Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal & Torres Strait Islander Affairs

Introduction 1 On or about 17 March 2000 the respondent ("the Minister") made a decision to refuse an application by the applicant ("the Pilbara Land Council"), made pursuant to s 203AB of the Native Title Act 1993 (Cth) ("the NTA"), for recognition as the representative body under the NTA for an area in the State of Western Australia known as the Pilbara invitation area. 2 The Pilbara Land Council applied under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") to quash or set aside the decision. It claims that a breach of the rules of natural justice occurred in connection with the making of the decision (s 5(1)(a)) alternatively, that the Minister engaged in conduct for the purpose of making the decision that involved a breach of the rules of natural justice (s 6(1)(a)). The breach of the rules of natural justice is said to have occurred as a result of the failure of the Minister or the Aboriginal and Torres Strait Islander Commission ("ATSIC"), which advised the Minister in relation to the decision, to give the Pilbara Land Council an opportunity to comment upon adverse material that was placed before the Minister in connection with the making of his decision. 3 The final hearing commenced on 27 June 2000. It became apparent that, under the NTA, the Minister was likely to make a decision on 30 June 2000 to recognise a representative body, other than the Pilbara Land Council, as the representative body for the Pilbara invitation area. Accordingly, unless a final order was made by the Court in respect of the matter prior to 30 June 2000 it was unlikely that the Court could grant effective relief to the Pilbara Land Council, even if it was entitled to quash or set aside the decision of the Minister not to recognise it as the representative body for the Pilbara invitation area. 4 Initially, the Pilbara Land Council relied upon a number of grounds to challenge the Minister's decision but ultimately it only pressed its claim that the decision, or the conduct leading to it, involved a breach of the rules of natural justice. 5 On 29 June 2000 I dismissed the application and announced that I would give reasons for my decision in due course. Background 6 The Pilbara Land Council was incorporated on 16 November 1982 under the Aboriginal Councils and Associations Act 1976 (Cth). On 1 March 1996 the then Minister, acting under s 202(1) of the NTA, determined that the Pilbara Land Council be a representative Aboriginal/Torres Strait Islander body ("a representative body") for an area aligned with the boundaries of the Port Hedland Town Council and the East Pilbara Shire to the extent of the Ngarda Ngulli Yarndu Regional ATSIC boundary ("the original Pilbara area"). The original Pilbara area is within the Pilbara invitation area. 7 At the time the Minister was empowered to determine that one or more bodies be a representative body in relation to an area (ss 202(1) and 202(2)). Section 202(4) of the NTA provided for a representative body to perform certain functions in its area in relation to native title matters arising under the NTA in respect of that area. 8 The Native Title Amendment Act 1998 (Cth) ("the 1998 amending Act") established a new regime under the NTA for representative bodies. During the transition period (30 October 1998 to 30 June 2000) representative bodies were required to perform their existing functions, as well as certain additional functions. The functions for that period, which were set out in s 202(4) (as amended by the 1998 amending Act), were as follows: "(a) facilitate the researching, preparation or making of applications, by individuals or groups from among Aboriginal peoples or Torres Strait Islanders, for determinations of native title or for compensation for acts affecting native title; (b) assist in the resolution of disagreements among such individuals or groups about the making of such applications; (c) assist such individuals or groups by representing them, if requested to do so, in negotiations and proceedings relating to: (i) the doing of acts affecting native title; or (ii) the provision of compensation in relation to such acts; or (iii) indigenous land use agreements or other agreements in relation to native title; or (iv) rights of access conferred under this Act or otherwise; or (v) any other matter relevant to the operation of this Act. (d) certify, in writing, applications for determinations of native title relating to areas of land or waters wholly or partly within the area in relation to which the representative body has been determined to be a representative body; (e) certify, in writing, applications for registration of indigenous land use agreements relating to areas of land or waters wholly or partly within the area in relation to which the representative body has been determined to be a representative body; (f) become a party to indigenous land use agreements." 9 At the conclusion of the transition period, the earlier representative body regime under the NTA was repealed and, as from 1 July 2000, the new representative body regime established under the 1998 amending Act commenced. Under the new regime only one representative body is to perform the functions set out in s 202(4) for each of the newly defined areas throughout Australia (s 203AD(4)). Thus, if a representative body was not recognised in respect of the new area it ceased to have any statutory role or functions under the NTA in respect of its area after 1 July 2000. 10 To prepare for the new regime, Division 2 of Part 11 of the NTA provided for the recognition, prior to the end of the transition period, of a representative body for each of the newly defined areas. During the transition period "eligible bodies" were to be invited by the Minister to apply for recognition as representative bodies under the new regime (s 203A(1)). Under s 203AA(3), if there were existing representative bodies in relation to an invitation area, invitations must, initially, only be made to each of those bodies although, in the result, only one representative body could be recognised for each area. 11 Under s 203AA(1), the Commonwealth Minister was required to issue invitations under s 203A to each of the eligible bodies as soon as practicable after the commencement of the transition period. If the existing representative bodies were unsuccessful in being recognised for the new invitation area, or did not apply for recognition, the Minister may invite other bodies, during the transition period, to apply for recognition in respect of that invitation area (s 203AA(4)). 12 Four representative bodies, including the Pilbara Land Council, received invitations as eligible bodies entitled to apply under s 203A(1) to be the recognised representative body in respect of the Pilbara invitation area. The invitation was sent to the Council on 14 May 1999. Each of the four bodies applied to the Minister under s 203AB for recognition as the representative body for the Pilbara invitation area. The Pilbara Land Council submitted its application under s 203AB on 13 August 1999. 13 Eligible bodies had to satisfy the Minister as to the matters set out in s 203AD(1), which provides that the Minister may only recognise a representative body for an invitation area if he is satisfied that: "(a) the body will satisfactorily represent persons who hold or may hold native title in the area; and (b) the body will be able to consult effectively with Aboriginal peoples and Torres Strait Islanders living in the area; and (c) if the body is already a representative body - the body satisfactorily performs its existing functions; and (d) the body would be able to perform satisfactorily the functions of a representative body." 14 Section 203AI provides for further matters to which the Minister must have regard in making a decision about recognition of the representative body. Those matters relate to whether the body's organisational structures and administrative processes will operate in a fair manner. Under s 203AI(2), without limiting the matters to which the Minister may have regard in assessing the fairness of the body's organisational structures and administrative processes, the Minister was required to have regard to the following criteria: "(a) the opportunities for the Aboriginal peoples or Torres Strait Islanders for whom it might act to participate in its processes; and (b) the level of consultation with them involved in its processes; and (c) its procedures for making decisions and for reviewing its decisions; and (d) its rules or requirements relating to the conduct of its executive officers; and (e) the nature of its management structures and management processes; and (f) its procedures for reporting back to persons who hold or who may hold native title in the area, and the Aboriginal peoples or Torres Strait Islanders living in the area." 15 In the event that the Minister decided to recognise an eligible body as the representative body for an invitation area, the recognition was to take effect from a date that commences after the transition period, that is, after 30 June 2000. If the Minister decided not to recognise an eligible body that had applied for recognition as the representative body for an area, the Minister was required to notify the body, in writing, of the decision and the reasons for the decision (s 203AD(5)). 16 It is implicit, if not explicit, in the scheme established under s 203AD, but particularly s 203AD(5), that if an eligible body that applied for recognition was not to be recognised the Minister would make a decision to that effect. Accordingly, the Minister's decision not to recognise the Pilbara Land Council is a decision under the NTA to which the ADJR Act applies: see ss 3, 5 and 6 of the ADJR Act. 17 In order to appreciate the natural justice issues arising in the present matter it is necessary to outline the decision making process that led to the Minister's decision to refuse the application of the Pilbara Land Council to be recognised as the representative body for the Pilbara invitation area. 18 A document entitled "Procedures Relating to Applications for Recognition as a Native Title Representative Body" was attached to the invitation to the Pilbara Land Council to apply for recognition as the representative body for the Pilbara invitation area. The document, which had been prepared by ATSIC, advised that although the decision on the application was to be made by the Minister, a process had been put in place for ATSIC to assess all applications and to advise the Minister in respect of those applications. The document outlined the processes that would be followed by ATSIC in assessing the applications. Those processes included the establishment of assessment teams to discuss the application with the applicant body. 19 ATSIC's management of the application and the assessment process was explained as follows: "How will ATSIC manage the Application and Assessment Process? Each applicant body will be asked to nominate an officer to be the contact point for ATSIC officers on matters concerning the application. ATSIC's Representative Bodies Section will also nominate a Case Officer to manage communications between ATSIC, the Minister and the representative body. These communications include: · Contacting the representative body about progress in preparing its application; · Answering questions the representative body may have about these procedures and, in particular, the information to be provided in the application; · Advising the applicant body of the timeframes for providing any further information after the application has been lodged; · Ensuring that all communications initiated by any of the parties is promptly received by the other; · Advising the applicant body of all arrangements concerning the assessment of the application, including the timeframe for visits by the national assessment team; · Advising the applicant body about any relevant information received through the assessment process that may be potentially adverse to the applicant body's case and allowing an opportunity for the applicant body to respond to this information; · Advising the Minister on the application." 20 On 21 July 1999 ATSIC wrote to the Pilbara Land Council setting out the steps it proposed to take in relation to the assessment of the Council's application for recognition as the representative body for the Pilbara invitation area. ATSIC stated that its assessment team, after examining and assessing the application, would make a field visit to the Council to discuss the application and examine and assess the material held by the Council, including material relating to its financial viability. The letter also stated that following the assessment process a "decision brief on each application", which attaches copies of the assessment team report, would be prepared for the Minister. 21 The ATSIC assessment team encountered difficulties in obtaining all the information it required from the Pilbara Land Council. The field visit, at which the assessment team raised its concerns in relation to the Council's application, was held on 13 and 14 October 1999. The minutes prepared by the ATSIC assessment team set out, in some detail, the matters raised and discussed in the course of the field visit. The Pilbara Land Council prepared its own minutes, but in a summary form. 22 There was no dispute as to the accuracy of the minutes of the ATSIC assessment team. Senior counsel for the Pilbara Land Council accepted that the information that was adverse to the Council's application, and the other matters of concern to the assessment team concerning the Council's application, were fairly raised with and put to the representatives of the Council who attended the meeting. 23 In the course of its assessment process the assessment team had read a report (prepared for ATSIC in relation to its funding decisions) entitled "Limited Review of Pilbara Aboriginal Land Council Aboriginal Corporation" ("the Critchley Report"). The Critchley Report identified a number of areas of concern regarding the internal management and operations of the Council. The matters in the report which concerned the assessment team were discussed in the course of the field meeting. The substance of the report, without references to individual staff members, was subsequently provided to the Pilbara Land Council. 24 One factual issue was in dispute in relation to the field meeting. The minutes of the Pilbara Land Council suggest that the assessment team had agreed that the Council was to have the opportunity to present additional information if the assessment team made adverse findings in the report it was to provide to the Minister. The minutes prepared by ATSIC contain no such assurance and the evidence of the team leader was that it was her practice only to give such assurances in relation to adverse information emanating from third parties. In my view the probability is that, apart from the Council's response to matters raised by the assessment team at the meeting, the assessment team only gave an assurance that it would afford the Council the opportunity to deal with any adverse information emanating from third parties. There are a number of reasons for that conclusion. The broader assurance suggested in the Council's minutes was inconsistent with the procedures that had been published to all representative bodies. It is likely that the assessment team, and in particular its leader, was conscious of the requirement that the procedures that were to be followed be substantially the same in respect of all applicant bodies. The significant departure from those procedures suggested in the minutes of the Council was, therefore, unlikely. Further, the minutes of the Council were in summary form, did not purport to record precisely what was said at the meeting and there were no special circumstances that would have warranted such a significant departure from the published procedures for the Pilbara Land Council. Furthermore, as the meeting had become quite emotional in relation to the concerns expressed by the assessment team it was less, rather than more, likely that the assessment team would undertake the burden of giving the Council the special opportunity to comment upon any adverse views expressed by the team in its report. Finally, this issue was left to be resolved by reference to the competing minutes without viva voce evidence as to what was actually said. In those circumstances I have concluded that, to the extent the Council relied on its minutes, it has not discharged the burden on it to persuade me as to their accuracy on this issue. 25 On 23 December 1999 the assessment team produced its report concerning the Pilbara Land Council and submitted it to ATSIC. The report contained a number of adverse observations and opinions concerning the Council. For example the report stated, inter alia: "…from an operational perspective, the Applicant does not have the ability to satisfactorily comply with the NTA after the transition period [and]…the Applicant may not continue to be financially viable…" 26 On 1 March 2000 ATSIC provided the Minister with a brief in relation to the Council's application including the report of the assessment team. 27 On 17 March 2000 the Minister made his decision not to recognise the Council as the representative body for the Pilbara invitation area. In the Minister's Statement of Reasons prepared on 23 May 2000 it is plain that the decision was based substantially, if not entirely, upon the report of the assessment team. 28 The Minister's conclusion was that the Council failed to satisfy the necessary statutory criteria for recognition as the representative body for the invitation area. 29 It is unnecessary to detail the various adverse observations and opinions concerning the Council that were expressed in the report as senior counsel for the Council accepted that the assessment team had raised the matters the subject of its report with the Council and had afforded the Council the opportunity of dealing with those matters. The complaint of the Pilbara Land Council was that the assessment team and the Minister did not afford it the opportunity to deal with the adverse observations and opinions of the assessment team which were set out in its report to the Minister and were so obviously critical to the outcome of the Council's application for recognition. Senior counsel for the Council contended that the omission or failure of the assessment team, and the Minister, to afford the Council the opportunity to deal with those observations or opinions constituted a breach of the rules of natural justice and, as a consequence, vitiated the Minister's decision. Ultimately, it was not contended that, save for those adverse observations and opinions, the Minister had wrongly acted upon or had regard to any other adverse "information" in relation to the Council. The Issues 30 The contentions of the Pilbara Land Council raised two fundamental issues. The first was whether the rules of natural justice applied to a decision of the Minister not to recognise the Council as the representative body for the Pilbara invitation area. The second related to whether, assuming the rules applied to the decision, the failure of the assessment team and the Minister to afford the Council an opportunity to deal with the adverse observations and opinions in the report of the assessment team constituted a breach of those rules. 31 In the course of announcing my decision I stated that I had concluded that the rules of natural justice applied to the decision but that the applicant had not established that the rules had been breached. I set out below my reasons for arriving at those conclusions.