THE TRUST CLAIM
67 The applicants' trust claim (apart from its precise quantification), does not turn on any contested evidence. It is an argument based upon a matter of statutory construction, and in the context of material which is not disputed. The evidence referred to by the parties for the determination of this issue includes the Gove Agreement and the title documents for the subject land, which simply set out the undisputed factual background. If the trust claim in principle were to be made out, as noted above, the determination of the shares of the Rirratjingu, the Gumatj and the Galpu would be a complex one. If the argument of the applicants is correct, that question is not within the role or powers of the NLC.
68 The applicants assert that in the interim period, where the NLC has received one of the quarterly payments of the Payments but has yet to disburse those funds to or for the benefit of the Rirratjingu, Gumatj, and Galpu, the Payments are held on trust for those people. The applicants contend that the Payments are held in a fixed and simple trust where the beneficial interest is held by each clan in proportions which reflect the particular interests in land over which, by the Gove Agreement, the traditional Aboriginal owners of that land had granted the Gove Leases and the RDA Lease. There is under that fixed trust no role for the NLC to form any judgment about the appropriate proportions of each group. The respective entitlements simply exist as a matter of complex fact.
69 On such an analysis, the applicants assert that the correct proportions ought to be 49.755% to the Rirratjingu, 49.755% to the Gumatj, and 0.49% to the Galpu. In reaching this figure, the applicants rely on the affidavit of Stuart Fairburn McLean, Chief Executive Officer of the RAC, affirmed on 25 August 2014. Mr McLean asserts that geographical breakdown is not the sole consideration. Rather, other relevant factors such as the significance of the land under Aboriginal tradition, including the presence of sacred or significant sites and its use by traditional Aboriginal owners in accordance with Aboriginal tradition, the nature and extent of environmental impact of the use of those areas, and the importance of those areas, all should be taken into account. Mr McLean went onto refer to various materials including the RTA 2012-2013 Mine Management Plan, the RTA 2013-2014 Mine Management Plan, and the RTA July 2011-June 2012 Annual Audit and Compliance Report - Water Discharge Licence 171-1, to highlight the magnitude of the environmental impact and adverse effects on lands and areas belonging to the Rirratjingu. It is not necessary to particularise the calculations, as the correctness or otherwise of Mr McLean's views and analysis do not fall for immediate decision.
70 As noted, on such an analysis or a different analysis (not yet clearly identified), the Galpu also contend that the Galpu's interest should be greater than 0.49%, after considering the importance of that land in relation to their Aboriginal tradition and culture, and the mining impacts suffered.
71 The NLC disputes the existence of a fixed trust of the kind described by the applicants. Section 35(8) of the ALRA provides that each amount of money that is paid to a Land Council as mention in subss (2), (3), (4) or (4B) shall be held in trust for the bodies to which or persons to whom that amount is eventually to be paid in accordance with s 35 until that amount is so paid. The NLC contends that neither the Gove Agreement nor the ALRA created or imposed a fixed trust, where the beneficial interest in the quarterly payments were held by each clan in fixed and complex but measurable proportions representative of the particular interests in land and other covenants of each group, so that the ALRA had no decision-making role to play. It says that the trust, as s 35(8) of the ALRA provides, is a trust in a non-technical sense for the statutory purposes in s 35. It is one which requires the NLC to ascertain who the traditional Aboriginal owners of the Aboriginal land in respect of which the payment had been received are, and then to decide upon the making of a payment of an amount equal to that payment that will be to, or for the benefit of, the traditional Aboriginal owners of the land. The Gumatj take the same position as the NLC.
72 The NLC also made a cross-claim in relation to the trust case. It alleges that if the Court found that there was a trust in the sense contended by the Rirratjingu, that trust would exist for charitable purposes and the Attorney-General of the Northern Territory is a necessary and proper party with respect to the applicants' claims. Further, if there was a trust in that strict and limited sense, the NLC as trustee ought to be relieved from any liability in relation to the distributions as it acted honestly and reasonably in making them.
73 In Gagudju Association v Northern Land Council [1995] FCA 304 (Gagudju), Olney J observed in the final section of his reasons at 9-10 that the effect of subs 35(8), in the context of mining royalty receipts under subs 35(2), was that:
A land council has no proprietary interest in money paid to it pursuant to s 64(3) other than as trustee. Immediately upon receipt of the money the land council is required to invest it (s 33(8)). Until the money is disbursed, the land council holds it (and any interest) as trustee for the bodies to which the amount is eventually to be paid in accordance with the section. This provision is consistent with the notion that the land council's determination identifies the body to which the money is eventually to be paid. It says nothing as to when it is to be paid. Indeed, the use of the word "eventually" [in subsection 35(8)] suggests that there may be a delay between the determination and the payment. …
In my view, no entitlement to the money is created before a determination is made. But once a determination is made the land council becomes obliged to pay the money in accordance with the determination.
74 Gagudju involved a claim similar to the applicants' claim in this matter. It is not directly comparable because the relevant payment to the NLC was made under s 35(2). The context is the NLC's challenge in the Federal Court of Australia to the "Ranger" agreement for the development of the Ranger uranium project. In an earlier judgment: Gagudju Association v Northern Land Council [1995] FCA 305, Olney J had held that the Gagudju Association could not lawfully prevent the NLC from continuing to conduct that challenge, even though at the time it was the body, and probably the only body, representative of the traditional Aboriginal owners and was eligible to receive the royalty equivalent payments received by the NLC under s 35(2) through the relevant AB Account. The second decision concerned the Gagudju's claim that, upon receipt of the royalty equivalent payments, the NLC could not refuse to pay them. The NLC had acknowledged its obligations under s 35(8) but had indicated it would not make any payment until its next general meeting following a review of the Gadudju Association itself as the Gagudju Association was not co-operating in the conduct of the challenge to the "Ranger" agreement. At the commencement of the action by the Gagudju Association, the NLC did not hold any royalty equivalent payments but it had, before the judgment, received a significant payment. The six month period referred to in s 35(4) had not expired, and there was nothing to suggest that the review of the Gagudju Association and the next general meeting would not occur within that six month period from receipt of that significant payment. Consequently, Gagudju Association's claim that it was "entitled" to payment was dismissed on the basis there had been no decision by the NLC about payment and the six month period had not expired.
75 In my view, the circumstances of Gagudju are relevantly analogous to the present case. There has yet to be a determination by the NLC in relation to the July Payment received on 31 July 2014. I respectfully think Olney J's reasoning is correct and ought to be followed in this case. It is appropriate to explain that in a little more detail.
76 The applicants contend that there is a "fixed trust" for the Rirratjingu, Gumatj and Galpu as they hold the "beneficial interest" in the Payments in proportions that reflect "the particular interests" a group has in the land covered by the Gove Leases and the RDA Lease. They are entitled to those payments as they are the traditional Aboriginal owners.
77 It is trite law that one of the features of a "fixed trust" is that the beneficial interests of all the beneficiaries, as owners in equity, are ascertainable and fixed immediately: see Federal Commissioner of Taxation v Vegners (1989) 90 ALR 547 at 551-552 per Gummow J. However, it is evident that neither the ALRA nor the Gove Agreement require the fixing of or do fix the actual beneficial apportionment of interests among the three groups. The entitlement of the collective beneficiaries is not fixed. The complexity of the reasoning and analysis of Mr McLean referred to above, and the fact that it necessarily involves some elements of subjective assessment tend to illustrate that point. It is very difficult to see how, as a matter of necessary legislative prescription, by inference, the process he refers to and the qualitative assessments he says should be made are fixed by the ALRA. That must be done by inference, if the argument is correct, because it is clearly not explicit.
78 Further, the Gove Agreement only refers to "traditional Aboriginal owners". It does not expressly identify that the Rirratjingu, Gumatj, and Galpu were the traditional Aboriginal owners and the only traditional Aboriginal owners. The Gove Agreement provides that RTA will pay all moneys which it is liable to pay under the Gove Agreement to the NLC to or for the benefit of the "traditional Aboriginal owners", as so defined, and makes specific provision in case Aboriginal persons other that the Rirratjingu, Gumatj, and Galpu people establish to the satisfaction of the NLC that they are traditional Aboriginal owners of the subject land. The Gove Agreement further provides that the NLC has the function of identifying any further traditional Aboriginal owners, as defined and not named, and the function of receiving and distributing payments to or for the benefit of the traditional Aboriginal owners in accordance with s 35(4) and other provisions of the ALRA.
79 Moreover, the Payments are to be applied to cultural, economic, and social purposes. I recognise what the learned authors JD Heydon and MJ Leeming of Jacobs' Law of Trusts (7ed, LexisNexis Butterworths, 2008), observed at [107]:
[T]here may be a valid trust in favour of a class of persons, the exact constitution of which is unknown at the time of the creation of the trust. In the case of public or charitable trusts, there will be no individuals as beneficiaries. There, the beneficiary must be regarded as the charitable purpose to which the trust property is devoted.
However, the purposes of the Payments are broadly expressed. They are not directed to be paid (assuming the proportions are fixed) to the RAC, or to the GAC, or to any particular person or body. They are not directed to be paid without qualification or direction as to their application. They are not directed to be paid without regard to their application, or without regard to the person or body who will be expected to fulfil or achieve that purpose.
80 Accordingly, whilst the Payments are received under s 35(4) and held under s 34(8), in my view at the time of their receipt by the NLC there is no present entitlement to the applicants (or any of them) or to others to any particular sum or for any particular use until the NLC has decided in terms of s 35(4) the amount, and the person or persons or body or bodies to whom the amount is to be paid, and in this case in what proportions as between the three groups. For example, at the time the NLC received the July Payment, neither the RAC nor any of the individual applicants, either alone or in any grouping of them, was entitled to a particular payment from the NLC. The NLC is obliged under s 35(4) to disburse that Payment within six months, but until it decides to whom and in what amounts and (if appropriate) for what purposes that Payment is to be applied, there is no enforceable legal entitlement on the part of the RAC or any of the applicants to receive any of that Payment. Of course, there may be an entitlement to oblige the NLC to make its decision so that it complies with the obligations to disburse the Payment within six months, but that does not give rise to a trust of the character proposed by the applicants.
81 The decision is that of the NLC. Section 35(8) contemplates the payment may be made to a person or a body to be decided. The "trust" it prescribes does not, at the time of receipt of each quarterly payment, entitle the RAC, the GAC, any particular body or any particular person or persons immediately to that payment or to any particular portion of that payment.
82 The NLC maintains an account styled "Royalty Trust Account" into which moneys covered by s 35 are paid. All receipts and payments are made into and out of the one account. Likewise, the objects of payment under s 35(8) are the "persons or bodies" to whom an "amount" is to be paid, not the "traditional Aboriginal owners" of the land in respect of which the "payment" has been received.
83 In my view, the proper statutory construction of subss 35(4) and 35(8) does not give rise to a fixed trust. Nor do the terms and provisions in the Gove Agreement.
84 At the hearing, it became apparent that the applicants' primary (or alternative) contention was that the Gove Agreement, along with subss 35(4) and 35(8), created a species of statutory trust enforceable in equity.
85 A statute may adopt some attributes of a trust, such as the fixing of liability for application of funds other than for specified statutory purposes, but that does not constitute making those interested in the fund owners in equity: see Occidental Life Insurance Co of Australia Ltd v Bank of Melbourne (1992-1993) 7 ANZ Insurance Cases 61-201 at 78,316. Those with an interest in the trust fund have standing for relief to enforce the relevant statutory obligations about administration of the fund: see Fouche v Superannuation Fund Board (1952) 88 CLR 609 at 640.
86 In Wik Peoples v Queensland (1996) 187 CLR 1 (Wik), Gummow J observed at 197:
A statutory body in which a fund is vested may be styled as a "Trust", or may be given by its constituent the investment powers of trustees. In neither case may contributors to the fund have the beneficial interest of an ordinary cestui que trust [Fouche v Superannuation Fund Board (1952) 88 CLR 609 at 640; Superannuation Fund Investment Trust v Commissioner of Stamps (SA) (1979) 145 CLR 330 at 353-354 and 362-364]. On the other hand, from an express statement that a statutory body is not bound by the law relating to the administration of trust funds by trustees, it does not necessarily follow that in other respects the body is a trustee in the ordinary sense of moneys held by it [Registrar of Accident Compensation Tribunal v Federal Commissioner of Taxation (1993) 178 CLR 145 at 161-168]. In such ways the legislature may create entities which have some but not all of the characteristics of a trust. In each case the true construction of the law determines the degree of the analogy.
87 Justice Gummow's observation was reinforced by the High Court in Bathurst City Council v PWC Properties Pty Ltd (1998) 195 CLR 566, where the notion of a trust for statutory purposes was applied, in the context of local government legislation using the term "trust" in relation to land held by a Council for public purposes, and held to be used in a "non-technical sense" to control what otherwise would have been the freedom of disposition enjoyed by the registered proprietor of an estate in fee simple: see [44], [47], and [67] per curiam.
88 The question of whether there is a statutory trust depends on the construction of the provisions of the ALRA. It is important to recognise that even if the statute created funds characterised as a "trust", that is simply a creature of statute and accordingly, its operations are principally governed by the relevant legislative provisions.
89 The ALRA provides for the Land Trust to hold an estate in fee simple in the land for the "benefit" for the Aboriginal people concerned, a class that may fluctuate as traditional affiliations wane or wax: see R v Toohey; Ex parte Meneling Station Pty Ltd and Others (1982) 158 CLR 327 at 359 (Meneling Station). The terminology used, "Aboriginal people concerned", is also couched in wider terms than "traditional Aboriginal owners". It is clear that the wider grouping reflects the Land Trust's status as holder of an estate in fee simple. However, the fact that the Land Trust is subject to express constraints in ss 5, 12, and 19 of the ALRA as to how it can deal with the land is further indication that the trust in question is not a trust in an ordinary sense, but in the non-technical sense for statutory purposes: see Wurridjal v Commonwealth (2009) 237 CLR 309 at [128] and [171] (Wurridjal).
90 The applicants advanced five main submissions in relation to its trust claim. In my view, for the reasons that follow, the Gove Agreement and s 35(4) do not create a statutory trust in a strict technical sense. Rather, it is a trust in a non-technical sense for statutory purposes. However it is described, in my view, the role of the NLC includes the identification of the traditional Aboriginal owners of the land and the allocation of the Payments to individuals, groups, or other persons which must be to, or for the benefit of, those traditional Aboriginal owners.
91 First, the applicants' contend that the quarterly payments payable by RTA under the Gove Agreement and received by the NLC under s 35(4) of the ALRA were held by the NLC on trust for the traditional Aboriginal owners of the relevant land. If s 35 creates a trust, it is said that it is therefore clear that the Aboriginal owners of the land are the beneficiaries of that trust. There is no dispute that the Rirratjingu, Gumatj, and Galpu are the traditional Aboriginal owners of the relevant land. Thus, the Rirratjingu, Gumatj, and Galpu in a general or colloquial sense are the beneficiaries of that trust.
92 The term "to or for the benefit" of traditional Aboriginal owners of the land as used in s 35 is consistent with the proposition that it is a notion of a trust for statutory purposes. That does not necessarily mean that payment of an amount equivalent to a payment received in respect of Aboriginal land must be directly disbursed to individual Aboriginal persons, or entities, as the application of the "trust" funds may be effected by the application of an amount to purposes that promote their well-being, or to an entity like the RAC or another relevant Aboriginal corporation that exists for those purposes. The class of owners defined in s 35(4) and the Gove Agreement are not fixed. The composition of a group will change over time, as too may affiliations to the land.
93 Even if it is currently common ground that the traditional Aboriginal owners of the land are members of the three Aboriginal groups, neither the ALRA nor the Gove Agreement expressly identify, or expressly require the identification of, particular Aboriginal persons or entities to receive payments. It is the object of the legislation and the Gove Agreement that all traditional Aboriginal owners, regardless of their connection to particular groups, benefit from the funds payable through mining operations.
94 Second, the applicants point to the fact that the fund which is the subject of the trust is the consideration payable by RTA under the Gove Agreement in return for the grant of leases and other covenants given by the traditional Aboriginal owners of the land the subject of those leases and that the fund is payable in the form of regular payments under the Gove Agreement.
95 Whilst that is so, it does not lead to a trust of the character argued for. In my view, whilst s 35(4) confers an obligation on the NLC to pay "an amount equal to" the Payments it receives to, or for the benefit of, the traditional Aboriginal owners of the land concerned, it is not expressly obliged to pay the payment to a particular person or entity. It also does not require that the payment be apportioned among subsets of traditional Aboriginal owning groups, or to the three groups of traditional owners (as is the present case) in a particular way. It is to be for their benefit. Upon receipt of the funds, there is no person or body with rights to lay claim to any of those funds: see Superannuation Fund Investment Trust v Commissioner of Stamps (SA) (1979) 145 CLR 330 at 353-354 per Mason J. The ALRA does not authorise the conferral of proprietary rights beneficially upon any particular party: see, for example, s 71 of the ALRA and Risk v Northern Territory (2002) 210 CLR 392 at [75] (Risk). Any moneys paid are subject to the NLC carrying out its statutory functions pursuant to the ALRA, such as those outlined in ss 23 and 35. Besides lawfully carrying out its duties under the ALRA, it is not obliged to make any particular payments to any particular person or entity. Since the execution of the Gove Agreement, the NLC has paid out the Payments received from RTA to the "traditional Aboriginal owners" within the mandatory statutory period of six months.
96 Third, it is said that the Rirratjingu possess a single proprietary community title in relation to certain parts of that land. They are the sole Aboriginal owners of some of that land. Allied to that is the fourth point, namely that the income which is attributable to the Rirratjingu belongs to them. It is said that there is also no express indication from the Gove Agreement or the ALRA that the beneficial entitlement of the traditional Aboriginal owners is not absolute in the sense that their right to enjoy the income from their land is not dependent upon a prior decision of the NLC.
97 The Gove Agreement is silent as to the apportionment of the funds payable to traditional Aboriginal owners under the Gove Agreement between the Rirratjingu, Gumatj, and Galpu. Absent agreement, the applicants submit that the apportionment of income generated from an estate in fee simple between the beneficial co-owners of the component parts of the estate would be based on an equitable accounting reflecting the contributions that each co-owner has made towards generating that income, by analogy with the calculation of the beneficial interest enjoyed by persons who contribute in different ways to the acquisition of property: see Calverley v Green (1984) 155 CLR 242.
98 On these points, in addition to the observations I have made above, it is important to contrast the provisions in the Gove Agreement in relation to the payments derived from mining operations, which refers only to "traditional Aboriginal owners" and other financial benefits. These include sub-lease and asset transfers to be made expressly in favour of the Rirratjingu and Gumatj, rather than "traditional Aboriginal owners". In some instances, benefits are directed to one of the two groups, such as a land transfer to the Rirratjingu, and the grant of timber rights to the Gumatj. The Gove Agreement recognised the interests that are clearly held solely by a particular Aboriginal group and in the context of mining operations which covers a vast area, contemplated the possibility of claims by a person as a "traditional Aboriginal owner" in the future.
99 It appears that the applicants' trust case is premised on the proposition that, under the ALRA, "traditional Aboriginal owners" have "ownership" of the land and consequently of the proceeds of it, that is, relevantly, the Payments. However, the ALRA Act does not confer or authorise the conferral of proprietary rights upon any particular person or persons beneficially: see Risk at [75]. Prior to the decision in Mabo v Queensland (No 2) (1992) 175 CLR 1, it was observed by Blackburn J in Milirrpum v Nabalco (1971) 17 FLR 141 that general law, at the time, did not recognise the interests in land possessed by the Yolngu clans on the Gove Peninsula under Aboriginal laws and customs. The ALRA was introduced after that decision by Blackburn J. Thus, in Meneling Station at 355, Brennan J explained that the ALRA:
provides for the restoration of some areas of land within the Northern Territory to Aboriginal control and gives legislative recognition to Aboriginal rights and interests in that land. The Act does not confer or authorise the Crown to confer proprietary rights upon particular Aboriginals beneficially: Land Trusts are created to hold the title to an estate in fee simple in Aboriginal lands (s 4).
…
The granting of land under the Act vests in the hands of Aboriginal Land Trusts proprietary rights which, unlike the traditional usufructuary rights which Blackburn J held not to be property, are recognised by the common law. Those proprietary rights are carved out of the Crown's radical title.
100 Particularly, s 71 of the ALRA restored traditional rights by which Aboriginal people became entitled to their traditional rights of entry, occupation, and use with respect to Aboriginal land granted in fee simple to an Aboriginal Land Trust: see Meneling Station at 358. This construction was reinforced in Wurridjal at [98]-[100] and [382]-[391] per French CJ and Crennan J respectively, where it was found that the rights involved are sourced in statute and are not native title rights recognised by common law.
101 In my view, the words in ss 35(4) and 35(8) indicate that neither the RAC nor any of the individual applicants are beneficiaries in the ordinary sense, because none of them have a beneficial interest in the Payments as they are not absolutely entitled to them or any particular portion of them. They cannot as individuals call for a transfer of moneys, even though they are within the category of traditional Aboriginal owners of the land. A traditional Aboriginal owner does have a right to have the funds administered properly in accordance with the statute. That is, they are entitled to ensure that the Payments are disbursed within six months of receipt, and that they are allocated to persons or bodies "for the benefit" of the traditional Aboriginal owners.
102 I do not accept that any disputes as to allocation of income between the traditional Aboriginal owners under the ALRA are to be determined by the Court as the primary decision maker. The applicants contend that the express terms of s 35(4) do not confer power to the NLC to determine who the traditional Aboriginal owners are, and as there are three groups and what their respective entitlements should be. The applicants say the absence of an express grant of power to make such a determination is a strong indication that no such grant of power was intended. This is contrasted with ss 35(2) and 35(3)(b), where a Land Council is given the express power to determine proportions between the corporations of the traditional owners affected, and s 35(6C), which empowers the Land Council to vary or revoke an existing determination and to "make a new determination" in favour of another corporation. The applicants also rely on the text of s 35(8) in support of its contention. Thus, in circumstances where there is a dispute as to allocation of funds between Aboriginal groups in relation to land rights, it is argued that s 25 of the ALRA confers power upon the Court to resolve such disputes.
103 A Notice of a Constitutional matter under s 79B of the Judiciary Act 1903 (Cth) was given on 14 November 2014. By that, the applicants advanced the submission that if s 35(4) is construed in such a way that gives the NLC the power to make those determinations, any such power may be unconstitutional. Thus, the preferable statutory construction would be for the Court to make the finding required in s 35(4) instead. That matter was not pursued in submissions, save to that its arguable character supports the construction for which they contended.
104 Section 35 and the accompanying provisions provide for the accountability of expenditure of money of a Land Council sourced mainly from the CRF. There is authority that recognises that persons with an interest in payment out of a statutory account styled as a "trust" are entitled to insist, by mandamus and through other remedies, that the relevant statutory obligations are adhered to, but nevertheless hold that they are not beneficially entitled to any part of the funds in the account: see Harmer v Commissioner of Taxation (1991) 173 CLR 264 at 272-273. Persons who stand to benefit as the object of the obligations may be said, in a loose sense, to be entitled to the repayment of an equivalent sum in the event of misapplication, but they cannot lay claim to any particular money in specie simply on its receipt under the statute as if they were beneficially entitled to any part: see New South Wales v Commonwealth (1932) 46 CLR 246 at 260-261.
105 Once steps are taken to effectuate the objects of s 35(4) for payment of an "amount equal" to the payment received, by identification of the relevant traditional Aboriginal owners and by deciding upon a payment or payments of the amount or amounts considered to be to or in their benefit, it might be said that at that point the decision of the NLC about the payments to be made means the particular proposed payments are required under s 35(8) to be held on trust for the persons or bodies who are eventually to receive payment. At that point, that is after the decision under s 35(4), there may be required a segregation, and dedication, of an amount required to effectuate that object: see New South Wales v Commonwealth (1932) 46 CLR 246 at 260. The objects and subject matter of s 35(8), and of the trust obligation, concern the "persons or bodies" to whom an "amount" is eventually (within six months) to be paid. That obligation is different from the objects and subject matter of s 35(4) which concern the "traditional Aboriginal owners" and the "payment received."
106 In my view, s 35(4) merely provides the preconditions to establish any such trust imposed by s 35(8). The preconditions require identification of the objects, the traditional Aboriginal owners, and the subject property, the payment equal to the amount received, to enliven s 35(8). Thus, until such "traditional Aboriginal owners" are identified, no individual has any entitlement to require payment. The identification is necessary because, "traditional Aboriginal owners", is an unincorporated association of persons without separate legal personality whose membership fluctuates. Also the preconditions required in s 35(4) involve the evaluation of complex factual matters. Whether such a "trust" arises so that, when the NLC has made its decision as required by s 35(4), the person or body to whom some funds are to be paid pursuant to that decision is entitled, as the beneficiary of a trust, to enforce the decision is not a point which it is necessary finally to resolve. There has been no such decision in relation to the July Payment, and any such decision is not the foundation for the applicants' case.
107 Sections 23 and 24 make it clear that the groups who are the relevant traditional Aboriginal owners of the land concerned are those groups determined to be so by the relevant Land Council in the course of performing its functions: see also Gondarra at [86]. It is well established that the persons comprising the group, being the traditional Aboriginal owners of any land may change over time, and that a Land Council is required to form an opinion on which persons constitute the group from time to time: see Jungarrayi v Olney (1992) 34 FCR 496 at 503. Then, apart from the time limitation, the NLC needs to decide the manner and amounts of any payout or payments (to the total of the quarterly payments) which are to be made to or for the benefit of traditional Aboriginal owners.
108 Those matters, together with the general functions and responsibilities of the Land Council under the ALRA referred to above, indicate in my view that it is intended by s 35(4) that the NLC should in the first instance make the decision about the application of the Payments, including in this instance the proportions applicable to each of the three groups as well as the individual or group or corporate recipients and where appropriate the purposes for which the payment is to be received and applied. It is a representative body, with characteristics and qualities which indicate it should have the capacity to do so. There is no other body or entity with the appropriate qualities to do so, under the ALRA.
109 I say this in the first instance simply to indicate that the decisions of the NLC must of course be lawful. I do not therefore foreclose the possibility of judicial review or oversight of the decisions in appropriate circumstances. However, in my view, it is clear that the NLC is intended to be the decision maker under s 35(4).
110 For those reasons, I do not accept the trust case put forward by the applicants. The "trust" which s 35(8) establishes is a statutory trust, simply recognising that the relevant Land Council has no beneficial interest in moneys received under s 35(4), and must deal with funds received under s 35(4) in accordance with its terms. Where, as here, there are three separate groups of people who are the traditional Aboriginal owners of the land, the NLC has the responsibility to decide, in accordance with its statutory obligations, how to apportion the Payments, including the July Payment as part of its function of deciding under s 35(4) what amount or amounts are payable "to or for the benefit of the traditional Aboriginal owners" of that land.