The proceedings and judgment at first instance
38 Before the primary judge, the present appellants made the trust claim which (apart from its precise quantification), did not turn on any contested evidence. It was an argument based upon a matter of statutory construction, and in the context of material which was not disputed. The evidence referred to by the parties for the determination of this issue included the Gove Agreement and the title documents for the subject land, which set out the undisputed factual background. The primary judge said that if the trust claim in principle were to be made out, the determination of the shares of the Rirratjingu, the Gumatj and the Galpu would be a complex one.
39 If the argument of the present appellants was correct, the primary judge said at [67], that question was not within the role or powers of the NLC.
40 At [68], the primary judge said that the present appellants asserted that where the NLC had received one of the quarterly payments of the Payments but had yet to disburse those funds to or for the benefit of the Rirratjingu, Gumatj, and Galpu, the Payments were held on trust for those people. They contended that the Payments were held in a fixed and simple trust where the beneficial interest was held by each clan in proportions which reflected 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 was under that fixed trust no role for the NLC to form any judgment about the appropriate proportions of each group. The respective entitlements simply existed as a matter of complex fact.
41 On such an analysis, the primary judge said at [69], the present appellants asserted 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 geographical breakdown was not the sole consideration. Rather, other relevant factors such as the significance of the land under Aboriginal tradition were involved.
42 The Galpu also contended that their 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.
43 The NLC disputed the existence of a fixed trust of the kind described by the appellants. Section 35(8) of the ALRA provided that each amount of money that was paid to a Land Council as mentioned in ss 35(2), (3), (4) or (4B) shall be held in trust for the bodies to which or persons to whom that amount was eventually to be paid in accordance with s 35 until that amount was so paid. The NLC contended that neither the Gove Agreement nor the ALRA created or imposed a fixed trust, where the beneficial interest in the quarterly payments was 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 NLC had no decision-making role to play. It said that the trust, as s 35(8) of the ALRA provided, was a trust in a non-technical sense for the statutory purposes in s 35. It was one which required the NLC to ascertain who the traditional Aboriginal owners of the Aboriginal land in respect of which the payment had been received were, 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 took the same position as the NLC.
44 The primary judge referred to Gagudju Association v Northern Land Council [1995] FCA 304 (Gagudju) at 9-10 and said, at [75], that the circumstances of Gagudju were relevantly analogous to the present case. There had yet to be a determination by the NLC in relation to the July Payment received on 31 July 2014. One of the features of a "fixed trust" was that the beneficial interests of all the beneficiaries, as owners in equity, were ascertainable and fixed immediately: see Federal Commissioner of Taxation v Vegners (1989) 90 ALR 547 at 551-552 per Gummow J. However, it was evident that neither the ALRA nor the Gove Agreement required the fixing of or did fix the actual beneficial apportionment of interests among the three groups. The entitlement of the collective beneficiaries was not fixed. Further, the Gove Agreement only referred to "traditional Aboriginal owners". It did not expressly identify that the Rirratjingu, Gumatj, and Galpu were the traditional Aboriginal owners and the only traditional Aboriginal owners. The Gove Agreement provided 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 made specific provision in case Aboriginal persons other that the Rirratjingu, Gumatj, and Galpu people established to the satisfaction of the NLC that they were traditional Aboriginal owners of the subject land. The Gove Agreement further provided that the NLC had 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.
45 Moreover, the primary judge said, at [79], the Payments were to be applied to cultural, economic, and social purposes. He referred to JD Heydon and MJ Leeming of Jacobs' Law of Trusts (7th ed, LexisNexis Butterworths, 2008), 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.
The primary judge said the purposes of the Payments were broadly expressed. They were not directed to be paid (assuming the proportions were fixed) to the RAC, or to the Gumatj Aboriginal Corporation (sic) (GAC), or to any particular person or body. They were not directed to be paid without qualification or direction as to their application. They were 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.
46 Accordingly, the primary judge said, at [80], whilst the Payments were received under s 35(4) and held under s 34(8), at the time of their receipt by the NLC there was no present entitlement to the present appellants (or any of them) or to others to any particular sum or for any particular use until the NLC had decided in terms of s 35(4) the amount, and the person or persons or body or bodies to whom the amount was to be paid, and in this case in what proportions as between the three groups.
47 The primary judge said, by way of example, that at the time the NLC received the July Payment, neither the RAC nor any of the present appellants, either alone or in any grouping of them, was entitled to a particular payment from the NLC. The NLC was obliged under s 35(4) to disburse that Payment within six months, but until it decided to whom and in what amounts and (if appropriate) for what purposes that Payment was to be applied, there was no enforceable legal entitlement on the part of the RAC or any of the present appellants to receive any of that Payment. Of course, there may be an entitlement to oblige the NLC to make its decision so that it complied with the obligations to disburse the Payment within six months, but that did not give rise to a trust of the character proposed by the present appellants.
48 The primary judge said, at [81], the decision was that of the NLC. Section 35(8) contemplated the payment may be made to a person or a body to be decided. The "trust" it prescribed did 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.
49 At [83], the primary judge concluded that the proper statutory construction of ss 35(4) and 35(8) did not give rise to a fixed trust. Nor did the terms and provisions in the Gove Agreement.
50 The present appellants' primary (or alternative) contention was that the Gove Agreement, along with ss 35(4) and 35(8), created a species of statutory trust enforceable in equity.
51 The primary judge, at [85], said 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 did not constitute making those interested in the fund owners in equity: see Occidental Life Insurance Co of Australia Ltd v Bank of Melbourne (1991) 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.
52 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.
53 Justice Gummow's observation was reinforced 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.
54 The primary judge said, at [88], the question of whether there was a statutory trust depended on the construction of the provisions of the ALRA. It was important to recognise that even if the statute created funds characterised as a "trust", that was simply a creature of statute and accordingly, its operations were principally governed by the relevant legislative provisions.
55 The ALRA provided 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, was also couched in wider terms than traditional Aboriginal owners. It was clear that the wider grouping reflected the Land Trust's status as holder of an estate in fee simple. However, the fact that the Land Trust was subject to express constraints in ss 5, 12, and 19 of the ALRA as to how it can deal with the land was further indication that the trust in question was not a trust in an ordinary sense, but in the non-technical sense for statutory purposes: see Wurridjal v Commonwealth (2009) 237 CLR 309 at [128] and [171] (Wurridjal).
56 The primary judge concluded that the Gove Agreement and s 35(4) did not create a statutory trust in a strict technical sense. Rather, it was a trust in a non-technical sense for statutory purposes. However it was described, the role of the NLC included 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.
57 Before the primary judge, the present appellants advanced the following main submissions in relation to their trust claim.
58 First, the primary judge said, the present appellants' contended 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 created a trust, it was said that it was therefore clear that the Aboriginal owners of the land were the beneficiaries of that trust. There was no dispute that the Rirratjingu, Gumatj, and Galpu were the traditional Aboriginal owners of the relevant land. Thus, the Rirratjingu, Gumatj, and Galpu in a general or colloquial sense were the beneficiaries of that trust.
59 The term "to or for the benefit" of traditional Aboriginal owners of the land as used in s 35 was consistent with the proposition that it was a notion of a trust for statutory purposes. That did 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 existed for those purposes. The class of owners defined in s 35(4) and the Gove Agreement were not fixed. The composition of a group will change over time, as too may affiliations to the land.
60 Even if it was currently common ground that the traditional Aboriginal owners of the land were members of the three Aboriginal groups, neither the ALRA nor the Gove Agreement expressly identified, or expressly required the identification of, particular Aboriginal persons or entities to receive payments. It was the object of the legislation and the Gove Agreement that all traditional Aboriginal owners, regardless of their connection to particular groups, benefitted from the funds payable through mining operations.
61 Second, the present appellants pointed to the fact that the fund which was the subject of the trust was 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 was payable in the form of regular payments under the Gove Agreement.
62 Whilst that was so, the primary judge said at [93], it did not lead to a trust of the character argued for. Whilst s 35(4) conferred an obligation on the NLC to pay "an amount equal to" the Payments it received to, or for the benefit of, the traditional Aboriginal owners of the land concerned, it was not expressly obliged to pay the payment to a particular person or entity. It also did not require that the payment be apportioned among subsets of traditional Aboriginal owning groups, or to the three groups of traditional owners (as was the present case) in a particular way. It was to be for their benefit. Upon receipt of the funds, there was 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 did 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]. Any moneys paid were 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 was not obliged to make any particular payments to any particular person or entity. Since the execution of the Gove Agreement, the NLC had paid out the Payments received from RTA to the "traditional Aboriginal owners" within the mandatory statutory period of six months.
63 Third, it was said that the Rirratjingu possessed a single proprietary community title in relation to certain parts of that land. They were the sole Aboriginal owners of some of that land. Allied to that was the fourth point, namely that the income which was attributable to the Rirratjingu belonged to them. It was said that there was also no express indication from the Gove Agreement or the ALRA that the beneficial entitlement of the traditional Aboriginal owners was not absolute in the sense that their right to enjoy the income from their land was not dependent upon a prior decision of the NLC.
64 The primary judge said, at [97], that the Gove Agreement was 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 present appellants submitted 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.
65 On these points, the primary judge said at [98], it was important to contrast the provisions in the Gove Agreement in relation to the payments derived from mining operations, which referred only to "traditional Aboriginal owners", and other financial benefits. These included 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 were 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 were clearly held solely by a particular Aboriginal group and, in the context of mining operations which covered a vast area, contemplated the possibility of claims by a person as a "traditional Aboriginal owner" in the future.
66 It appeared, the primary judge said at [99], that the present appellants' trust case was 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 did 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 the 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:
[P]rovides 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.
67 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 were sourced in statute and were not native title rights recognised by common law.
68 At [101], the primary judge said the words in ss 35(4) and 35(8) indicated that neither the RAC nor any of the individual present appellants were beneficiaries in the ordinary sense, because none of them had a beneficial interest in the Payments as they were not absolutely entitled to them or any particular portion of them. They could not as individuals call for a transfer of moneys, even though they were within the category of traditional Aboriginal owners of the land. A traditional Aboriginal owner did have a right to have the funds administered properly in accordance with the statute. That is, they were entitled to ensure that the Payments were disbursed within six months of receipt, and that they were allocated to persons or bodies "for the benefit" of the traditional Aboriginal owners.
69 At [102], the primary judge said he did not accept that any disputes as to allocation of income between the traditional Aboriginal owners under the ALRA were to be determined by the Court as the primary decision maker. The present appellants contended that the express terms of s 35(4) did not confer power to the NLC to determine who the traditional Aboriginal owners were, and, as there were three groups, what their respective entitlements should be. The present appellants said the absence of an express grant of power to make such a determination was a strong indication that no such grant of power was intended. This was contrasted with ss 35(2) and 35(3)(b), where a Land Council was given the express power to determine proportions between the corporations of the traditional owners affected, and s 35(6C), which empowered the Land Council to vary or revoke an existing determination and to "make a new determination" in favour of another corporation. The present appellants also relied on the text of s 35(8) in support of their contention. Thus, in circumstances where there was a dispute as to allocation of funds between Aboriginal groups in relation to land rights, it was argued that s 25 of the ALRA conferred power upon the Court to resolve such disputes.
70 At [104], the primary judge said that s 35 and the accompanying provisions provided for the accountability of expenditure of money of a Land Council sourced mainly from the Consolidated Revenue Fund. There was authority that recognised that persons with an interest in payment out of a statutory account styled as a "trust" were entitled to insist, by mandamus and through other remedies, that the relevant statutory obligations were adhered to, but nevertheless held that they were 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 stood 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 could not 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.
71 At [105], the primary judge said that once steps were 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 meant the particular proposed payments were required under s 35(8) to be held on trust for the persons or bodies who were eventually to receive payment. At that point, 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, concerned the "persons or bodies" to whom an "amount" was eventually (within six months) to be paid. That obligation was different from the objects and subject matter of s 35(4) which concerned the "traditional Aboriginal owners" and the "payment received".
72 At [106], the primary judge said s 35(4) merely provided the preconditions to establish any such trust imposed by s 35(8). The preconditions required 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" were identified, no individual had any entitlement to require payment. The identification was necessary because, "traditional Aboriginal owners", was an unincorporated association of persons without separate legal personality whose membership fluctuated. Also the preconditions required in s 35(4) involved the evaluation of complex factual matters. Whether such a "trust" arose so that, when the NLC had made its decision as required by s 35(4), the person or body to whom some funds were to be paid pursuant to that decision was entitled, as the beneficiary of a trust, to enforce the decision was not a point which it was necessary finally to resolve. There had been no such decision in relation to the July Payment, and any such decision was not the foundation for the present appellants' case.
73 At [107], the primary judge said ss 23 and 24 made it clear that the groups who were the relevant traditional Aboriginal owners of the land concerned were those groups determined to be so by the relevant Land Council in the course of performing its functions: see also Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2014] FCA 25; 220 FCR 202 (Gondarra) at [86]. It was 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 was required to form an opinion on which persons constituted the group from time to time: see Jungarrayi v Olney (1992) 34 FCR 496 at 503. Then, apart from the time limitation, the NLC needed to decide the manner and amounts of any payout or payments (to the total of the quarterly payments) which were to be made to or for the benefit of traditional Aboriginal owners.
74 Those matters, the primary judge said at [108], together with the general functions and responsibilities of the Land Council under the ALRA already referred to, indicated that it was 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 was to be received and applied. It was a representative body, with characteristics and qualities which indicated it should have the capacity to do so. There was no other body or entity with the appropriate qualities to do so, under the ALRA.
75 At [109], the primary judge said the decisions of the NLC must of course be lawful. He did not therefore foreclose the possibility of judicial review or oversight of the decisions in appropriate circumstances. However, it was clear that the NLC was intended to be the decision maker under s 35(4).
76 For those reasons, the primary judge did not accept the trust case put forward by the present appellants. The "trust" which s 35(8) established was a statutory trust, simply recognising that the relevant Land Council had 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 were three separate groups of people who were the traditional Aboriginal owners of the land, the NLC had 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 were payable "to or for the benefit of the traditional Aboriginal owners" of that land.