Gagudju Association v Northern Land Council [1995] FCA 305

Section 32(1) of the Federal Court of Australia Act 1986 provides that to the extent that the Constitution permits, jurisdiction is conferred on the Federal Court in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Court is invoked. The present application has two distinct parts. The relief sought in paragraphs 1 and 2 relates directly to the question of whether the respondent, as the applicant in other proceedings in which the Court's jurisdiction has been invoked, has the required authority to prosecute those proceedings. It is difficult to imagine a case in which the subject matter of an application has a closer association with the earlier proceedings. It is said by the respondent that the proper course of action would be for the applicant to make its application in the other proceedings but I do not think that is necessarily so. The applicant is not a party to those proceedings and has no standing in them to seek the relief now sought. In my opinion the matters raised by paragraphs 1 and 2 of the application are associated with matters in proceeding VG 464 of 1987 and on that basis the Court has jurisdiction to entertain that part of the claim. The second part of the application, namely the matter raised by paragraphs 3 and 4, does not appear to be in any way associated with the other proceeding. Those paragraphs raise questions of statutory construction which are quite independent of the other matter. Whilst subparagraph 20(c) of the statement of claim is an inadequate response to the applicant's obligation under O 10A r 5, it does at least raise the cross-vesting legislation as a basis for the exercise of jurisdiction and in the circumstances I would for present purposes regard it as sufficient compliance. I am of the opinion that the Court has jurisdiction to entertain the applicant's claim in respect of paragraph 3 and 4. THE ADJR APPLICATION Paragraph 21 of the statement of claim raises for the first time a claim for the review of "the decision of the respondent to continue the said proceedings" which I understand to be a reference to proceeding VG 464 of 1987. At paragraph 18 the applicant pleads that on or after 1 September 1994 the respondent decided, inter alia, to continue with the prosecution of those proceedings. Although no reference is made to the ADJR Act it is apparent from the matters pleaded in paragraph 21 that relief is sought pursuant to that Act; At paragraph 22(a) the applicant claims "such extension of time as is necessary to bring proceedings under the Administrative Decisions (Judicial Review) Act 1977. No amendment to the application has been sought to extend the claim for relief to include review under the ADJR Act. Section 11 of the ADJR Act deals with the manner of making applications under that Act. In some circumstances an application must be made within a prescribed period or such further time as the Court allows, and in other cases where no period is prescribed the Court may refuse to entertain an application for review if it is of the opinion that the application was not made within a reasonable time after the decision sought to be reviewed was made. The facts pleaded in the statement of claim give no clue as to whether in this case a prescribed period applies nor when, or indeed whether, any such period has expired. Leaving aside for the moment the question of whether the review application has been made within time, there is no doubt that the Court has jurisdiction to entertain an application for review of a decision to which the ADJR Act applies. Whether or not the decision pleaded by the applicant is such a decision (assuming the decision asserted was in fact made) is a matter which goes to the merits of the application rather than to the Court's jurisdiction. For the reasons stated it is not possible to discern from the statement of claim whether or not any specific time limitation applies to the bringing of the ADJR Act application and if a limitation which does apply has expired, there is no evidence or other material before the Court upon which it could enter upon a consideration of the question of whether or not an extension of time should be granted.

In the circumstances paragraph 21 and subparagraph 22(a) of the statement of claim should be struck out as tending to cause prejudice and embarrassment. THE STATUTORY SCHEME Section 62(1) of the Land Rights Act establishes the Aboriginal Benefit Trust Account (ABTA). By operation of s 63(2) payments are made into the ABTA from time to time out of the Consolidated Revenue Fund equal to the amounts of any royalties received by the Commonwealth or the Northern Territory in respect of a mining interest in Aboriginal lands. Further, where mining operations for minerals are carried on under the Atomic Energy Act 1953 or any other act on Aboriginal land by, or on behalf of, the Commonwealth, the Northern Territory or an authority established by or under the law of the Commonwealth or of the Northern Territory, certain payments determined in accordance with the Act are paid into the ABTA out of the Consolidated Revenue Fund (s 63(4)). Section 64 provides for the payment of moneys out of the ABTA. From time to time 40% of the amounts paid into the ABTA in accordance with ss 63(2) and (4) is paid out for distribution among the Land Councils established under the Act in such proportions as the Minister determines (s 64(1)) and subsection 64(3) provides that from time to time payments be made to each Land Council in the area in which a mining interest referred to in s 63(2) is situated, or mining operations referred to in s 63(4) are being carried on, of an amount equal to 30% of any amounts paid in accordance with s 63(2) and s 63(4) in respect of that mining interest or those mining operations as the case may be. The application of money paid to a Land Council is regulated by s 35. Subsection 35(1) deals with money paid under s 64(1) and s 35(2) deals with money paid under s 64(3). For present purposes it is necessary to refer only to s 35(2) which provides: 35(2) Moneys paid to a Land Council under subsection 64(3) shall be paid, within 6 months of their receipt by the Land Council, to: (a) Aboriginal Councils the areas of which are, whether in whole or in part, included in the area affected by the mining operations by reason of which the moneys have been paid to the Land Council; and (b) any Incorporated Aboriginal Associations the members of which live in, or are the traditional Aboriginal owners of, the area affected by those mining operations; in such proportions as the Land Council determines. And to s 35(8): (8) Each amount of money that is paid to a Land Council under subsection (2), (3) or (4) shall be held in trust for the bodies to which or persons to whom that amount is eventually to be paid in accordance with this section until that amount is so paid. The functions of a Land Council are regulated by s 23 of the Act. Relevant to this proceeding, subsection 23(3) provides: 23(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.

THE FACTS The following facts are either admitted on the pleadings, established upon affidavit evidence or are otherwise not controversial. The applicant claims to be, and the respondent admits that the applicant is, an Incorporated Aboriginal Association as defined in the Land Rights Act. [The evidence seems to suggest that the applicant is in fact not so incorporated but rather is an association incorporated under Northern Territory legislation. In all probability (although there is no evidence to this effect) the applicant is an association which by virtue of s 35(12) of the Land Rights Act is for the purposes of s 35 taken to be an Incorporated Aboriginal Association. In view of the respondent's admission nothing turns on this point.] The applicant's membership is restricted to the traditional Aboriginal owners of an area of land defined in its rules (the region) as well as to other Aboriginal persons normally and permanently resident in the region and such other locations as the committee of the association from time to time determines. The respondent is a Land Council as defined in the Land Rights Act. The region defined in the applicant's rules is encompassed within that part of the Northern Territory for which the respondent has responsibility, and is the same land as is hereafter referred to as the Ranger land. On 3 November 1978 the respondent and the Commonwealth entered into an agreement under s 44(2) of the Land Rights Act in relation to mining for uranium on the Ranger land. On the same day the then Minister for Aboriginal Affairs made a determination under s 63(4) that there be paid into the ABTA out of consolidated revenue from time to time amounts equal to amounts paid to the Commonwealth as royalties in respect of minerals extracted pursuant to an authority executed under s 41 of the Atomic Energy Act 1953 granting certain parties therein named authority to mine for uranium on the Ranger land. The Commonwealth and those named parties entered into an agreement for the development of the Ranger uranium project and subsequently the latter parties sold their respective interests in and under the agreement to Energy Resources of Australia Limited (ERA). Since 12 September 1980 ERA has mined uranium from the Ranger land and has paid moneys by way of royalties to the Commonwealth. From time to time moneys have been paid into the ABTA pursuant to s 63(4) of the Land Rights Act in respect of the mining operation (the royalty equivalents). The respondent has from time to time paid money received as royalty equivalents to the applicant pursuant to s 35(2). On 7 November 1985 the respondent instituted proceedings in the High Court of Australia against the Commonwealth and ERA (the Ranger litigation) in which proceedings it sought inter alia an order rescinding the agreement executed by it and the Commonwealth on 3 November 1978 and a declaration that the agreement is void and of no force or effect whatsoever. The Ranger litigation was subsequently remitted to the Federal Court and became proceeding VG 464 of 1987. Between 18 and 24 August 1994 the parties to the Ranger litigation took part in mediation proceedings aimed at resolving the litigation. The applicant attended at the mediation. On 24 August 1994 a Memorandum of Mediation (the memorandum) was executed whereby it was agreed by representatives of the parties that an agreement in principle contained in the memorandum be referred to the respective Council, Board, Cabinet and traditional owners for approval and ratification and that the respondent would advise the other parties to the memorandum in writing by not later than 11 September 1994 as to whether or not the traditional owners and other affected Aboriginals approved the agreement. The respondent did not approve or ratify the memorandum and is continuing to prosecute the Ranger litigation. The applicant and the respondent are in dispute concerning a number of issues including whether or not the respondent should continue to prosecute the Ranger litigation. The applicant is not in favour of proceeding and asserts that the respondent cannot lawfully proceed without first being satisfied as to the matters referred to in s 23(3) of the Land Rights Act. The respondent says that it is not necessary to apply the processes of s 23(3) to the question of whether to continue the litigation. By letter dated 23 November 1994 the director of the respondent wrote to the applicant's solicitors stating, inter alia: I remain committed to resolution of the traditional owners' concerns and have placed a hold on the distribution of any royalty - equivalent sums arising from the Ranger project until after the dispute between the traditional owners and the Association is considered at a general meeting of the Association - which I understand is to be held very soon - and a further meeting of traditional Aboriginal owners is held. It is imperative that the Gagudju Association's membership become aware of this situation as soon as possible and at the latest at the next general meeting of the Association. At a meeting of the respondent held at Katherine on 8 December 1994 the respondent resolved: That distribution of statutory royalty equivalent payments arising from the Ranger Uranium Mine and payments under the related mining agreement which have to date been paid to the Gagudju Association be withheld until: The Association agrees in writing to and fully co-operates to the satisfaction of the Director and the Executive Members with the undertaking of a full review of the Association (as requested by the Mirrar Kundjey'mi and as proposed in earlier NLC correspondence to the Association). And, if the Association does not agree and co-operate, until the next Full Land Council meeting. Neither at the date of the filing of the application in this proceeding nor at any time up to and including the hearing of the respondent's motion on 10 March 1995 was the respondent in possession of any moneys representing royalty equivalents paid to it pursuant to s 63(4) of the Land Rights Act.

THE ISSUES At the time of the first directions hearing on 1 December 1994, it was contemplated that the application would be disposed of at the next hearing, then scheduled for 20 February 1995. As this was not possible the matter was stood over for further directions on 15 March 1995 at which time it was contemplated that a trial date would be fixed. In the events which happened the respondent filed its notice of motion on 6 March 1995 and the motion was heard on 10 March 1995. The hearing on 10 March 1995 was not intended to be, nor did the Court or the parties treat it as, a trial of the application. However, although paragraphs 1 and 2 of the respondent's motion of 6 March 1995 seek orders in relation to the striking out of the statement of claim presumably seeking to rely upon the Court's powers under O 11 r 16, the argument was not confined to a mere matter of pleading but rather went to the basis of the application itself. The Court has power under O 20 r 2, upon the grounds therein specified, to stay a proceeding or to dismiss it or any claim for relief in the proceeding and in this case, consistent with the Court's obligation under s 22 of the Federal Court Act, it is appropriate that such power be considered in conjunction with the power under O 11 r 16.

It will be convenient to treat as distinct issues the two major questions arising in this proceeding. The first question relates to the payment of money to the applicant pursuant to s 35(2) of the Land Rights Act (the royalty equivalents question) and the second relates to the applicant's desire to prevent the respondent continuing to prosecute the Ranger litigation (the consent question). a) The Royalty equivalents question. The case pleaded by the applicant can be summarised thus: The respondent holds such money as it receives pursuant to s 64(3) upon trust for the bodies to which or persons to whom that money is eventually to be paid in accordance with s 35 until the amount is so paid (s 35(8)). The applicant says that it is the only existing body to which money may be paid pursuant to s 35(2). On 23 November 1994 the respondent made a decision not to pay royalty equivalents to the applicant unless the applicant submitted itself to the respondent's requirements. By operation of ss 35(2) and (8) the respondent holds all royalty equivalents received by it upon trust for the applicant and the applicant is entitled to be paid same upon receipt by the respondent. To the extent that the applicant in paragraph 3 of the claim for relief in the application seeks declaratory relief as to the respondent's legal obligations under s 35(2) it would seem that the facts pleaded raise a justiciable issue which would be within the jurisdiction of the Supreme Court of the Northern Territory to adjudicate upon and thus by operation of s 4(1) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (NT), is a matter in respect of which the Federal Court may exercise jurisdiction. In the facts of the case however, it is common cause that at the time the proceeding was commenced the respondent did not hold any money by way of royalty equivalents to which the applicant could become entitled pursuant to s 35(2) of the Land Rights Act That being so it would be entirely inappropriate for the Court to restrain the respondent in the manner sought in paragraph 4 of the claim for relief in the application. The obligation of the respondent under s 35(2) arises if and when money is paid to it under s 64(3) and that obligation is to pay such money within 6 months of its receipt. The entitlement to the money is dependent upon the state of affairs existing at the relevant time. If it be the fact that the applicant is the only body entitled to payment then no doubt the whole of the money received will be payable. But it is conceivable that at any particular time there may be more than a single potential recipient of the money and that being so payment to the bodies entitled to receive same is dependent upon the respondent's determination of the appropriate proportions. There is nothing in the evidence to suggest that the respondent has failed to fulfil any obligation it has under s 35(2). The relief sought in paragraph 4, if granted, would bind the respondent to pay money to the applicant which the applicant may not be entitled to. In my opinion the claimed relief in paragraph 4 is vexatious and should be dismissed. b) The Consent Issue There are several questions which arise in relation to this issue. First there is the matter of the applicant's standing to seek relief; second, there is a question of law as to whether or not the respondent's conduct in continuing to prosecute the Ranger litigation amounts to it taking any action in a matter in connexion with land held by a Land Trust such that it is required to be satisfied that the requirements of subparagraphs (a) and (b) of s 23(3) of the Land Rights Act have been met; and third, there is the question of whether as a matter of fact the respondent is so satisfied. The third question will not arise if the applicant has no standing to seek the relief sought nor will it arise if the prosecution of the Ranger litigation does not amount to the taking of relevant action. The first 2 questions are capable of being resolved on the material presently before the Court. The declaratory relief sought would in my opinion be justiciable in the Supreme Court of the Northern Territory upon an application properly brought and would accordingly be a matter in which the Federal Court may exercise jurisdiction. From the pleading it appears that the applicant seeks declaratory and injunctive relief based upon what it asserts to be the proper construction of s 23(3). In my opinion the applicant does have the standing to seek the relief sought in paragraph 1 of the application. Although it is not a party to the Ranger litigation it is a body which has a very direct interest in the outcome of the litigation being a body (it says the only body) having a potential interest in the distribution of royalty equivalents which may be paid to the respondent in respect of the mining operations carried on pursuant to the agreement which the respondent seeks to have set aside. Whilst it is the traditional owners of the land whose consent to the taking of action is required, the applicant can properly be described as an "Aboriginal ... group that may be affected by the proposed action" and thus a body entitled to be consulted and to express its view to the respondent (s 23(3)(b)). The applicant does not challenge the competence of the respondent's action in commencing the Ranger litigation; the complaint is that following mediation, the respondent did not ratify the agreement in principle arrived at in the mediation and has continued to prosecute the action. The question which requires resolution is whether the failure of the respondent to ratify the memorandum and the respondent's subsequent conduct in continuing to prosecute the Ranger litigation amounts to "action" of the type to which s 23(3) relates.

There can be no doubt that the respondent's conduct in commencing the Ranger litigation in 1985 was action in connexion with the relevant land to which the provisions of s 23(3) applied. The object of the proceedings is to have rescinded and declared void an agreement with the Commonwealth and others which relates to the use for mining operations of Aboriginal land within its area. On any understanding of s 23(3), to institute proceedings of that type amounts to the taking of action in a matter in connexion with the land. But having reached the required degree of satisfaction in 1985 and having commenced the proceedings and then prosecuted them for nearly a decade, one may reasonably ask whether s 23(3) should apply to every successive step undertaken in the pursuit of the proceedings. The logical answer must be that the authority which the respondent had to commence the proceedings after being satisfied that the requirements of paragraphs (a) and (b) of s 23(3) had been met extends to the taking of all necessary steps to pursue the proceedings to their finality. It may well be that any decision to compromise the proceedings would amount to another type of action in connexion with the land which would require the prior consent of the traditional owners and the opportunity for affected communities and groups to express their views, but that case is not this case. The respondent has not sought to compromise the proceedings but rather to pursue them to finality.

As a matter of construction of s 23(3), the further prosecution of the Ranger litigation does not involve the respondent in taking any action of the type contemplated by s 23(3). In those circumstances, the facts pleaded by the applicant in relation to this aspect of the proceedings do not establish the basis of a reasonable cause of action to found the declaratory and injunctive relief sought. It is therefore appropriate that the claim for relief sought in paragraphs 1 and 2 of the application be dismissed as disclosing no reasonable cause of action and that such part of the statement of claim as relates to the consent issue be struck out. CONCLUSION The Order of the Court will be that: 1. The claims to relief sought in paragraphs 1, 2 and 4 of the application be dismissed. 2. Paragraphs 14 to 19 (inclusive) 21 and 22(a) of the statement of claim be struck out. I will hear the parties as to any other orders that may be appropriate and in relation to directions for the further conduct of the proceeding insofar as it relates to the relief sought in paragraph 3 of the application. For those purposes the matter will be adjourned to Friday 21 April 1995 at 9.30am. I certify that this and the preceding 21 pages are a true copy of the Reasons for Judgment of the Honourable Justice Olney

Place: Melbourne Judgment: 13 April 1995. Appearances: Mr J.L. Sher QC and Mr R. Blowes (instructed by Brett I. Midena) appeared for the respondent. Mr W. Sofronoff QC and Mr T. Matthews (instructed by Barwicks) appeared for the applicant.