Hicks v Aboriginal and Torres Strait Islander Commission

Federal Court of Australia|2000-10-13|Before: Carr J, French J

Introduction 1 This is an application for judicial review of a decision of the Aboriginal and Torres Strait Islander Commission (ATSIC) to refuse direct funding to a group of people which has applied for a native title determination in the West Pilbara region. The application overlaps substantially with another by the Ngaluma and Yinjibandi People who were represented by the Aboriginal Legal Service of Western Australia (ALS) which was, until 1 July 2000, the representative body for the Pilbara area under the Native Title Act 1993 (Cth). The ALS having, on 16 September 1999, refused funding to the applicants they challenged that decision in this Court before Carr J on grounds including reasonable apprehension of bias having regard to the commitment of the ALS to the Ngaluma Yinjibandi claim. Prior to the resolution of those proceedings, the applicants also applied for direct funding from ATSIC under the Aboriginal and Torres Strait Islander Commission Act 1989. That application was refused on 20 April 2000 pending the resolution of the proceedings before Carr J. That refusal is the subject of the present application for judicial review. In the meantime, on 28 April 2000, Carr J delivered judgment setting aside the decision of the ALS on grounds of reasonable apprehension of bias and requiring it to reconsider the issue according to law. 2 Before the ALS made a decision pursuant to that order, it ceased to be a Native Title Representative Body. The cessation of its status as such took effect, by operation of the Native Title Amendment Act 1998, on 1 July 2000. The Commonwealth Minister for Aboriginal and Torres Strait Islander Affairs declined to recognise the ALS under the amended Native Title Act as a representative body for the Pilbara area. It thus ceased to have the statutory function of providing assistance with native title determination applications as provided for under the Native Title Act 1993. 3 Its assertion of its lack of capacity to further consider the applicants' request for assistance is the subject of separate review proceedings, judgment on which is also delivered today - Hicks v Aboriginal Legal Service of Western Australia (Inc) [2000] FCA 1448. In the meantime, however, the applicants have pursued these proceedings seeking judicial review of the refusal by ATSIC to entertain their application for direct funding. The decision under review is that given prior to the decision of Carr J.

Factual Background 4 On 9 July 1998, Wilfred Hicks and others on behalf of the Wong-goo-tt-oo Group applied to the National Native Title Tribunal for a native title determination under the Native Title Act. By virtue of amendments to the Act, which came into effect on 30 September 1998, the application thereafter became a proceeding in the Federal Court. That matter, in common with other overlapping claims, is presently part heard before a judge of this Court. 5 The ALS was, until 1 July 2000, a native title representative body determined as such by the Minister under s 202 of the Native Title Act. On 28 August 1999, Kitto & Kitto, solicitors acting for the applicants, wrote to the ALS seeking funding of $35,000 for their clients to obtain legal advice. On 5 May 1999, the ALS replied that it could not make the grant because its Native Title Policy prevented it from funding private practitioners on native title matters. The solicitors responded asking the ALS whether it would act for their clients. On 1 June 1999, the ALS replied that it would act for the applicants but that such representation would not be separate from the representation of the Ngaluma and Yinjibandi Group, which it was representing in respect of a claim substantially overlapping the applicants' claim and which was also part heard. On 24 June 1999, Mr Hicks and one of the other applicants, Mr Douglas, applied to ATSIC for funding, estimated at $665,000, for legal representation and other costs related to the conduct of their claim. ATSIC wrote to the ALS on 8 September 1999 asking it to review its decisions on the matter of support to the applicants. On the following day the ALS advised Kitto & Kitto of ATSIC's request and invited any additional submissions. On 16 September 1999, the ALS decided not to grant the funding as requested for the conduct of a separate native title application by the Wong-goo-tt-oo Group. 6 The applicants challenged the ALS decision in the Federal Court pursuant to the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act). The application was out of time but an extension of time was granted. Among the grounds of review was an allegation of reasonable apprehension of bias on the part of the ALS. Carr J concluded that the decision under challenge was vitiated on that ground and should be set aside. This was on the basis that given the duties which the principal legal officer of the ALS and in-house counsel owed professionally to the Ngaluma Yinjibandi Group "… a fair minded lay observer with knowledge of the material objective facts might entertain a reasonable apprehension that [principal legal officer] might not bring an impartial and unprejudiced mind to the decision under challenge". Such an observer might reasonably consider that the two lawyers were too closely identified with the interests of the Ngaluma Yinjibandi Group. His Honour concluded that it would be reasonable for the ALS to brief an independent barrister to assess the legal merit of the claim being made by Mr Hicks and his fellow applicants in the native title application. An opinion could be obtained from an independent barrister or, alternatively, from an interstate equivalent of the ALS - Hicks v Aboriginal Legal Service of Western Australia (Inc) (2000) 98 FCR 435. 7 The applicants had also sued ATSIC in the same proceedings in respect of a decision made on 16 December 1999 in which ATSIC declined their request to it for funding. The stated reasons for refusal at that time were that: 1. The application does not qualify for special circumstances or exceptional circumstances as required by the ATSIC Policy and Decision-Making Principles. 2. The Native Title Representative Body (NTRB) concerned has reviewed a decision on an application from the claimants and ruled that the application had insufficient legal merit to assist it with separate funding, although offers of assistance were made to assist the group to represent their interests. 3. The application does not demonstrate sufficient merit or priority such that ATSIC would fund the application taking into account its policy of providing funding through NTRBs. 4. Funding is not likely to be available. The applicants and ATSIC nevertheless agreed that the claims for relief against ATSIC in the Federal Court brought in conjunction with the application in relation to the ALS decision should not be proceeded with on the basis that ATSIC would review its decision of 16 December 1999. 8 On 11 February 2000, orders were made by consent in the proceedings before Carr J as between the applicants and ATSIC in the following terms: "1. The decision of John Eldridge, General Manager, Social and Cultural Division of the Aboriginal and Torres Strait Islander Commission (ATSIC) made on 16 December 1999 as the delegate of ATSIC (the ATSIC decision) declining the Applicant's request for funding (the Applicant's request to ATSIC) to assist them in their application for a native title determination being heard by the Federal Court in matter numbers WAG6017 of 1996, part WAG127 of 1997 and part WAG6256 of 1998 (the Federal Court proceedings) be referred back to the First Respondent for further consideration. 2. The proceedings against the First Respondent in the Federal Court be otherwise dismissed. 3. There be no order as to costs between the Applicants and the First Respondent." On 20 April 2000, ATSIC advised the applicants' solicitors that it declined to fund them. It provided a statement of reasons with its letter of that date. The statement of reasons was signed by Mark Sullivan, Chief Executive Officer of ATSIC. 9 On 7 May 2000, the applicants' solicitors advised ATSIC of the decision of Carr J, given on 28 April 2000 and asked ATSIC to reconsider its position and its decision of 20 April 2000. Notwithstanding requests to do so, ATSIC did not reply to the letter from the applicants' solicitors. 10 On 16 June 2000, the applicants filed an application for an order to review the ATSIC decision dated 20 April 2000. They have not sought review in respect of the subsequent failure of ATSIC to grant their application. It was necessary for them to seek an extension of time pursuant to s 11(1)(c) of the Act to enable the application for review of the decision of 20 April to be made. The extension was opposed on the basis that relief would be futile and that the applicants have an alternative remedy by way of application to the relevant native title representative body. The grounds of opposition to the extension of time go to the merits of the application and the exercise of the discretion to grant relief. Given the particular circumstances of this case, including the fact that the applicants were awaiting a response by the ALS pursuant to its duty to reconsider its decision under the order made by Carr J, I think it reasonable to extend time as requested. There is no indication from ATSIC of any basis upon which it could be said to be prejudiced by reason of the delay in instituting these proceedings. The extension of time will be granted to enable the application to be considered on its merits.

Statutory Framework 11 The Aboriginal and Torres Strait Islander Commission Act 1989 (ATSIC Act) is described in its long title as: "An Act to establish an Aboriginal and Torres Strait Islander Commission, a Torres Strait Regional Authority, an Indigenous Land Corporation and an Aboriginal and Torres Strait Islander Commercial Development Corporation, and for related purposes" 12 Part 2 of the Act deals with the Aboriginal and Torres Strait Islander Commission which is established by s 6 as a body corporate. Its functions, defined in s 7 of the Act, include: "(a) to formulate and implement programs for Aboriginal persons and Torres Strait Islanders; . . . (d) to assist, advise and co-operate with Aboriginal and Torres Strait Islander communities, organisations and individuals at national, State, Territory and regional levels; . . . (j) such other functions as are conferred on the Commission by this Act or any other Act; . . . (o) to do anything else that is incidental or conducive to the performance of any of the preceding functions." 13 Section 14 provides for the making of grants and loans by the Commission: "14(1) The Commission may: (a) make a grant of money; or (b) grant an interest in land; or (c) grant an interest in personal property; or (d) make a loan of money (whether secured or unsecured); to: (e) an individual; or (f) a body corporate (other than a Regional Council or the TSRA); or (g) an unincorporated body; for the purpose of furthering the social, economic or cultural development of Aboriginal persons or Torres Strait Islanders. (2) A grant or loan is subject to such terms and conditions as the Commission determines. (3) The Commission may acquire by agreement an interest in land, or personal property, for the purpose of making a grant under this section." 14 Section 22 provides for the formulation of decision-making principles about grants, loans and guarantees thus: "22(1)The Commission must formulate written principles (decision-making principles), not inconsistent with the objects of this Act, about: (a) making grants and loans under section 14 or 16; and (b) giving guarantees under section 15; and (c) subscribing for, or otherwise acquiring, shares or stock under section 17. (2) Subject to section 74, the Commission must perform its functions and exercise its powers under sections 14, 15, 16 and 17 in accordance with applicable provisions of the decision-making principles in force from time to time. (3) Without limiting the operation of the Freedom of Information Act 1982, the Chief Executive Officer must ensure that copies of the decision-making principles as in force from time to time are: (a) given to each Regional Council; and (b) available for inspection and purchase at each of the Commission's offices. (4) The Chief Executive Officer must cause notice of the making of decision-making principles to be published in the Gazette." Section 46 provides for the appointment of a Chief Executive Officer of the Commission. This is a ministerial appointment. The Chief Executive Officer manages the day to day administration of the Commission.

Decision-making Principles 15 The relevant decision-making principles, made pursuant to s 22 of the Act and relied upon by the decision-maker in this case, are in the following terms: "2.1 The Commission will not exercise its powers under sections 14, 15 or 16 unless: . . . b. in the case of a request for grant funding, the applicant is a body corporate, a State or Territory Government or a Commonwealth/State/Territory authority (including local government bodies), or an individual or unincorporated body applying under the Indigenous Business Incentive Program, although the Commission will consider on their merits, and in special circumstances approve, requests for grant funding from individuals and unincorporated bodies under other programs; . . . 2.5 In making decisions under sections 14, 15 and 16 the Commission will: a. apply Commission policy as set out in Program Statements and the Program Policy and Guidelines Statements;"

Program Statements and Program Policy and Guidelines Statement 16 The relevant Program Statements and Program Policy and Guideline Statements applicable to native title grants are designated as: (a) The Native Title Program Statement; (b) The Native Title Program Policy and Guideline Statements 1999-2000; (c) The Native Title Policy Framework which is an attachment to the Native Title Program Policy and Guideline Statements 17 ATSIC's Program Policy and Guideline Statements 1999-2000 set out in paragraph 5: "5. It is ATSIC policy that: . funding for Native Title is provided through one national program (with decisions being made by the Board or its delegate following consultation with the elected arm); . assistance for native title claims and other processes under the NT Act is channelled through NTRBs. In exceptional circumstances, submissions for funding from specific claimant groups or other bodies will be considered after consultation with the relevant NTRB, and subject to any review process in the NT Act. . funding for native title purposes is quarantined from ATSIC's global allocation and strictly earmarked for those purposes." The Native Title Policy Framework provides, in relation to direct funding, as follows: "Direct funding ATSIC will consider direct funding only in exceptional circumstances and only if the claimant has already sought and been denied funding by an NTRB and the original decision confirmed through the NTRB's internal review processes. If requested, NTRBs shall advise ATSIC of any decision made to decline assistance to a native title claimant or group, and provide reasons for such refusal. NTRBs will be required to participate in any independent review of that decision by ATSIC. In the event that any independent review recommends assistance ATSIC will either: a) direct the NTRB to assist the applicant out of the NTRB's existing allocation; b) provide additional funding to the NTRB to assist the applicant, or c) provide funding direct to the applicant if all other processes have failed."

Reasons for the ATSIC Decision 18 In his reasons for decision under the heading "Findings on Material Questions of Fact" the Chief Executive Officer said that he was not satisfied that the merits of the application were sufficient to justify a grant. He was not satisfied that special circumstances existed under subclause 2.1(b) of ATSIC's Decision Making Principles for making a grant to an unincorporated body. Nor was he satisfied that exceptional circumstances existed for direct funding of the native title claim under paragraph 5 of ATSIC's Program Policy and Guideline Statements 1999-2000 and ATSIC's Native Title Policy Framework. At the time of his decision the relevant cost centre in ATSIC's central office had available $175,333 in unallocated funds. 19 In elaboration Mr Sullivan noted in section 6 of the reasons that no argument had been advanced for the making of the grant to the applicants as an unincorporated group. He gave particular weight to their difficulties in obtaining a valid decision from the ALS and the conflict of interest arguments they advanced in relation to that body, as well as the material provided by them relating to the merits of their claim. They had said in their final submission to ATSIC that they had been informed by another officer of ATSIC that it was not necessary for them to be incorporated. In addition, they had told ATSIC officers that they were ready to settle with them a satisfactory financial arrangement for the holding of the funds by their solicitors and their disbursement and the accountability for any financial grant. None of these facts however constituted special circumstances warranting the grant of funds to an unincorporated group. 20 Mr Sullivan then considered, under the Native Title Policy Framework, whether, in any event, there were exceptional circumstances for funding to be provided other than through a representative body. Under section 7 of his reasons he decided that at that time the applicants' difficulties with the ALS and their contentions that its decision was legally flawed (Carr J not having given judgment at this time) did not in themselves constitute exceptional circumstances "…for the reason that the current Federal Court challenge to the ALS WA decision has not yet been judicially determined". In effect the applicants were still actively seeking funding from the relevant Native Title Representative Body and the possibility of funding from that source was still therefore very much alive. Mr Sullivan said: "7.4 I have decided that since the possibility of a ALS WA funding is still very much alive and is being actively pursued by the applicants the circumstances in which ATSIC would ordinarily consider direct funding have not yet arrived. The appropriate time for ATSIC to make a direct grant to the Wong-goo-tt-oo would be after the Wong-goo-tt-oo challenge to the ALS WA decision has been determined and either the challenge is dismissed (so the ALS WA decision stands) or the challenge succeeds and the ALS WA makes a valid decision again refusing assistance." 21 The reasons proceeded in section 8 to a consideration whether the basis of the refusal by the ALS to provide funding constituted exceptional circumstances. The words "special" and "exceptional" seem to have been used interchangeably in this section of the reasons. The circumstances referred to included "alleged legal errors in the ALS decision and an alleged conflict of interest". Mr Sullivan summarised assertions contained in the ALS reasons for decision conveyed to the applicants' solicitors on 16 September 1999. They related to the limited scope of the material sent to the ALS, the fact that the application was in competition with that of the Ngaluma Yinjibandi Peoples and, importantly, the paucity of the evidence in support of the Wong-goo-tt-oo's proposition of separate identity as an estate group distinct from the Ngaluma Yinjibandi. Mr Sullivan observed that the assertions had not been rebutted or adequately explained by the Wong-goo-tt-oo. Reference was made to alleged gaps in the report of the anthropologist they relied upon. A subsequent letter from that anthropologist had not been made available to the ALS at the time of its decision. In paragraphs 8.3 and 8.4 of his reasons Mr Sullivan said: "8.3 I reached the conclusion that exceptional circumstances do not exist for the direct funding of the Wong-goo-tt-oo claim under paragraph 7.2(a) above because: (a) the Wong-goo-tt-oo had not furnished the ALS WA with a copy of the letter of Rory O'Connor dated 14 July 1999 and had not provided reason for not doing so; (b) the only material that the Wong-goo-tt-oo produced to ATSIC to rebut or adequately explain assertions contained in the ALS WA reasons for decision referred to in paragraph 8.1 above is the full anthropological report of Rory O'Connor ("the Wong-goo-tt-oo anthropological report"); (c) for the reasons set out above I did not consider that the alleged legal errors in the ALS WA decision constituted sufficient reason for a direct grant by ATSIC. 8.4 I did not consider the alleged conflict of interest established exceptional circumstances for the reason that if the Wong-goo-tt-oo claim against the ALS WA is upheld in the Federal Court, then the ALS WA will be required to reconsider its decision in compliance with the order of the court." 22 Under the heading "The Strength of the Wong-goo-tt-oo case" in section 9 of his reasons, Mr Sullivan somewhat confusingly had regard both to the claims that individual members of the applicant group were impecunious and unable to represent themselves and also material supporting their contention to be a distinct estate group. While accepting that individual members of the applicant group could not represent themselves in complex native title proceedings in the Federal Court he did not regard this as constituting exceptional circumstances either alone or in combination with other factors. It would be rare for native title claimants to have the capacity to represent themselves in such proceedings. In any event he was not satisfied that the Wong-goo-tt-oo were entirely impecunious. He referred to a sum of $250,000 said to have been received by the Wong-goo-tt-oo from Robe River Iron Associates which receipt was not disputed. Notwithstanding the contention by Mr Cane Hicks of the applicant group that the funds were for the betterment of the community, Mr Sullivan was not satisfied that they were not available for the native title claim. 23 Mr Sullivan did not have difficulty with the view that the Wong-goo-tt-oo applicants would have a reasonable prospect of demonstrating to a court that they have native title rights and interests in the claim area. This appeared to be common ground between the Wong-goo-tt-oo and the ALS. If they were part of the Ngaluma Yinjibandi community he could see no reason why they could not adequately be represented by the ALS as part of that claim (par 9.4). He referred to the reasons for decision of the Full Federal Court in Ward v Western Australia (2000) 170 ALR 159 where the Court observed that the status of a person claiming to be a member of a community entitled to the enjoyment of native title rights and interests would be a matter for resolution between the registered native title body corporate and that person at a stage following the Court's determination. The Full Court had stated that it was not necessary for a trial judge to make findings about the ancestry of each of the representative applicants, the membership of particular estate groups or their continuing connection with particular parts of the determination area. Mr Sullivan quoted the observation of the Full Court that: "Matters of detail as to the identity and rights of particular members of that community are matters to be determined with the registered native title body corporate." He then went on to say at 9.6: "My view is that is that (sic) if the dispute between members of the Wong-goo-tt-oo and the Ngarluma and Yinjibarndi peoples is of the type that the Federal Court contemplated being resolved by a native title body corporate then it would be inappropriate to spend scarce native title funds to support litigation of the dispute in the Federal Court as part of an application for a native title determination." On the other hand he said in paragraph 9.7 that if the Wong-goo-tt-oo were in truth distinct from Ngaluma Yinjibandi and their claim in conflict with its claim the ALS WA would not be able to represent it. Mr Sullivan referred to the ALS contention that the Wong-goo-tt-oo is a sub-group of the Ngaluma Yinjibandi. He said: "…Ultimately the conflicting views must be determined by the court. It is not for me to reach any conclusion on that issue and I do not seek to do so. What I must however consider is whether in all the circumstances financial assistance should be provided to the Wong-goo-tt-oo to assist them to pursue their claims." He referred to the registration of the Wong-goo-tt-oo claim as a positive factor in assessing its strength but not as decisive. He had not been provided with any information beyond the assertions of the Wong-goo-tt-oo, their lawyers and anthropologists to show that their native title rights were held as members of a distinct and identifiable group or estate group separate from the Ngaluma Yinjibandi community. There was no evidence that anyone else, in particular the Ngaluma Yinjibandi, recognised them as a separate group. He referred to material indicating that Ngaluma Yinjibandi genealogies show a large number of the Wong-goo-tt-oo and the Ngaluma and Yinjibandi claimants to be descended from a person called Kanyin. He referred to the opinions of the Wong-goo-tt-oo anthropologist, Rory O'Connor, but was not prepared to give his report substantial weight "in the absence of an explanation as to how Rory O'Connor can be an expert for two groups…". Mr O'Connor was said also to have worked for competing claimants called Yaburara /Mardhudunera, approximately three quarters of whose claim overlapped about a half of the Wong-goo-tt-oo claim area. 24 At paragraph 10 of his reasons Mr Sullivan turned to consider other funding that might be available to the applicants on the basis of common representation for them and the Ngaluma Yinjibandi applicants. He said: "As the Wong-goo-tt-oo have not explained either that their estate group is recognised by the native title holders and in particular members of the Ngarluma/Yinjibarndi community or why such recognition is not given, I am not satisfied that the offer of the ALS WA is unreasonable." (sic) 25 At paragraph 11 he dealt with a claim by the applicants' solicitors that the extended families of the Wong-goo-tt-oo comprise 1,000 or more members. About 150 names of Aboriginal persons, including deceased ancestors, were listed in Wong-goo-tt-oo genealogies. Although it was apparent that members of the Wong-goo-tt-oo had been omitted from the genealogies Mr Sullivan was not prepared to accept that the group comprised "1000 or more members". 26 At paragraph 12, Mr Sullivan referred to consultation he had undertaken with elected elements of ATSIC, specifically the Commissioner for the Geraldton zone and the Chairperson of the Ngarda Ngarli Yarndu Regional Council. While the Commissioner had supported a limited grant of $20,000 to enable the Wong-goo-tt-oo to appear before the Court and state their case, the Chairperson of the Regional Council did not support the application for a grant as sought by the Wong-goo-tt-oo.

Grounds for Review 27 There were some thirteen grounds (numbered 5 to 17) upon which judicial review was sought. Two of these (5 and 12) relating to alleged denial of natural justice and a legitimate expectation of financial assistance were abandoned at the hearing. The remaining grounds, which were not expressed with great clarity, related to: 1. Rigid application of policy and failure to give genuine consideration to the merits of the applicants' native title claim and to the conflict of interest on the part of the ALS (Ground 6). 2. Error of law arising from attempts by ATSIC to pre-determine which of the applicants in the Federal Court native title proceedings had a better claim (Ground 7). 3. ALS taking into account "errors of fact" (Ground 8). 4. Unreasonable exercise of power (Ground 9). 5. Abuse of power (Ground 10). 6. Uncertainty (Ground 11). 7. Taking into account irrelevant considerations (Ground 13). 8. Acting under dictation from the ALS (Ground 14). 9. Failure to take into account relevant considerations being the apparent conflict of interests on the part of the ALS (Ground 15). 10. A want of proportionality in the decision (Ground 16). 11. Failure to exercise power and abuse of power (Ground 12). The applicants' argument focussed on the reasons of the respondent on the question whether exceptional circumstances existed justifying direct funding to an applicant other than through an NTRB. Various of the grounds were grouped together in presentation of the argument. I propose to deal with them as so presented.

Conflict of Interest as an Exceptional Circumstance 28 The requirement upon an applicant for a native title determination to demonstrate exceptional circumstances in order to attract direct funding from ATSIC is not statutory. It is contained in internal policy guidelines adopted by ATSIC. These, however, are incorporated by reference in the decision-making principles and by virtue of s 22(2) the Commission must perform its functions and exercise its powers under s 14 in accordance with those principles. 29 Senior counsel for the applicants identified as arising under Grounds 9, 13 and 15 "…the failure of the decision-maker to identify the situation of conflict as an exceptional circumstance". 30 At the time the ATSIC decision was made to refuse funding, no decision had been given by Carr J. There had in effect been no finding of conflict of interest vitiating the ALS approach to the applicants' request for funding by it. The applicants nevertheless maintain that ATSIC was appraised of all the relevant facts necessary to conclude that there was a conflict of interest. 31 The written submissions allege inconsistency of the reasoning of the ATSIC decision-maker in relation to the question whether there were exceptional circumstances in the case. So it was pointed out, correctly, that the decision-maker concluded that because the Federal Court decision was pending, the contention of conflict of interest on the part of the ALS did not reflect any exceptional reasons. On this logic it was suggested that the decision-maker should have waited until the outcome of the Federal Court decision before making his own. Whether that might have been a prudent course or not, the failure to follow it does not give rise to an error of law. Infelicities of language or logic in the reasons of the decision-maker on this issue disclose no error of law. 32 The statement contained in the decision-maker's reasons that the pendency of the Federal Court decision negatived the contention of exceptional circumstances based on conflict of interest in the representative body is unobjectionable. The decision-maker was entitled to take the view that the existence of the circumstances said to be exceptional was a matter under consideration and to be determined by the Court and that the answer to the question whether those circumstances existed would be likely to emerge as a finding by the Court. The decision-maker appears to have treated the unresolved Federal Court proceedings as leaving open the question of the ultimate outcome of the application to the ALS. 33 In my opinion whether any circumstances capable of being described as exceptional existed at the time of the ATSIC decision, the decision-maker was perfectly entitled, as a matter of discretion, to refuse funding pending the Federal Court decision. He said in this respect, at paragraph 7.4: "I have decided that since the possibility of a ALS WA (sic) funding is still very much alive and is being actively pursued by the applicants the circumstances in which ATSIC would ordinarily consider direct funding have not yet arrived." He rightly pointed out at 7.5: "If the Federal Court upholds the Wong-goo-tt-oo claims relating to invalidity and conflict of interest and grants the relief sought by the Wong-goo-tt-oo, then the ALS WA will be required to reconsider its decision according to law. If on the other hand the Federal Court were to dismiss the challenge, it would be necessary to consider the Federal Court's reasons. For example, if the Federal Court rejected the conflict of interest arguments submitted in support of the invalidity of the ALS WA decision then the conflict of interest claims would no longer support an exceptional circumstances claim." That, in my opinion, was perfectly valid reasoning and sufficient to justify the rejection of the application for funding at that time. A refusal at that time would not prevent the applicants from renewing their application subsequently in light of the Court's decision. ATSIC was not to be treated as functus officio in respect of all future applications for funding by these applicants relating to their native title determination application because this application for funding had been refused in particular circumstances. I note that, as appears from the application, and was made quite clear in oral submissions by senior counsel for the applicant (T 16), the only decision under challenge in these proceedings is the pre-judgment decision of 20 April 2000. 34 Senior counsel for the applicants seemed to argue at one point that ATSIC's power to make grants under s 14 of its Act was independent of the exercise by the ALS (WA) of its power to fund a native title claim. But plainly the existence of a possible alternative source of funding, being a body with specific statutory responsibility in that regard under the Native Title Act, was a matter which ATSIC was entitled to take into account in declining to make a grant under s 14.

Other Bases for the Decision and other Grounds for Review 35 In my opinion Mr Sullivan's reasons went further than was necessary in supporting his rejection of the application for direct funding. He was entitled to rest entirely upon the ground that the process of application to the ALS would not be exhausted until the Federal Court proceedings were resolved. And, indeed, his written reasons in paragraph 7 and particularly 7.4, make it plain that he had arrived at the conclusion that funding should be refused having regard to the pending Federal Court proceedings. Nevertheless he proceeded to consider the applicants' contention on which their claim was based that the Wong-goo-tt-oo group constituted a separate indigenous estate group with discrete interests and identified by a particular line of descent. In the written submissions it was said that he had adopted the ALS view ostensibly based on the reasoning of the Full Federal Court in Ward v State of Western Australia to the effect that native title in the Pilbara region should relevantly be regarded as held by a single community. 36 The applicants argued that Mr Sullivan had adopted the ALS view of the merits of the Wong-goo-tt-oo claim. The way it was put in the written submissions was that he had "adopted the ALS view". This was said to have been based upon the decision of the Full Court in Ward reflected in the passages mentioned earlier. The Full Court in Ward was said not to have been laying down a rigid model of a single communal native title held by an over-arching community and intended to apply to all native title claims. Such a position did not pay sufficient regard to the proposition of Brennan J in Mabo v Queensland (No 2) (1992) 175 CLR 1 at 61-62 that native title may be held by a clan or a group. This primary legal misconception had led, it was said, to an incorrect evaluation of factual matters. The applicants were said to have raised a prima facie and arguable case to be determined in law and fact by the Federal Court. Mr Sullivan, it was submitted, had adopted the "preconceived adversarial legal and anthropological contentions of the ALS as solicitors for a contending claimant". 37 In section 8 of his reasons, Mr Sullivan considered whether the basis upon which the ALS had refused funding constituted exceptional circumstances. He had already dealt with the conflict issue in section 7. The material before the ALS and the want of rebuttal or adequate explanation thereof did not give rise to exceptional circumstances. This was a view he was entitled to take. That is to say he was entitled to look at the basis for the representative body's refusal of funding in deciding whether there were some exceptional circumstances warranting the grant of direct funding from ATSIC. 38 Mr Sullivan was also entitled to have regard to the strength of the applicants' case as it appeared from the material before him. No doubt this is an exercise which has its dangers. However when decisions have to be made by ATSIC as a funding agency with limited resources on applications involving a departure from the usual process of funding through representative bodies, the apparent strength of the claim for which direct funding is sought will be a relevant consideration, particularly given the limited funds available for that purpose. Indeed, the way in which he dealt with the matter in section 9 was to consider alternative hypotheses about the claim. On the first hypothesis, the Wong-goo-tt-oo group was an element of the Ngaluma and Yinjibandi Peoples and could be represented by the ALS jointly with Ngaluma Yinjibandi on the basis that any differences would be resolved through the prescribed body corporate if native title were determined. On the other hypothesis, if the Wong-goo-tt-oo were in competition with the Ngaluma Yinjibandi they could not be represented by the ALS. The latter hypothesis however, was one to which he did not give great weight having regard to his discounting of the anthropological material and his consideration of other material before him. It was not his task to resolve the conflicting contentions, that was a matter for the Court and he recognised that. His task was to decide the question of finance. 39 The applicants criticised Mr Sullivan's approach to the question of the impecuniosity. Exceptional circumstances did not require the applicants to be impecunious. To require moneys available for the general community benefit of the Wong-goo-tt-oo to be exhausted on assistance for a legal claim was said to be manifestly unreasonable, especially given the fact that the decision-maker had ignored the fact that a similar amount was received by the Ngaluma Yinjibandi Peoples from the same party and that they had received other compensation moneys. While impecuniosity may not be necessary to the determination of an exceptional circumstance, it is plainly relevant to the question whether a grant of direct funding should be made. From the perspective of a decision-maker with limited funds subject to competing claims, the availability of other resources to the applicants seeking direct funding is a relevant consideration. 40 In relation to the strength of the Wong-goo-tt-oo case, it was said that Mr Sullivan had exhibited "…a steadfast determination to minimise and rationalise why, on the face of the evidence presented by the Wong-goo-tt-oo, the claim should be taken to be unsupportable". He was said to have misconceived his function as delegate of ATSIC in assessing whether there were exceptional circumstances "…by framing the issue as whether the Wong-goo-tt-oo should not be represented by the ALS WA rather than whether there is a reasonable basis for perceiving a conflict so that, in those exceptional circumstances, the Wong-goo-tt-oo should be entitled to separate representation and the requisite funds for the same". In this regard, it was submitted, s 14 of the ATSIC Act should be read beneficially facilitating the grant of assistance for those who have a genuine claim to being an identifiable and discrete group. In descending to detail and rejecting particular points the decision-maker had impliedly conceded that the claim was arguable. This was inherently an issue on which ATSIC should not have taken sides. 41 I do not discern in the decision-maker's reasons a concluded view on the merits of the applicants' case. Indeed he expressly disclaimed, at paragraph 9.8, that it was his function to reach any conclusion on the issue whether the Wong-goo-tt-oo are a community separate from the Ngaluma Yinjibandi. As he said: "What I must however consider is whether in all the circumstances financial assistance should be provided to the Wong-goo-tt-oo to assist them to pursue their claims." 42 Finally, there was a submission put about proportionality. The decision-maker, having recognised that the Wong-goo-tt-oo had an arguable claim to be a separate group, he treated the fact that the ALS was still prepared to provide representation for them jointly with the Ngaluma Yinjibandi as a basis for the refusal to grant assistance. To do so, it was submitted, was directly contrary to the whole basis of why separate assistance and representation was sought by the Wong-goo-tt-oo and therefore unreasonable. This was said to be manifestly absurd and should not have been taken into account. I am not satisfied, however, that his reasons are adequately or accurately characterised by this submission. In essence, what he was doing was putting on one side the readiness of the ALS to represent the Wong-goo-tt-oo as part of the Ngaluma Yinjibandi claim against the weakness of the Wong-goo-tt-oo contention to be a separate group. This was a matter which, for the purposes of a funding decision, he was entitled to have regard to. 43 It was said that over the period 1997 to 2000 ATSIC funded ALS to the extent of $2.66 million in respect of native claims in the West Pilbara region which were wholly or substantially allocated to the Ngaluma Yinjibandi claimants. ATSIC's national native title budget and funding allocation to Western Australia would enable reasonable funding assistance to be provided to the Wong-goo-tt-oo by way of an equitable distribution of ATSIC funds. Being aware that no funding was being made available through the ALS to the applicants, the decision of ATSIC not to provide assistance itself was entirely lacking in "proportionality" in the light of the funding available to ATSIC and that allocated to the ALS for maintaining the Ngaluma Yinjibandi claim. This was manifestly unreasonable and an abuse of the exercise of its discretionary power under s 14 of the ATSIC Act. 44 I do not accept the latter contention which, in my opinion, is subsumed within the views I have previously expressed on the other grounds. In any event even if one or other of the grounds for review were made out, I would have declined relief in my discretion having regard to the fact that the decision to refuse funding was taken properly in light of the fact that proceedings before the Federal Court in relation to the request to the ALS for funding were unresolved.

45 In my opinion this application should be dismissed with costs. I certify that the preceding forty five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate: Dated: 13 October 2000 Counsel for the Applicant: Mr RI Viner QC with Mr PW Johnston

Solicitor for the Respondent: Arthur Robinson & Hedderwicks

At a glance

Court

Decision date

Before

Source

Judgment (12 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (4)