated with the area and the nature of that group affiliation, with reference to sites, dreaming tracks and traditional estates. Where the previous information on traditional ownership is updated by field work, updated genealogies and/or lists of the relevant native title and custodians should be provided, ideally by groups. • Identification of those people who traditional owners assert are not traditional owners, and the reasons why they are not under their traditions; • An anthropological analysis (if considered appropriate upon review) of the material produced by the Imwernkwenhe Community Ltd (ICL) concerning decision-making and land interests at the Amoonguna ALT; 412 The question of the need for a new anthropological report on these matters was raised in cross-examination with Mr Connelly. Mr Connelly gave the following evidence under cross-examination: MR WOOD: And in paragraph 17 you say: It's my opinion that the identity of the traditional Aboriginal owners of Amoonguna and principles governing membership of the group are well known to the CLC, through research and consultation CLC staff have conducted over many years, and the position has been settled. Now, the impression that's created by that paragraph is that there's little room for doubt about those matters; do you agree?---I agree. And that's your opinion?---Yes. Okay. But you say in paragraph 19 that in your experience, traditional ownership can become contested or disputed. Now, I've assumed that your statement in 19 relates to at least Amoonguna, perhaps amongst other 5 areas?---Yes. And so despite your assertion in 17 that the identity of traditional owners and principles governing membership of the group are settled, you accept that, indeed, traditional ownership, which encompasses those topics, can be disputed?---Yes. And you agree that they're inconsistent statements?---No. Why is that?---Well, because I think in the case of Amoonguna that we're well familiar with the core group of traditional owners and occasionally they - well, and that in the case of Amoonguna there were issues surrounding the Tilmouth and Satour family and their ongoing residence on the land trust. … But in paragraph 21 you also say, in that same sentence: And more recently, because of the issues about the company known as ICL, that claims to represent traditional Aboriginal owners as a corporate vehicle, and has disputed the CLCs role on land-use issues. So you would agree with me, wouldn't you, that, aside from the issue about the Tilmouth-Satours about the identity of traditional Aboriginal owners, there is indeed a dispute about the decision-making process of the group?---There's certainly a disagreement within the group, it would seem. Yes. Yes. And indeed that was one of the very topics - the decision-making process of the group - that you asked Mr Bagshaw to advise on?---Yes. May I refer to the brief to clarify that? Yes. I can take you there. I will find the page. You may be quicker than me. I will try and find it myself. I'm told it starts at 1163?---Yes, that's correct. So we asked Mr Bagshaw to: In relation to definitions, assertions and application of traditional ownership, or the exercise and nature of Arrernte traditional decision making, among other matters that occur in the documentation prepared on behalf of the Amoonguna Community Limited. And if you drop down to page 1180, which is a more detailed - - -?---Yes. No, that's the - so the third paragraph, second line, is what I just read out. I see. Thank you for that. So you would agree, clearly, that the purpose of the brief to Mr Bagshaw was not confined to the Tilmouth-Satour issues?---No. 413 Mr Connelly was not pressed any more than this on why Mr Bagshaw was retained, at the time he was, to report on what he was asked to address. In chief, Mr Connelly gave no other details in his affidavit. 414 The applicants did not challenge Ms Wilmot in cross-examination that the table she produced in her evidence was inaccurate, as at the date of the 12 October 2016 meeting, or at the date of CLC Committee's decision, although Ms Ellis deposes in her affidavit that she considered it to be missing some traditional owners. They did not put to Ms Wilmot that there had been material changes in the composition of the traditional owner group so that the way she understood decision-making to work in that group was unreliable. Rather, the cross-examination of Ms Wilmot concerned putting the views of Ms Ellis about whether Mr Oliver needed to be at the meeting, and whether Ms Wilmot considered she needed to speak directly to Mr Oliver. As I have noted at [258] above, Ms Wilmot disagreed with the propositions put to her in cross-examination. 415 The state of the evidence meant that the applicants were unable to put much by way of submission about what might have occurred had the CLC Committee elected to wait until Mr Bagshaw produced his report. 416 This can be contrasted with the approach taken in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332, the decision upon which the applicants principally relied for this ground. Li concerned the exercise of a discretionary power reposed in a Tribunal to adjourn a merits review from time to time. The applicant had, in substance, asked for an adjournment as she was awaiting the outcome of a review by Trades Recognition Australia of her unsuccessful application for a skills assessment. Production of a positive skills assessment was necessary in order for her to secure the visa she had applied for. The Tribunal refused to adjourn the review and made a decision, in part based on the fact the applicant did not have a positive skills assessment. In the search for what the plurality called an "evident and intelligible justification" of the way in which the Tribunal's discretionary power was exercised, the plurality said this about the Tribunal's state of knowledge (at [83]): The purpose of s 360(1) has already been referred to. It is to provide an applicant for review the opportunity to present evidence and arguments "relating to the issues arising in relation to the decision under review". The question which remained in issue when the Tribunal made its decision was the satisfaction of a visa criterion by a complying skills assessment. Although the Tribunal could not be expected to assume that the second skills assessment, when reviewed, would favour Ms Li, it did not suggest that there was no prospect of the second skills assessment being obtained, or that the outcome could not be known, in the near future. In these circumstances it is not apparent why the Tribunal decided, abruptly, to conclude the review. 417 In other words, in finding the Tribunal's refusal to adjourn the review was legally unreasonable, the plurality looked to what the Tribunal knew about the prospects of the second skills assessment being different from the (unsuccessful) first one. This kind of assessment is an integral part of evaluating the justification for the exercise of power. 418 In the present case, there is no evidence before the Court on which it might base a finding about what the CLC Committee knew, or should have known or appreciated, about the likely (or even possible) outcome of the Bagshaw report, so as to measure the reasonableness or unreasonableness of it proceeding to make a decision. 419 Ground 6 fails for this reason. It also fails for at least two other reasons related to the evidentiary foundation for the applicants' legal argument. First, the CLC Committee did not exercise any discretionary power adversely to the applicants, in terms of refusing to postpone its decision. It is true the evidence reveals that Mr Midena wrote to the CLC on 14 October 2016 and asked for an "undertaking from the CLC that it will not direct the relevant Land Trust to grant any estate or interest in Amoonguna without, first, giving me and ICL at least 8 weeks prior written notice of the intention to make such a grant". However, this was not a request to the CLC Committee to postpone its decisions until the Bagshaw report was available. Rather, this was a general holding letter so that Mr Midena and his clients would have time to consider issuing proceedings (and applying for injunctive relief, as they ultimately did) before any direction was given. Mr Gosford had advised the attendees at the 12 October 2016 meeting, including Ms Marie Ellis, of the date of the CLC Committee meeting on 19 October 2016. At most, it might be said the CLC Committee did not anticipate an argument (not raised) that it should wait for the Bagshaw report, and nor did the CLC officers advising the Committee, such as Mr Gosford. That is no basis for a finding of legal unreasonableness in the making of its decision under s 19(5). 420 Second, and related to the first, there is no evidence the CLC Committee members even knew about the Bagshaw report, let alone about its terms of reference in relation to traditional decision-making in the Amoonguna community. It is the Committee in whom any implied power to decide to postpone a decision would be vested. The applicants contend, based on an analogy with "the bureaucracy" to which Gibbs CJ referred in Peko-Wallsend at [31], that CLC officers such as Mr Gosford and Ms Campbell knew about the Bagshaw briefing, and knew about the dates and times for the CLC Committee meetings, and could have informed the CLC Committee of the pending report and the need to postpone the meeting. The CLC Committee was therefore said to have constructive knowledge about the Bagshaw briefing. However, the evidentiary position remains that the applicants have not established that any members of the CLC Committee knew about the Bagshaw retainer, or its subject matter, and have therefore not established the Committee was put in a position of being able to consider whether the timing of the 19 October 2016 meeting was appropriate because of that outstanding report.

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The applicants' challenge to the affixing of the seal 425 I have set out the applicants' arguments about the affixing of the seal at [206]-[210] above, as well as the extent of the agreed factual basis against which their arguments are to be assessed. 426 It is clear there was no compliance with the terms of s 4(5) of the Land Rights Act in the way the seal of the AALT has been affixed to the impugned leases. It is clear that the purported retrospective ratification by the written authorisations to which I refer at [336(2)] can have no validating effect because those authorisations are not directed to the person who affixed the seals: namely, Ms Rucioch. Even if one were to accept the CLC's argument that the CLC can, purportedly in compliance with s 4(5), retrospectively ratify (or authorise) the affixing of a seal to a document by which a Land Trust purports to grant an estate or interest in land, the difficulty here is that the retrospective authorisations did not ratify the affixing of the seals by Ms Rucioch. They ratified the affixing of seals by two persons who did not affix the seals. The same is true of the CLC Committee resolution apparently made at the 19 October 2016 meeting: even if this could have been relied upon, it was not directed at Ms Rucioch. 427 Although she may have been a person within the terms of s 4(4) (that is, a staff member authorised to keep the seal), that fact does not bring her within s 4(5). 428 Therefore the principal question is what is the effect, if any, of such non-compliance on the validity and effectiveness of the impugned leases. 429 The applicants submit: The general rule at common law is that a corporation may only contract under its seal. That rule has been modified by statute in certain contexts. In particular, that rule has been modified by statute for corporations incorporated under the Corporations Act. However, as Seddon et al observe, "a corporation that has not been so incorporated, for example a statutory corporation … must use its seal unless there is a specific statutory exemption to be found in the relevant legislation or a common law exception applies". (Footnotes omitted.) 430 I accept this submission. In my opinion, the terms of s 4(3) and 4(5) of the Land Rights Act are intended to give effect to this general law rule, by recognising that a statutory corporation should contract by the use of its common seal and that there is to be a prescribed process for the affixing of that seal, to ensure that a Land Trust is intentionally, formally and appropriately bound by the contractual obligations it purports to assume. Further, for s 4(3)(c) to state that a Land Trust may "acquire, hold and dispose of real and personal property" subject to Pt II of the Land Rights Act is a further recognition that the scheme intends a Land Trust to contract (including in relation to interests in land) by the affixing of its seal. The presumption in s 4(6) supports this construction: a presumption that the Land Trust seal has been duly affixed is only necessary because of the legal effect to be gained from the use of a seal. 431 It is well established that corporations contract through a seal at common law, although there may be exceptions. It is equally well established that a statute may impose an obligation to do so, with non-compliance resulting in no binding contract. In Johnson's Tyne Foundry Pty Ltd v President, Ratepayers and Councillors of the Shire of Maffra [1948] HCA 46; 77 CLR 544, Latham CJ said at 551-552: Independently of statutory provisions, a non-trading corporation at common law was bound by the general rule that its contracts must be made under seal. But there were exceptions to this rule… But if a statute requires that contracts of a corporation shall be made in a particular manner the statutory provisions necessarily supersede the common law. Thus in Young & Co. v. Mayor, &c., of Royal Leamington Spa it was held that where a statute provided that every contract made by an urban authority the value or amount of which exceeded £50, should be in writing and sealed, the urban authority was not bound by any contract not so made, and was not bound even by an executed contract of which the authority had the full benefit and enjoyment where that contract was not made in the prescribed manner… 432 Clearly, a corporation incorporated under the Corporations Act 2001 (Cth) is not subject to the common law requirement that it may only contract under its seal: s 127. This provision is not applicable to statutory corporations. Authorities concerning the common law requirement for seals, particularly in relation to statutory corporations, are few and far between. The most recent appellate court affirmation of the common law position in Australia appears to be the Queensland Court of Appeal decision of Victoria Park Golf Club Inc v Brisbane City Council [2001] QCA 528, where McPherson JA (with whom McMurdo P and Mackenzie J agreed) said (at [10]): The common law rule is that a corporation is, subject to recognised exceptions, incapable of contracting or doing any other act except by or under its common seal. See Mayor of Ludlow v Charlton (1840) 6 M & W 815, 817-818, 151 ER 642, 643, where Parke B said: "I doubt whether any case has gone so far as to shew that a corporation can bind itself by such a contract as this, not under seal. The old cases permitted as to certain small things, which must of necessity be done without that formality, and this exception has been extended by the modern cases to things which the corporation, by the nature of its constitution, must do to carry on its concerns: but that principle does not apply to the case of a municipal corporation; it cannot be necessary for the purposes of its constitution, that it should part with so much of its property." 433 After referring to the Queensland legislation in relation to the formation of contracts by Brisbane City Council, his Honour held that in that case: Abolition of the common law requirement that a corporate act by the Council is to be done under its seal is confined in s 40(1) to the case of a contract made by a delegate or other person "acting with the authority of the Council". 434 Seddon et al, in the leading text, Cheshire & Fifoot's Law of Contract (11th Australian ed, 2017) provide a useful outline of the state of the law in relation to the use of seals by statutory corporations (at [17.71]): Although corporations incorporated under the Corporations Act 2001 (Cth) are freed from the necessity of contracting under the corporate seal, a corporation that has not been so incorporated, for example, a statutory corporation (including a local government body), must use its seal unless there is specific statutory exemption to be found in relevant legislation or a common law exception applies. The rule was obviously inconvenient and was, at times, deplored by the judiciary. There are three important common law exceptions to this rule. It may be that in modern times these exceptions have overtaken the rule. First, the rule did not apply to trading corporations… Secondly it was recognised from the earliest times that a requirement that every contract made by a non-trading corporation must be made by seal was obviously burdensome. Accordingly, when the contract was of frequent occurrence, of trifling importance or a matter of urgent necessity the rule did not apply. Thirdly, where a contract has been duly performed by one of the parties, an action lies against the other party for breach of an implied promise to pay for the benefit requested and received… The significance of this rule today is that it may still be possible to argue that a statutory corporation, that purports to make an important contract without the use of its seal, has in fact not made an effective contract so long as it is still executory, assuming that there is no legislative provision that has abrogated the rule. 435 None of the common law exceptions referred to by Seddon et al apply here. Not only does the Land Rights Act not abrogate the common law rule, it expressly gives effect to the general common law rule in relation to Land Trusts. 436 More critically than the common law position, the statutory requirement in the case of the Land Rights Act is unambiguous, and effect should be given to it, especially so when what is at stake is the disposition of an interest in land, to which particular formalities generally attach. 437 Whatever protective function or effect s 19(6) may have on the Land Council's direction under s 19(5), it cannot have any such effect on non-compliance with s 4(5). The terms of s 19(6) simply do not engage with Pt II of the Land Rights Act in which s 4(5) is found. Whatever view is taken of its effectiveness, what is protected by s 19(6) is any legal infirmity in the direction given by the Land Council to the Land Trust. Section 19(6), in its text, deals with a situation where a Land Council "in giving a direction….fails to comply with subsection (5)". That language directs attention to the two conditions on the direction power that are set out in subsection (5), and to nothing wider than that. 438 Rather, the question is how do the terms of s 19(3) and 19(4A) interact with the terms of s 4(3) and the requirements of s 4(5). It is appropriate to set s 19(3) and (4A) out again: (3) With the consent, in writing, of the Minister, and at the direction, in writing, of the relevant Land Council, a Land Trust may, subject to subsection (7), grant an estate or interest in land vested in it to the Commonwealth, the Northern Territory or an Authority for any public purpose or to a mission for any mission purpose. … (4A) With the consent, in writing, of the Minister, and at the direction, in writing, of the relevant Land Council, a Land Trust may, subject to subsection (7), grant an estate or interest in the whole, or any part, of the land vested in it to any person for any purpose. 439 Section 4(3) and (5) provide: Legal status of Land Trust (3) A Land Trust: (a) is a body corporate, with perpetual succession; (b) shall have a common seal; (c) subject to this Part, may acquire, hold and dispose of real and personal property; and (d) may sue and be sued in its corporate name. … (5) The common seal of a Land Trust is to be affixed to a document only with a written authority signed by: (a) if the Trust consists of 4 or more members - at least 3 of those members; or (b) if the Trust consists of 3 members - at least 2 of those members. Note: Section 7 deals with the membership of a Land Trust. 440 What act or acts does the Land Rights Act identify as the "grant", and will that act or acts necessarily require compliance with s 4(5)? 441 The discretionary power in s 19(3) and (4A) must be read with the terms of s 4(3), which is the general provision authorising a Land Trust to dispose of real property, and constituting a Land Trust as a statutory entity capable of dealing with interests in land in a contractual sense. Section 19(3) and (4A) then confer a particular power on a Land Trust, s 19 being the central provision in the Land Rights Act regulating dealing with land by Land Trusts. 442 The parties' written and oral submissions spent considerable time addressing complex questions about what was required for a legal "grant" to take effect, and whether when only some parties had executed the leases (as was the case for the Northern Territory and IES leases) there was an agreement to grant which created at the least an equitable interest in the land. These submissions need only be addressed to a limited extent. The correct focus is on what the statutory regime requires. 443 I do not accept the CLC's submission that there is a "grant" within the meaning of s 19(3) and (4A) when the Land Council gives the Land Trust a direction under s 19(5). The subject matter of s 19(5) is not a grant of an estate or interest: it is a direction by a Land Council to a Land Trust. The legislative scheme generally and s 19 in particular (s 19(2)(c) is another example) contemplates Land Trusts will act on, or after, a direction by a Land Council, rather than acting independently to determine whether an estate or interest in Aboriginal land held by a Land Trust should be created. That is also the clear effect of s 5(2), which requires a Land Trust to exercise its functions in accordance with Land Council directions and where a direction is given, to take action in accordance with that direction. 444 Section 19(5) is concerned with the limitations on the circumstances in which a Land Council is able to give a Land Trust such a direction. That construction is confirmed, in my opinion, by the use of the adjective "proposed" in s 19(6). The use of the word "proposed" in the phrase "proposed grant" indicates that the only subject matter of s 19(5) is the direction, and that the grant (which is "proposed" by the giving of the direction) will be made in exercise of a different power: here, s 19(3) and (4A). 445 The principal provisions in which the power of a Land Trust to make the grant is contained are, relevantly, s 19(3) and (4A), with similar powers being conferred in s 19(2) and 19(4). 446 If s 19(3) and (4A) are the applicable sources of power, as I consider they are, the question remains what meaning is to be given to the word "grant" in s 19(3) and (4A). Given the context and wording of both subsections in s 19, the word "grant" ought to be afforded the same meaning in each subsection. Other parts of s 19 inform the answer to that question. 447 Section 19(1) contains the prohibition which governs the remainder of s 19. By its terms, Parliament intends that not only any dealing in or disposal of Aboriginal land occur strictly in accordance with the limits set out in s 19, but also that any "agree[ment]" to deal in or dispose of Aboriginal land be subject to those limits. So, for example, s 19(1) (read with s 5(2)) would prohibit a Land Trust from agreeing with a third party that the third party lease Aboriginal land for the purposes of, say, a medical clinic, unless there was a direction under s 19(5) and then an exercise of power by the Land Trust under one of the applicable provisions such as s 19(2), (3), (4) or (4A), taking into account the limitations imposed by some of those provisions (such as ministerial consent). 448 This construction is consistent with the protective effect of s 19, and the Land Rights Act more generally, in relation to the interests of traditional owners and Aboriginal communities in Aboriginal land they have been granted under ss 10 and 11. It should be noted that s 11A, does confer a limited power on a Land Council (not a Land Trust) to agree to grant an estate or interest in land before there is a grant of Aboriginal land to a Land Trust. This section was inserted in 1987 following the Aboriginal Land Rights (Northern Territory) Amendment Act 1987 (Cth). The insertion appears to be in response to Justice Toohey's report to the Minister for Aboriginal Affairs, entitled "Seven Years On" dated December 1983, where his Honour recommended that s 23(1)(e) of the Land Rights Act, which confers a function on Land Councils to negotiate with persons desiring to obtain an estate or interest in land in the area of the Land Council, be amended to allow for negotiations in respect of land which is subject to an application to the Commissioner to have recognised as Aboriginal land but which has not yet been recognised as Aboriginal land, and so has not been vested in a Land Trust. The explanatory memorandum indicates that the insertion of s 11A corresponds with the amendment to s 23(1)(e), so as to allow a Land Council to enter into agreements the subject of negotiations under s 23(1)(e). 449 For present purposes, the relevance of the text of s 19(1) is that it distinguishes between a dealing, a disposal and an agreement to do either of those things. It suggests that not all those actions are equivalent to a "grant". 450 Then there is the text of s 19(8) and s 19(8C) which use the word "transfer" in a context that suggest it means something different from a "grant". The same can be said of s 19(9) which is related to s 19(6), but also contemplates that a third party may acquire an interest by "grant" or by "transfer". 451 Thus, it would appear that one action which the word "grant" does not include is the transfer of an interest from a grantee to another person. Rather "grant" is concerned with the creation of a new interest in Aboriginal land by the Land Trust, and is directed towards conduct as between the Land Trust and a third party. 452 Otherwise, it is notable that s 19 consistently uses the phrase "grant an estate or interest" throughout its text. The term "grant" is also used in the Land Rights Act in other, similar contexts, such as in Part IV, dealing with mining on Aboriginal land. Section 40, for example, deals with the "grant" of exploration licences and s 45 deals with the "grant" of mining interests. 453 These provisions lead me to conclude that the word "grant" as it is used in s 19(3) and (4A), in the same way it is used elsewhere in the Land Rights Act, intends to import the general law usage of the word. There must also be some intended equivalence between the use of the word "grant" throughout the Act in relation to a Land Trust and the use of the word "dispose" in s 4(3). 454 In the current context, little assistance is gained from the inclusive but not exhaustive definition of the word "grant" in s 3(1) of the Land Rights Act. That definition states that the meaning of grant, in relation to an interest in land, includes "the doing of any action by reason of which the interest arises". The inclusion of actions does not take the analysis any further for the purposes of understanding what is meant in s 19 by the "grant of an estate or interests" for the purpose of determining when the seal of a Land Trust needs to be affixed. Similarly, I accept the applicants' submissions that the terms of s 3(2) of the Land Rights Act, are of no relevance. That subsection provides that the term "estate or interest in land" in the Land Rights Act should be read to include a right against the Crown to a grant. That has no relevance to s 19(3), (4A) and (5). 455 The meaning of the word "grant" in the context of conveyancing and the disposition of interests in land seems elusive. None of the authorities cited by the parties on this issue considered the meaning of "grant" in this context, nor did they consider when a grant is said to occur. I consider the concept of a grant as it is used in the context of the Land Rights Act refers to the legal conveyance of proprietary interest from one party to another, and occurs on the valid execution and exchange of contracts. This definition appears to me to be consistent with what little authority there is on the term "grant". In Coulthard v South Australia [2014] FCA 101; 218 FCR 148 at [30] and [83], Mansfield J accepted that the "conventional conveyancing meaning" of the word "grant" is: the original creation of a freehold estate or of a perpetual lease separated from the reversionary interest… 456 Similarly, in the UK, the Court of Appeal considered in Ryan v Islington London Borough Council [2009] EWCA Civ 578 at [57] (Rimer LJ; Waller and Aikens LJJ agreeing) that "grant" in the context of the Housing Act 1985 meant "the conveyance or lease by which the premises are to be assured to the purchaser on completion". 457 In the case of a statutory entity such as a Land Trust, operating in accordance with s 4(3), the use of its seal is required: it is the evidence of its authority to enter into a contract. A Land Trust only has the authority given to it by the Land Rights Act. Section 4(5) expressly sets out the circumstances in which a seal can be affixed as evidence of a Land Trust's authority to enter into a contract or make an agreement, and by the use of the word "only" the provision indicates Parliament's intention that the method there prescribed must be adhered to. 458 I do not consider there can be a valid exercise of power by a Land Trust under s 19(3) and (4A) to "grant" an interest or estate in Aboriginal land (that is, to convey by execution of, relevantly, a lease or licence) unless and until there is compliance with the terms of s 4(5). Contrary to the CLC's submissions, there is a clear temporal limitation to be implied in s 4(5) for it to serve its statutory purpose. A seal is evidence of authority to contract (and thus to convey), and without a seal affixed in accordance with law there is no authority to contract (or convey). The seal is to be affixed at the time the contract is entered into: here, when the leases and licence are executed on behalf of the Land Trust. Either at that point in time, there was the requisite authority to affix a seal under s 4(5) and bind a Land Trust, or there was not. In my opinion, that is the way s 4(5) is intended to operate. 459 The consequence is that none of the impugned leases and licence were executed by the AALT in accordance with the Land Rights Act because the seal of the AALT was not affixed in compliance with s 4(5). I do not accept the CLC's contention that a later authority purportedly given under s 4(5) and after execution of a contract, would suffice. Given the purpose of a seal, either the authority to contract exists, or it does not. The CLC relied upon the decision of Blow J in R v Turner (No 9) [2001] TASSC 97; 162 FLR 290 at [28]-[33]. That was a collateral challenge to, amongst other things, a delegation to grant a fishing permit, in the context of a fisheries prosecution. A delegation was required by the Act to be "by writing under its common seal". The terms of s 10 of the Fisheries Administration Act 1991 (Cth) did not contain a provision equivalent to s 4(5) of the Land Rights Act. Rather s 10 provided that the seal "must not be used except as authorised by the Authority". There were several challenges to the delegations, including several involving the affixing of the seal. There were two meetings of the Australian Fisheries Management Authority (AFMA) where the affixing of the seal to the delegations could have been authorised as s 10 required: one in January 1992 and one in October 1992. Blow J upheld the argument that the authorisation could not have been given at the January meeting because AFMA did not come into existence until the commencement of the Fisheries Administration Act on 3 February 1992. Blow J did however find that at the October 1992 meeting, the Board authorised, by reason of general resolution about delegations, a delegation made under seal in December 1992. The permits in question were not issued until 15 January 1993. Thus, both the delegation itself and the act on which the delegation (the granting of the permit) occurred after the authority was given by the AFMA Board. 460 On any view, that is the reverse of the chronology in the present proceeding. 461 There also remains the fact that the authorities which were issued did not authorise Ms Rucioch to affix the seal, nor could they have, unless she held one of the two positions set out in the authorities signed by the AALT Board members to affix the seal. Contrary to the situation in R v Turner (see Blow J at [33]) the Land Rights Act is prescriptive about the manner in which documents can be executed under seal. Although the Land Rights Act is not prescriptive about the persons to whom authority may be given to execute documents under seal, the authorities signed by the AALT Board members under s 4(5) prescribed the persons who had authority to affix the seals, being the CLC Chairman and an executive member of the CLC. The statute, through s 4(5) gives legal effect to those authorities in their terms, and only in their terms. 462 Further, reliance by the CLC on the presumption in s 4(6) must be rejected in circumstances where, as here there is a challenge to the validity of the affixing of the seal. Section 4(6) sets out a rebuttable presumption, nothing more. That was the approach taken by Blow J in R v Turner: see [21]. 463 The requirements of s 4(5) are no mere formalities: what a Land Trust is doing is dealing with land it holds for the benefit of Aboriginal people. It is a statutory trustee: see s 5(1)(b) and Wurridjal at [128] (Gummow and Hayne JJ); Rirratjingu at [89], where Mansfield J said: However, the fact that the Land Trust was subject to express constraints in ss 5, 12, and 19 of the ALRA as to how it can deal with the land was further indication that the trust in question was not a trust in an ordinary sense, but in the non-technical sense for statutory purposes... 464 A Land Trust is entitled to deal with Aboriginal land only in the way the Land Rights Act authorises. Otherwise, the interests of traditional owners and Aboriginal communities in their land are rendered vulnerable to interference and diminution outside the framework the Act has created. I do not accept the submissions of the CLC, relying on the principles of statutory construction set out in Project Blue Sky, that there is a basis in the text, context and purpose of the Land Rights Act, and Pt II in particular, to find that Parliament intended that non-compliance with s 4(5) would not affect the validity of the act purporting to be authorised by the affixing of the seal. For the reasons I have set out above, the seal of the Land Trust is the way in which the authority given to the Land Trust is made clear to those who would contract with it, those who are affected by its actions and those whom it purports to empower. A legislative choice was made by the Parliament about the level of prescription to attach to how that authority was to be given. 465 Unsurprisingly, when what was in issue was the giving of authority to a statutory corporation to interfere with the proprietary interests of Aboriginal people, granted and recognised under the very same piece of legislation and for whose benefit the Land Trust performs its functions, a relatively high level of prescription was imposed by Parliament, in the terms of s 4(5). There is prescription as to who is to hold the common seal and how the authority to affix the seal is to be given and by whom that authority was to be given. The Parliament went so far as to prescribe how many members of the Land Trust would be needed to give that authority, again clearly conscious of the serious effects of an exercise of the Land Trusts' powers on the proprietary interests of traditional owners and communities. 466 Members of a Land Trust are appointed by the Minister: see s 7(2). They must all be "Aboriginals living in the area of the Land Council in the area of which the land of the Land Trust is situated", or be Aboriginals whose names are set out on a register kept by a Land Council: s 7(6). 467 The purpose of specifying, in s 4(5), a minimum number of Land Trust members who must authorise affixing a seal is clearly intended to prevent abuses of power by individual members of a Land Trust, who are, given the terms of s 7(6), likely to have an interest in the land being dealt with, or be connected to people who do. 468 To that extent, the need for the Court to be satisfied that it is a "purpose of the legislation that an act done in breach of the provision should be invalid" (see Project Blue Sky at [93]) is in my opinion clearly made out. 469 It should be recalled here that until 10 November 2016, the AALT was constituted by the first and second applicants and five other people: see [91] above. Perhaps three of these people would have authorised affixing the AALT seal to the impugned leases. Perhaps not. Certainly on the evidence the first and second applicants would not have done so. There is no evidence about the other four individuals. Of course, without that authority, the lease transactions could not be completed. How the Minister came to appoint new members in November 2016, and how he chose them, was not explained in the evidence. But the importance of the need for contemporaneous written authority is made clear on the facts. 470 The CLC submits that the effects on third parties and the "inconvenience" that could result from construing non-compliance with s 4(5) as going to validity are reasons to avoid such a construction. The CLC relies on the authorities to which the High Court referred in Project Blue Sky at [93] and [97]. As to the latter, the proposition at [97] of Project Blue Sky relates to "public inconvenience", not "inconvenience" as between parties. Those situations are rare, given that any finding of invalidity in an exercise of public power is likely, often to a significant extent, to be "inconvenient" for one or more of the persons affected. Examples of instances where breaches of a provision have not invalidated an act due to "serious general inconvenience" are cited in the Privy Council decision of Montreal Street Railway Co v Normandin [1917] AC 170 at 175 (which was cited in Project Blue Sky at [97]), and include breaches of such provisions as provisions for holding sessions at particular times and places, provisions as to rates, and provisions as to justices acting without having taken the prescribed oath. In another case cited by Project Blue Sky, Clayton v Heffron [1960] HCA 92; 105 CLR 214 at 247, the provision and inconvenience concerned: …the invalidation perhaps at some future time of a constitutional provision possessing all the outward appearances of a valid law on the ground that when it was made managers of the Council had not met managers of the Assembly before the members of the two Houses were required by the Governor to meet. 471 These examples are self-evidently of a different nature to a provision such as s 4(5), read with s 4(3), and the "inconvenience" currently being examined. The Land Rights Act is not a statute directed at the general public in any event: it is a statute directed at the protection of Aboriginal rights and interests in land, once they have been granted. To construe s 4(5) as not going to validity would not advance that protective purpose, and would place the "convenience" of third parties (such as lessees) ahead of the interests of traditional owners and communities. 472 Where the Land Rights Act intended to give preference to the rights of third parties, and in particular third parties who acquire an interest without notice of any irregularity or unlawfulness, it says so expressly: see for example s 19(9). Section 19(6), although the extent of its effectiveness is a matter of debate, is another example of a legislative intention to provide for the effects on third parties of non-compliance with a specific requirement in the Land Rights Act. There are no such express provisions touching on non-compliance with s 4(5) and that, in my opinion, is a factor of some significance. 473 I therefore reject the CLC's proposition that in relation to any of the impugned leases, there was a legally effective "grant" under s 19(3) or (4A) (or indeed under s 19(2)(c) as Senior Counsel for the CLC submitted was the source for the grant of the lease to Congress). These findings say nothing about whether there is an agreement, enforceable in equity. I need not make any such findings, because they do not touch the validity of the direction given to the Land Trust under s 19(5). As I have found, the s 19(5) direction has not been successfully challenged, so the direction stands. The Land Trust remains subject to a valid direction from the Land Council under s 19(5), and it is required by the terms of s 5(2) to act in accordance with that direction. It would seem likely each of the lessees has an equitable interest arising from, at least, an agreement by the Land Trust to grant a lease to each of them, but the more critical point is that the AALT remains obliged to act in accordance with the direction of the CLC, unless that direction is rescinded. 474 The parties to the leases, and the CLC, will be free to take whatever action they consider, and are advised, may be appropriate to move forward with the leases, if that is what they decide to do. 475 Given the conclusion I have reached, there is no need to deal, any more than I have already in determining the argument about the affixing of the seal, with the second contention of the applicants that the failure to exchange counterparts meant there had been no "grant".

[55]

The operation and effect of s 19(6) on the grants and the CLC Committee decision 476 In circumstances where I have not upheld any of the applicants' grounds of review, it is not necessary for me to reach a concluded view on the operation of s 19(6). The construction and operation of s 19(6) was very much at the heart of this proceeding, and a considerable amount of time in written and oral argument was spent on it. I have therefore considered carefully whether I should express an opinion about the proper construction and operation of s 19(6). I have decided it would not be appropriate to do so. It is a question of some significance, and it should await determination in a case where the Court makes a clear finding of non-compliance with s 19(5). One of the main reasons I have reached that view is because it seems to me that a clear finding about non-compliance with s 19(5), and subsidiary findings about how that non-compliance occurred, its nature and extent, would inform the application of the competing constructional choices about s 19(6), because it would provide a concrete situation against which those competing constructions could be tested. 477 For the purposes of s 39B of the Judiciary Act, the applicants, ultimately, did not contend that s 19(6) was ineffective to protect a direction of the Land Council under s 19(5) from being set aside, or declared invalid, by reason of a failure by the Land Council to form a lawful state of satisfaction in the manner I have set out at [376]. That the applicants did not press the Court, for example, to distinguish Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32; 237 CLR 146, and take an approach that was more akin to that taken by the High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; 211 CLR 476 to a full privative clause, is not determinative. Such an argument remains open. In my opinion, there remain real constructional choices about the scope and operation of s 19(6). They should, however, be decided in a case where they need to be decided. 478 Similarly, because I have not found any of the applicants' grounds of review to be made out, I do not need to consider the applicants' principal contentions designed to avoid the operation of s 19(6): namely that s 19(6) cannot and is not intended to protect a direction by a Land Council under s 19(5) from review under the AD(JR) Act and the grant of relief under that Act. As I have noted earlier in these reasons, the applicants' argument on this point was one that does not appear to have been raised before, but it is not to be discounted on that basis. It relies, with good reason, on the terms and operation of the s 4 of the AD(JR) Act, in particular given the Land Rights Act is an earlier piece of Commonwealth legislation. That argument, which deserves serious consideration, should also await a case where it needs to be determined.