Re Attorney-General of the Northern Territory of Australia v the Minister of Aboriginal Affairs; George Brown Jungarrayi; Lawrence Kelly Jakamarra; Re Kaytej, Warlpiri and Warlmanpa Land Claim; Re Warlmanpa, Mu [1986] FCA 269 (13 August 1986)

FEDERAL COURT OF AUSTRALIA

Re: THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA
And: THE MINISTER FOR ABORIGINAL AFFAIRS; GEORGE BROWN JUNGARRAYI; LAWRENCE
KELLY JAKAMARRA; IN THE MATTER OF THE KAYTEJ, WARLPIRI and WARLMANPA LAND
CLAIM; IN THE MATTER OF THE WARLMANPA, MUDBURA, WARLPIRI and WARUMUNGU LAND
CLAIM
No. NSW G11 of 1986
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.

CATCHWORDS

Administrative Law - Aboriginal land rights - Indication by Minister of intention to proceed with recommendation to Governor-General for the making of land grants - Whether decision by Minister to recommend land grant is subject to review under Administrative Decisions (Judicial Review) Act - Whether any "decision" had yet been made by Minister - Whether decision to recommend vitiated by failure of Minister to be first satisfied that land should be granted to one or more Land Trusts to be held for the benefit of relevant Aboriginals - Whether Minister took account of irrelevant considerations - Exercise of Court's discretion.

Administrative Decisions (Judicial Review) Act 1977 ss.3, 5, 6, 7

Aboriginal Land Rights (Northern Territory) Act 1976 s.11, 12, 14, 19, 23, 50, 67, 70, 74

Acts Interpretation Act 1901 s.16A

Control of Waters Act 1938 NT s.16A, 16B

Bill of Rights 1688 s.1

Re Toohey; ex parte Meneling Station Pty Limited (1982) 57 ALJR 59, Minister for Aboriginal Affairs v Peko-Wallsend Limited (31 July 1986, not yet reported), Re Kearney; ex parte Northern Land Council (1984) 52 ALR 1, Thongchua v Attorney-General (27 May 1986, not yet reported), Steiner v Attorney-General (1983) 52 ALR 148, Gourgaud v Lanton (1982) 42 ALR 117, Queen v Toohey; ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170, FAI Insurances Limited v Winneke [1982] HCA 26; (1982) 151 CLR 342, Australian Communist Party v The Commonwealth [1951] HCA 5; (1951) 83 CLR 1, Municipal Council of Sydney v Campbell (1925) AC 338, Jones v The Commonwealth [1963] HCA 43; (1963) 109 CLR 475, Attorney General (NSW) v Trethowan [1931] HCA 3; (1931) 44 CLR 394, Rediffusion (Hong Kong) Ltd v Attorney-General (Hong Kong) (1970) AC 1136, Cormack v Cope [1974] HCA 28; (1974) 131 CLR 432, McLean Bros. & Rigg Ltd v Grice [1906] HCA 1; (1906) 4 CLR 835, Western Stores Limited v Orange City Council (1971) 2 NSWLR 36, The Commonwealth and Central Wool Committee v The Colonial Combing, Spinning and Weaving Company Limited [1922] HCA 61; (1922) 31 CLR 421, Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, Fitzgerald v Muldoon (1976) 2 NZLR 615 referred to.

HEARING

SYDNEY
13:8:1986

Counsel for the Applicant: Mr T Simos QC with Mr J D Barrett

Solicitors for the Applicant: Messrs Clayton Utz

Counsel for the First Respondent: Mr G K Downes QC with Mr G Flick

Solicitors for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: Mr D Ross

Solicitor for the Second Respondent: Mr Bruce Donald

ORDER

The Application be dismissed.

The applicant pay to the respondents their costs of the proceeding.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

By this proceeding brought under the Administrative Decisions (Judicial Review) Act 1977 the Attorney-General for the Northern Territory challenges the legal validity of a position adopted by the Minister for Aboriginal Affairs, the first respondent, in relation to the making of certain land grants pursuant to the Aboriginal Land Rights (Northern Territory) Act 1976.

2. I put the matter in this way because the applicant does not concede that any decision under that Act has yet been made. In his Further Amended Application the applicant sought review of what he called two purported decisions of the Minister. In argument counsel for the applicant suggested that the relevant provision of the Administrative Decisions (Judicial Review) Act was s.6, which confers upon the Court power to review the conduct of a person who has engaged, is engaging or proposes to engage in conduct for the purpose of making a decision to which the Act applies. Counsel for the respondents do not contest the proposition that, if the relevant decisions are -- or will be -- decisions to which the Act applies, within the definition of that term in s.3 of the Act, there is jurisdiction to review the Minister's conduct. However, the first respondent submits that the decisions fall outside that definition because of the presence in the definition of the words "other than a decision by the Governor-General". In order to raise that matter the first respondent has filed a notice of objection to competency, argument upon which has taken place in conjunction with the argument upon the merits of the Application.

The objection as to competency

3. The objection as to competency arises out of the terms of the Administrative Decisions (Judicial Review) Act, as applied to the provisions of the Aboriginal Land Rights (Northern Territory) Act. It does not depend upon the facts of the particular case and may be discussed immediately.

4. The Administrative Decisions (Judicial Review) Act provides for judicial review of any "decision to which this Act applies" or of any conduct in relation to such a decision: see ss.5, 6, 7. That phrase is defined by s.3 in the following way:

"3(1) In this Act, unless the contrary intention
appears--

...

'decision to which this Act applies' means a
decision of an administrative character made,
proposed to be made, or required to be made, as the
case may be (whether in the exercise of a
discretion or not) under an enactment, other than a
decision by the Governor-General, or a decision
included in any of the classes of decisions set out
in Schedule 1;

..."

If a given decision does not fall within that definition, review of the decision, or of conduct relating thereto, is not available under the Act.

5. The first respondent does not dispute that any decision made, or to be made, by the Minister is or would be a "decision of an administrative character". It is not suggested that Schedule 1 has any application. The question is whether any relevant conduct or decision by the Minister in relation to the making of land grants is excluded by the words "other than a decision by the Governor-General".

6. The scheme of the Aboriginal Land Rights (Northern Territory) Act has been analysed in a number of cases; notably in the decisions of the High Court of Australia in Re Toohey; ex parte Meneling Station Pty Limited (1982) 57 ALJR 59 and in Minister for Aboriginal Affairs v Peko-Wallsend Limited (13 July 1986, not yet reported). It is unnecessary for me to do more than to refer to the function of the Aboriginal Land Commissioner, under s.50 of the Act, to inquire into, and report upon, claims made to him by or on behalf of Aboriginals claiming to have a traditional land claim to areas of land falling within certain categories of Crown land and to set out the relevant parts of ss.11 and 12, which deal with the making of recommendations for a grant of, and the granting of, such land. Those parts provide:

"11.(1) Where--

(a) the Commissioner has, before the
commencement of the Aboriginal Land
Rights Legislation Amendment Act 1982,
recommended, or, after the commencement
of that Act, recommends, to the Minister
in a report made to him under paragraph
50(1)(a) that an area of Crown land
should be granted to a Land Trust for the
benefit of Aboriginals entitled by
Aboriginal tradition to the use or
occupation of that area of land, whether
or not the traditional entitlement is
qualified as to place, time,
circumstance, purpose or permission; and

(b) the Minister is satisfied--

(i) that the land, or a part of the
land, should be granted to a single
Land Trust to be held for the
benefit of Aboriginals who are the
relevant Aboriginals in relation to
that land or that part of that land;
or

(ii) that different parts of the land
should be granted to different Land
Trusts so that each Land Trust holds
the land granted to it for the
benefit of Aboriginals who are the
relevant Aboriginals in relation to
that last-mentioned land,

the Minister shall--

(c) establish--

(i) in a case where he is satisfied that
the land, or a part of the land,
should be granted to a single Land
Trust--a single Land Trust under
section 4 to hold that land, or that
part of that land, for the benefit
of Aboriginals who are the relevant
Aboriginals in relation to the land,
or the part of the land, proposed to
be held by that Land Trust; or

(ii) in a case where he is satisfied that
different parts of the land should
be granted to different Land
Trusts--2 or more Land Trusts under
section 4 respectively to hold those
different parts of that land for the
benefit of Aboriginals who are the
relevant Aboriginals in relation to
the parts of the land respectively
proposed to be held by each of those
Land Trusts;

(d) where land in respect of which a Land
Trust has been or is proposed to be
established in accordance with paragraph
(c) is, or includes, alienated Crown
land, ensure that the estates and
interests in that land of persons (other
than the Crown) are aquired (sic) by the
Crown by surrender or otherwise; and

(e) after any acquisition referred to in
paragraph (d) has been effected in
relation to land and a Land Trust has
been established in accordance with
paragraph (c) in respect of that land,
recommend to the Governor-General that a
grant of an estate in fee simple in that
land be made to that Land Trust.

(1AA) ...

(1AB) ...

(1AC) ...

(1AD) ...

(1A) ...

(2) ...

(3) ...

(4) In this section, 'relevant Aboriginals', in
relation to an area of land, means Aboriginals entitled
by Aboriginal tradition to the use or occupation of that
area of land, whether or not the traditional entitlement
is qualified as to place, time, circumstance, purpose or
permission."

"12.(1) Subject to this section, on the receipt of
a recommendation under section 10 or 11 with respect to
land, the Governor-General may--

(a) in the case of a recommendation under
sub-section 10(1) or section 11--execute
a deed of grant of an estate in the land
in accordance with the recommendation and
deliver it to the grantee; or

(b) in the case of a recommendation under
sub-section 10(2)--execute a deed of
grant of an estate in the land in
accordance with the recommendation and
deliver it to the Land Council referred
to in the recommendation on the condition
that it be held by the Land Council in
escrow, and subsequently delivered to the
grantee, in accordance with the
recommendation.

..."

7. As appears from the above extracts, the power of the Minister to recommend the grant of land by the Governor-General under s.12 is dependent upon the fulfillment of a number of prior conditions. First, there must be a recommendation from the Aboriginal Land Commissioner in favour of a grant (s.11(1)(a)). Secondly, the Minister must be satisfied that some or all of the land should be granted to one or more Land Trusts to be held for the benefit of relevant Aboriginals (s.11(1)(b)). Thirdly, the Minister must have established the relevant Land Trust or Land Trusts (s.11(1)(c)). Fourthly, any alienated estates or interests must have been acquired by the Crown (s.11(1)(d)). After those steps have been taken the Minister "shall ... recommend to the Governor-General that a grant of an estate in fee simple in that land be made to that Land Trust" (s.11(1)(e)). It is obvious that the process necessarily involves two decisions by the Minister: the decision to be satisfied, under para.(b), that land should be granted and the decision to recommend, under para (e)).

8. In terms, s.12(1) confers authority to execute deeds of grant upon the Governor-General, simpliciter. However, s.16A of the Acts Interpretation Act 1901 provides that, subject to the indication of any contrary intention, a reference in an Act to the Governor-General shall be read as "referring to the Governor-General ... acting with the advice of the Executive Council". There is no indication of a contrary intention in relation to the power conferred by s.12(1). That sub-section should be understood as conferring a power upon the Governor-General in Council. This view is consistent with the reference by Gibbs CJ in Re Kearney; ex parte Northern Land Council (1984) 52 ALR 1 at p 5 to the third of the "three independent discretions" being exercisable by "the Governor-General (ie. the Governor-General in Council ..." and with a similar reference by Brennan J in Peko-Wallsend at p.36; although it must be conceded that, so far as appears, the question was not debated in either case.

9. In support of their objection as to competency, counsel for the first respondent rely upon a decision of a Full Court of this Court in Thongchua v Attorney-General (27 May 1986, not yet reported) in which it was held, by majority, that the reference to a decision by the Governor-General, in the definition of "decision to which this Act applies", excludes from review under the Administrative Decisions (Judicial Review) Act a decision by the Attorney-General not to recommend to the Governor-General the release on licence of a Commonwealth prisoner pursuant to s.19A of the Crimes Act 1914. Section 19A(2) provides, in relation to certain persons, that the "Governor-General may, if he thinks it proper so to do in the circumstances, grant to that person , by writing under his hand, a licence to be at large". By sub-s.(14) it is provided that, for the purposes of the section, "the Governor-General" means "the Governor-General of the Commonwealth ... acting with the advice of the Attorney-General".

10. In Thongchua the majority (Neaves and Burchett JJ), approving an earlier decision of Beaumont J in Steiner v Attorney-General (1983) 52 ALR 148 upon the same point, held that the Attorney-General's decision as to the advice to be tendered by him to the Governor-General was immune from review under the Administrative Decisions (Judicial Review) Act. Reference was made to s.3(3) of the Act, which stipulates that "where provision is made by an enactment for the making of a report or recommendation before a decision is made in the exercise of a power under that enactment ... the making of such a report or recommendation shall itself be deemed, for the purposes of this Act, to be the making of a decision". However, their Honours at p.8 held that this sub-section had no application:

"Sub-section 3(3) of the Judicial Review Act
stands in sharp contrast to the terms of s.19A
of the Crimes Act 1914 (Cth). Sub-section
3(3) is concerned with a recommendation which
precedes a decision; in s.19A, the advice of
the Attorney-General is an essential
ingredient of the decision itself. The
Governor-General, when exercising such a
power, does not act personally but upon
ministerial advice, and the function of
sub-s.19A(14) is not to differentiate a
decision under the section from other
decisions of the Governor-General, but to
designate the source of the relevant
ministerial advice. Section 19A, in keeping
with wide constitutional usage, says 'the
Governor-General may, if he thinks it proper
so to do in the circumstances, grant ...', and
the advice of the Attorney-General is only
involved as a part, indeed a necessary part,
of the ordinary process of the making of such
a decision by the Governor-General. It is
therefore within a fair understanding of what
is comprehended by the reference in the
Judicial Review Act to 'a decision by the
Governor-General', and is plainly not within
sub-s.3(3) of that Act."

11. Fox J dissented, taking the view that the Attorney-General had a duty to consider an application by the prisoner to be released on licence. If the Attorney-General decided that there should be no recommendation he was, in effect, deciding to refuse the application. In his Honour's view this was a decision which attracted review under the Act. As his Honour pointed out, a decision by the Attorney not to recommend approval of the application was a final and complete decision, in the sense that the papers did not then go to the Attorney-General, so that the decision became that of the Attorney-General alone.

12. During the argument there was debate about the correctness of Thongchua; but that is not a matter for me. If Thongchua governs the present case, I am bound to apply the majority view. The real question is whether that decision applies to the present proceedings. I do not think that it does. As is made clear in the extract from their judgment which I have quoted, the majority contrasted the situation -- envisaged by s.3(3) of the Administrative Decisions (Judicial Review) Act -- of a recommendation which precedes a decision with the effect, upon their analysis, of s.19A of the Crimes Act; advice which is "an essential ingredient of the decision itself". In the present case, as I have pointed out, there are always two decisions to be made by the Minister before a grant may be made. The first is a final decision to be made under s.11(1)(b): whether he or she is satisfied that land should be granted to one or more Land Trusts to be held for the benefit of relevant Aboriginals. At this stage the Minister is not concerned with a mere recommendation. The decision is a final decision upon a matter committed to the Minister alone, a decision having the consequence of fulfilling one of the statutory conditions precedent to a grant. On no view can it be said that a decision under s.11(1)(b) is a decision by the Governor-General. The Governor-General is not concerned with that decision in any way.

13. The second question which the Minister has to decide, under s.11(1)(e), is whether the requirements of paras.(c) and (d) have been satisfied; so that it is now appropriate to make a recommendation to the Governor-General in Council that a grant be made. Unlike s.19A of the Crimes Act the paragraph expressly requires a recommendation. In the words of s.3(3) of the Administrative Decisions (Judicial Review) Act it is a provision "made by an enactment for the making of a ... recommendation before a decision is made" (by the Governor-General in Council) "in the exercise of a power under that enactment". It follows that, by force of the sub-section, the making by the Minister of the recommendation is deemed to be the making of a decision and is reviewable under that Act. It follows that the present Application, seeking review of the Minister's decisions and/or conduct under paras.(b) and (e) of s.11(1) of the Aboriginal Land Rights (Northern Territory) Act is competent.

14. I should add that counsel for the first respondent recognize that their submission is a broad one. They accept that the effect of their submission is that any anterior decisions, and any recommendation, in relation to a matter ultimately to be decided by the Governor-General, and notwithstanding other activities and the interposition of other advisors, is excluded from review as being "a decision by the Governor-General". If that be correct, numerous decisions granting relief under the Administrative Decisions (Judicial Review) Act -- including Peko Wallsend itself -- have been misconceived. The statement of Davies J in Gourgaud v Lanton (1982) 42 ALR 117 at p.123, that a recommendation made by the Presiding Officers of the Parliament for the appointment by the Governor-General of a person to a position in the Parliamentary Library would be reviewable because of s.3(3), would be incorrect.

15. The submission is not supported by the language used in the definition; it would have been easy to make express reference in the exclusionary words to an anterior decision and to a recommendation made to the Governor-General. Neither is it supported by legal history. As is revealed by the Second Reading Speech of the then Attorney-General upon the Administrative Decisions (Judicial Review) Bill in 1977 the decision to exclude from review decisions by the Governor-General was related to then accepted limitations upon the relief, whether by prerogative writ or otherwise, which could be granted in relation to decisions by the Queen's representatives. In referring to cl.3 of the Bill the Attorney-General said this:

"Decisions made by the Governor-General under
statutory authority are to be excluded, ...
The present law provides only a limited scope
for review of the exercise of statutory powers
by the Governor-General acting with the advice
of the Federal Executive Council. Where the
exercise of such a power is prima facie ultra
vires, the courts can grant appropriate
relief. But it appears doubtful whether the
courts will inquire into the grounds on which
advice is tendered to the Governor-General.
It will still be open, in any case where such
a decision is made in excess of statutory
authority, for the existing remedies to be
applied, but it has not been considered
appropriate that the court should be empowered
to inquire into the proceedings of the Federal
Executive Council in the manner provided for
in the present Bill."

See Parliamentary Debates, 30th Parl., 2nd Sess. at p.1395.

16. The doctrine that the courts will not inquire into the grounds on which advice is tendered to the Governor-General was subsequently held to be erroneous: see Queen v Toohey; ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170 and FAI Insurances Limited v Winneke [1982] HCA 26; (1982) 151 CLR 342. However, construing the exclusion clause against the old law, it is important to note that it was only the decision itself which was ever immune from review. As Dixon J explained in Australian Communist Party v The Commonwealth [1951] HCA 5; (1951) 83 CLR 1 at p.179, the doctrine was that "the counsels of the Crown are secret and an inquiry into the grounds upon which the advice tendered proceeds may not be made for the purpose of invalidating the act formally done in in the name of the Crown by the Governor-General in Council". The counsels of the Crown could not be invaded directly or collaterally but there was never a doctrine precluding challenge to the legal validity of acts done pursuant to a gubernatorial approval: see, for example, compulsory acquisition cases such as Municipal Council of Sydney v Campbell (1925) AC 338 and Jones v The Commonwealth [1963] HCA 43; (1963) 109 CLR 475. Neither was it doubted that proceedings could be brought to establish the failure of a condition precedent to vice-regal action, the appropriate respondents being those responsible for ensuring fulfillment of that condition: see, for examples Attorney General (NSW) v Trethowan [1931] HCA 3; (1931) 44 CLR 394, Rediffusion (Hong Kong) Ltd v Attorney-General (Hong Kong) (1970) AC 1136 at p.1155-1156 and Cormack v Cope [1974] HCA 28; (1974) 131 CLR 432. If the traditional view would have permitted the Court to restrain the Minister from making a recommendation to the Governor-General in favour of a land grant, upon the basis that a condition precedent to his power to make that grant had not yet been satisfied, it would be a strange result if the words used in the Administrative Decisions (Juridicial Review) Act excluded more.

The applications for land grants

17. I turn now to the facts of the case. They are not in dispute.

18. In November 1978 two separate applications for land grants were lodged with the Aboriginal Land Commissioner. The first was entitled -- after amendment -- the Warlmanpa, Warlpiri, Mudbura and Warumungu Land Claim; "the Warlmanpa claim". Between October 1980 and June 1981 the Aboriginal Land Commissioner, Toohey J, took evidence and heard addresses respecting this claim. On 30 September 1981 he presented his report to the then Minister. The report recommended the grant to a Land Trust of most of the unalienated Crown land in the claim area but the Commissioner drew attention to the fact that the Warrego Water Control District, as constituted in accordance with s.16A of the Control of Waters Act 1938 (NT), lay within the claim area. He referred to evidence of a proposal to constitute a much larger area of land as the Tennant Creek Water Control District. He went on:

"332. The continuation of the Warrego Water
Control District and the constitution of the
Tennant Creek Water Control District would not
be affected by a grant of land to a Land
Trust. The constitution of a water control
district does not affect the status of the
land and the regulation of activities within
such a district is preserved by s.74 of the
Land Rights Act to the extent that the
Northern Territory law is capable of operating
concurrently with that Act. ...

333. There was evidence of an intention by
the Water Division of the Northern Territory
Department of Transport and Works to 'carry
out investigation drilling over the whole of
the Wiso groundwater basin area and this will
necessitate the clearing of access tracks,
drill sites and camp sites' ... Such
activities appear to be authorised by s.16FA
of the Control of Waters Act and consistent
with s.74 of the Land Rights Act. Section
70(1) allows a person to enter and remain on
Aboriginal land in the performance of
functions under a law of the Northern
Territory; should a permit be required to
enter Aboriginal land, s.6 of the Aboriginal
Land Act provides that the Minister may issue
a permit to a person employed under or by
virtue of an Act of the Northern Territory.

334. The Northern Territory Government owns
no water-related capital assets within the
claim area but expressed concern that bores
sunk on the land would become the property of
the traditional Aboriginal owners ..."

19. Section 74 of the Aboriginal Land Rights (Northern Territory) Act provided, and still provides, that that Act "does not affect the application to Aboriginal land of a law of the Northern Territory to the extent that that law is capable of operating concurrently with this Act". Section 70 of the Act permits entry onto Aboriginal land, amongst other circumstances, in accordance with the law of the Northern Territory. However, s.67 prohibits the compulsory requisition of Aboriginal land under any law of the Northern Territory.

20. The second claim was known, again after amendment, as the Kaytej, Warlpiri and Warlmanpa Land Claim: "the Kaytej claim". It was heard in December 1981 and January 1982. The report of the Commissioner was dated 26 March 1982. Toohey J recommended the grant to a Land Trust of the whole of the land claimed. But, once again, he referred to the proposed Tennant Creek Water Control District. He mentioned the significance of an increased supply of water to the town of Tennant Creek and commented at para 129:

"To the extent that the town and adjacent areas
are dependent upon water, it is important that
some arrangement be made guaranteeing the
supply of water in the event that the land
becomes Aboriginal land. To say that is not
to suggest that the claimants would not be
prepared to enter into such an arrangement,
but in the interests of all concerned it is
better that the matter be resolved now.

21. Shortly after the presentation of the second report, on 10 June 1982, the Minister for Transport and Works in the Northern Territory Government abolished the Warrego Water Control District and constituted the Tennant Creek Water Control District. By his instrument, and pursuant to s.16B(1) of the Control of Waters Act, the Minister prohibited the sinking or constructing of any well or water bore within the District, except in accordance with a permit granted under that section. The instrument was later amended to extend the prohibition to use of any well or water bore.

The Ministerial correspondence

22. There was no decision by the then Minister in relation to either report. However, on 8 December 1983, the present Minister, Mr Clyde Holding, announced his acceptance of the recommendations for grants contained in the two reports. He referred to "the need to ensure that the water supply for the town of Tennant Creek be supplemented from the claim areas if necessary" but expressed his confidence that "the traditional owners and the Land Council are prepared to make reasonable arrangements to meet the needs of others".

23. A few days later, on 14 September 1983, the then Chief Minister of the Northern Territory, Mr Paul Everingham, wrote to the Minister seeking information as to the basis for his statement as to the attitude of the traditional owners and the Land Council.

24. There was no immediate direct response to this letter but, on 23 September 1983, an officer of the Department of Aboriginal Affairs wrote to the Director-General of the Department of the Chief Minister giving certain details about "assurances given by the Land Councils and the traditional owners" in relation, inter alia, to these two land claims. Apropos the Kaytej claim it was said, in respect of water, that "the traditional owners clearly indicated to the Central Land Council that they are mindful of the detriment issues which the Commissioner mentioned in his report and are keen to make arrangements with the parties concerned. In particular, they are willing to make arrangements for the development and use of water supply facilities in the Tennant Creek West Borefield area".

25. On 19 October 1983, in a direct response to the Chief Minister's letter of 14 September, the Minister confirmed this information:

"As to the details of arrangements to protect
the interests of other parties, I was
concerned to ensure before making my decision
on both the Warlmanpa and Kaytej claims, that
persons presently using parts of the claim
areas do not suffer undue detriment as a
result of the land being granted to Land
Trusts. I therefore obtained written
assurances from the traditional Aboriginal
owners and the Central Land Council, as
detailed below.

...

Town of Tennant Creek

The traditional owners have undertaken to
make appropriate arrangements for the
development and use of water supply
facilities in the Tennant Creek West Bore
Field area."

A few days later, on 25 October 1983, the Minister elaborated:

"Further to my letter of 19 October concerning
the Warlmanpa and Kaytej land claims, I expect
that your Government will wish to enter into
an agreement with the relevant Aboriginal Land
Trust in respect of the development and use of
water supply facilities in the Tennant Creek
West Borefield area. The agreement would be
signed immediately after title has been
granted to the Land Trust.

I wish to inform you that title will not be
granted to the Trust until your Government has
had sufficient time to settle the details of
the agreement. My officers will liaise with
yours in respect of progress in this matter."

26. On 6 December 1983 the Minister added that the Central Land Council had indicated to his officers "that the traditional owners have no intention of seeking unreasonable conditions for the use of their land by ..., in respect of the future water needs of Tennant Creek, the Northern Territory Government".

27. So far as the evidence indicates, there was no further contact between the two governments concerning those land claims for a period of fifteen months. On 11 March 1985 Mr Holding wrote to Mr Ian Tuxworth, who had succeeded Mr Everingham as Chief Minister, a letter expressing concern at "the time being taken in finalising arrangements to provide for the interests of some parties affected by these claims". In particular, he noted that no agreement had been reached with the Central Land Council regarding the interests of the Northern Territory Government. The Minister indicated that he had decided to grant all of the land recommended for grant by Toohey J in both claims except the area forming Tennant Creek Water Central District, in respect of which area he said that he had "reserved" his decision for the time being. The letter went on:

"I would hope that your Government can finalise
its negotiations with the Central Land Council
in this matter as soon as possible. I would
be prepared to assist in arranging for an
Arbitrator to be provided should there be
difficulties in finalising this matter as I am
anxious to deal with the remainder of the land
in both claims as soon as practicable.
However, if those negotiations are not settled
within a reasonable time I may, unless there
are compelling reasons for me not to do so,
arrange for the remainder of the land to be
granted without further notice."

28. The response of Mr Tuxworth, dated 12 April 1985, did not take up the suggestion of negotiations. It put broader matters. After stating his government's commitment "to advancing the interests of Aboriginals in the Northern Territory in a fair, balanced and harmonious way" the letter went on to express the "firm" view of the Northern Territory Government "that public purpose lands should not be available for claim, nor should they be granted". The letter noted the policy of various State governments concerning public purpose lands and claimed that "significant parts" of the Control of Waters Act cannot apply to Aboriginal land because of the "restrictions" contained in s.74 of the Aboriginal Land Rights (Northern Territory) Act. He complained that his government, unlike the State governments, "is denied the power to acquire any interests in Aboriginal land for public purposes no matter how vital or important that public purpose may be".

29. The Chief Minister went on to express the belief that negotiations could not, and should not, be finalised until Maurice J presented his report in relation to a further land claim, the Warumungu (Tennant Creek) Land Claim. The letter stressed "that it has been my Government's consistent submission that while you have a broad discretion under section 11 of the Aboriginal Land Rights Act, it is the Commonwealth's responsibility and duty to resolve and alleviate any detriment flowing from this Commonwealth legislation".

30. On 14 June 1985 the Minister replied. His letter, omitting formal parts, read as follows:

"The policy of the Commonwealth Government is
to ensure that the provision of water within
the Northern Territory is not disturbed as a
result of the grant of title to Aboriginal
Land Trusts under the Aboriginal Land Rights
(Northern Territory) Act 1976. I do not
think, however, that this policy requires that
land claimed forming part of a water control
district should be excised from a grant unless
suitable arrangements in respect of the land
under Aboriginal ownership cannot be made. In
the case of the Warlmanpa and Kaytej claims,
there is no reason yet to reach the conclusion
that the interests of the Northern Territory
Government cannot be accommodated
satisfactorily.

I understand that the Central Land Council has
expressed a willingness to enter into
negotiations regarding the land in the Tennant
Creek Water Control District relating to the
Kaytej and Warlmanpa land claim areas, and I
would hope that your Government would wish to
finalise negotiations in this matter as
quickly as possible. It might be useful if
these negotiations could be conducted so as to
provide for all land that might become
Aboriginal land in the Tennant Creek Water
Control District in order that agreed
arrangements in respect of the Warlmanpa and
Kaytej claims could be readily extended to the
relevant land in the Warumungu claim if that
land is recommended for grant by the
Aboriginal Land Commissioner. I have
suggested this approach to the Central Land
Council.

In the meantime, I am moving to have the land
in both claims, with the exception of the
Water Control District, granted as soon as
practicable."

31. Mr Tuxworth responded to this letter on 7 August 1985. Relevantly that letter said:

"Thank you for your letter of 14 June 1985. I
am heartened by your statement of the
Commonwealth Government's policy to ensure
that the provision of water within the
Northern Territory is not disturbed by grants
under the Land Rights Act.

This I take to mean that the Territory will
retain all its powers under its legislation
such that the Territory of its own motion and
without consent would be able to fully
regulate and control the land, protect the
resources and environment, enable it to
investigate and monitor, drill, establish
permanent facilities such as bores, pumping
facilities or whatever, extract water, lay
pipes wherever, prevent occupation of
sensitive areas which might foul the resources
or obstruct the activities of the Government
Agencies, and do all things necessary and
convenient to the foregoing.

In the context of Water Control Districts and
the Control of Waters Act, you are aware from
Mr Justice Toohey's review, 'Seven Years On',
that there are major problems with the Land
Rights Act and in particular sections 67 and
74 of that Act, and there are doubts as to the
vesting of groundwater. All need urgent
legislative attention. As Toohey J. said,
talking of constraints arising from section 74
of the Land Rights Act, which would prevent
the Territory from drilling, laying pipes and
supplying water:

'It is undesirable that these matters be
left entirely to the context of a
particular land claim. Section 74 should
be amended to make it clear that the
Control of Waters Act is capable of
operating concurrently with the Land
Rights Act.'

It is our firm and sincere view that under the
current legislation it is neither desirable
nor possible by means of covenants to make
satisfactory arrangements acceptable to the
Territory. The draft covenants sent to me by
the Land Council would effectively deny the
Territory its right to control and supply
water. I believe all State Governments would
find such proposals unacceptable.

I have previously put the Territory
Government's position that public purpose
lands, especially such land vital to the
existence and the development of Central
Australia, ought not be the subject of a grant
under the Land Rights Act. That is not to say
that under Territory legislation my Government
will not make suitable arrangements for the
grant of parts of the land within the
District."

32. On 10 September 1985 Mr Holding wrote to the Chief Minister a letter in which he said, in part:

"I have given careful consideration to the
interests of your Government and I am inclined
to believe that a grant of the land in the
Tennant Creek Water Control District (TCWCD)
on the basis of assurances set out below would
result in minimal, if any, detriment to your
Government.

As you point out, the concerns about detriment
suffered in this claim arise largely from
doubts about the extent to which the Control
of Waters Act (NT) is capable of operating
concurrently with the Aboriginal Land Rights
(Northern Territory) Act 1976.

You are aware of my intention to introduce a
package of amendments to the Land Rights Act
into the Parliament in the Autumn 1986
sittings. I will be recommending to Cabinet
that these amendments should allow the
Northern Territory Government to undertake
works on Aboriginal land in accordance with
the Control of Waters Act and to transport
water off the land consistent with
recommendations made by Mr Justice Toohey.
The passage of these amendments will,
therefore, fully protect the rights of the NT
Government to control and use water on
Aboriginal land. I intend to seek Cabinet
endorsement of these amendments in the near
future.

I note that your Government has not put
forward any firm proposals regarding
intentions to carry out works on the land in
the TCWCD, although I understand that it is
unlikely that any major works will be carried
out within the next 5 years or so. It seems
likely that any work that will be carried out
prior to the passage of these amendments can
be done under the legislation as it currently
stands. Further, I note that your
Government's immediate needs may be
accommodated under s14 of the Land Rights Act.
I believe that the section affords your
Government adequate security for the interim
period prior to the passage of amending
legislation in 1986. There is no reason, of
course, why your Government could not enter
into some form of agreement with the Central
Land Council for this interim period, if you
thought that was necessary."

33. The letter of 26 October 1985 from Mr Tuxworth, responding to Mr Holding's latest letter, re-iterated the policy position stated in his letter of 7 August that public purpose lands ought not to be the subject of grant under the Act. He said:

"I wish to emphasise again the Territory
Government's support for the grant of the
balance of the land in both the Warlmanpa and
Kaytej land claims. However, the Government
cannot support the inclusion of the land
designated as a Water Control District under
the Control of Waters Act, and I ask you to
give further serious consideration to the
detriment that will flow from any contrary
action. I note that your letter of 10
September 1985 does admit the possibility of
detriment.

I would also ask you again to consider
directing the Central Land Council to approach
me with the view of seeking the excision of
areas under Territory legislation to cater for
Aboriginal needs. I firmly believe that this
process will prove to be the most appropriate
way of reaching agreement on this complex and
sensitive issue to the satisfaction of all
parties concerned."

34. Mr Holding replied to that letter on 23 December 1985. The contents of this letter furnish the basis of the present Application so I shall quote it at some length:

"I have noted the Territory Government's
continued support for the grant of the
Warlmanpa and Kaytej land claims with
exception of the area designated as a Water
Control District under the Control of Waters
Act. As you know legislation is proposed
which will substantially accommodate the
Northern Territory's position concerning the
operation of the Control of Waters Act, and
concerning future claims on designated public
purpose lands. I am, however, satisfied that
any potential detriment for the Northern
Territory Government arising from a grant of
all of the land in the claim area can be
satisfactorily mitigated through the existing
provisions of the Land Rights Act and
co-operation with the Central Land Council.
While it is a matter for your Government, I
would have thought a formal agreement between
your Government and the Land Council would
enable any final reservations concerning
detriment to be put to rest. I do not regard
the seriousness of potential detriment to be
such to warrant holding up the grant in the
absence of such an agreement.

The Central Land Council has assured me of its
continued willingness to make appropriate
arrangements with the Territory Government to
allay fears of possible detriment through a
grant of the TCWCD.

Your letter indicates, however, that you have
not sought to negotiate. To the extent you
have proposed negotiations they are premised
on the basis of an excision of the TCWCD. The
Commonwealth's policy is to ensure that the
provision of water within the Northern
Territory is not disturbed as a result of the
Land Rights Act, and I do not believe this
policy requres that land claimed forming part
of a water control district should be excised
from a grant unless suitable arrangements in
respect of the land under claim cannot be
made.

It is now over 9 months since I announced my
decision on the balance of the claim area and
every opportunity has been provided to you and
your Government to reach an agreement
acceptable to both parties. I can only
conclude that your reluctance to negotiate is
politically motivated.

Your failure to use this period constructively
can be no longer allowed to operate to deprive
the Aboriginal community of the benefits of
the recommendations of Justice Toohey. I am
therefore informing you of my decision to
recommend the inclusion of the area of the
TCWCD in the Warlmanpa and Katyej land grant.

In making my decision to recommend a grant of
all of the land claim area I am also mindful
that over 3 1/2 years have expired since
Justice Toohey reported on this claim and that
all other issues of detriment have been
resolved. Further delays in granting the land
would seriously disadvantage Aboriginals in
the claim area. I am sure you would also
recognise, whatever your views on granting
public purpose lands, that it would be unjust
to change retrospectively the basis upon which
land claims were heard and dealt with.."

The claim for review

35. In support of his Application for review the applicant argues several grounds. First, he complains of what he calls the "purported decision" of the first respondent pursuant to s.11(1)(b) of the Aboriginal Land Rights (Northern Territory) Act, communicated to the Chief Minister by the letter of 23 December 1985, "to be satisfied that certain land being the land comprised in the Tennant Creek Water Control District should be granted to a single land trust to be held for the benefit of Aboriginals who are the relevant Aboriginals in relation to that land". In what senior counsel for the applicant himself describes as "a somewhat technical argument" it is said, firstly, that this "decision" is bad bacause the Minister did not, in terms, state that he was satisfied of the matters referred to in para.(b). The proposition is that any decision by the Minister to be satisfied must necessarily include a statement that the Minister was indeed satisfied. A similar submission is put in relation to any decision by the Minister to recommend a grant pursuant to para.(e) of s.11(e); the contention being that, as a decision to be satisfied under para.(b) is a necessary pre-condition to a decision to recommend under para.(e), a decision to recommend which does not disclose a decision to be satisfied is necessarily bad.

36. In relation to both paras.(b) and (e), this argument is unsound. As counsel for the first respondent points out, the Minister was not, on 23 December 1985, setting out a formal statement of the decisions he had made in relation to these land claims; and still less the reasons for those decisions. He had long ago decided in principle that the recommendations of Toohey J should be implemented. But he had been concerned to provide to the Northern Territory Government an adequate opportunity to negotiate suitable water supply arrangements with the traditional land owners, through the Central Land Council. That concern led to his correspondence with the two Chief Ministers. The letter of 23 December 1985 was merely the latest round in a prolonged exchange; important only because it was the letter in which the Minister announced his view that an adequate opportunity had now been afforded and that it was time to proceed with the grant. The Minister was merely informing the Chief Minister of the position at which he had arrived. There was no reason for him to include in such a letter his formal findings upon matters referred to in the Act; so that his failure to refer to the matters mentioned in para.(b) furnishes no basis for any inference that he was not satisfied of those matters.

37. Further, in relation only to so much of this argument as relates to para.(e), the principle is that, in any case in which a statutory power is conferred upon terms requiring the prior formation of a particular opinion by the donee of the power, it will be presumed from the exercise of that power, in the absence of evidence to the contrary, that the donee had the required opinion: see McLean Bros. & Rigg Ltd v Grice [1906] HCA 1; (1906) 4 CLR 835 at pp.849-850, 859-860, Western Stores Limited v Orange City Council (1971) 2 NSWLR 36 at pp.46-47. The principle is but an aspect of the presumption of regularity. Consequently, any indication by the Minister of a decision to proceed with a recommendation under para.(e) carries with it, in the absence of any evidence to the contrary, a presumption that he had in fact reached the satisfaction required by para.(b).

38. Secondly, in relation to the decision to be satisfied, counsel for the applicant refer to a number of matters mentioned in the letter of 23 December which they claim demonstrate that the Minister had regard to irrelevant considerations. The alleged irrelevant considerations were described in the Further Amended Application as follows:

"(a) that the Act authorises the negotiation
and conclusion of a binding agreement
between a Land Council (on behalf of
traditional owners) and a third party as
to the grant of some right title or
interest in aboriginal land to that third
party before the grant of such land is
made.

(b) that proposed legislation will
substantially accommodate the Northern
Territory's position concerning the
operation of the Control of Waters Act,
1978 and concerning future claims on
designated public purpose lands.

(c) that the Northern Territory Government
was reluctant to negotiate solely for
political reasons.

(d) that to adequately protect the Northern
Territory against the detriment
identified by the then Aboriginal Land
Commissioner would be to change
retrospectively the basis upon which land
claims were heard and dealt with."

39. In relation to (a), counsel for the applicant submits that it is not possible under the Aboriginal Land Rights (Northern Territory) Act, as it now stands, to create before the grant of land under s.12(1) an enforceable legal agreement as to the future use or management of that land. As Toohey J observed in his report, "Seven Years On", referred to by Mr Tuxworth in his letter of 7 August 1985, the power conferred by s.23(1)(e) of the Act upon Land Councils "to negotiate, on behalf of traditional Aboriginal owners of land in its area held by a Land Trust and any other Aboriginals interested in the land, with persons desiring to use, occupy or obtain an interest in that land" arises only after the land has been granted. The Act provides in s.19(3) for the grant of a lease, at the direction of the relevant Land Council, by a Land Trust to the Northern Territory Government for a public purpose. But such a lease may only, of course, be granted after the Land Trust obtains title to the land, that is to say after the grant made pursuant to s.12(1). It was for these reasons that Toohey J, in "Seven Years On", recommended legislative amendments, firstly, to permit a Land Council, with the consent of the traditional owners, to enter into a binding agreement with respect to land the subject of a claim prior to, and in anticipation of, a grant and, secondly to provide for conditional grants, especially in respect of future public purpose needs: see paras.159-169.

40. Section 14 provides that where, on the vesting of land in a Land Trust, it is being occupied by the Crown or by an authority established under a law of the Commonwealth or of the Northern Territory, the Crown or the authority is entitled to continue that occupation or use as long as may be required. There would, therefore, be no difficulty in respect of the continued use of the land for water storage and, as already pointed out, s.70 makes specific provision for access. However, as counsel says, it is not possible under the legislation -- as it now stands -- for either the Land Council or the traditional owners, or both acting together, immediately to grant to the Northern Territory Government a lease of any additional land required. The land grant must first be made. And, if the land grant was made and no lease eventuated, s.67 would preclude any compulsory acquisition by the Northern Territory Government of the desired interest. Theoretically, at least, a difficulty could arise.

41. Had the Minister approached the matter upon the basis that it was open to the Land Council, prior to grant, to enter into a legally binding commitment as to the future use of the land or as to a future lease, he would have erred in law in respect of a material matter; so that any decision to proceed with a recommendation for a grant would have been vitiated. But it is clear that the Minister was under no such misapprehension. On the contrary, the correspondence makes clear that he understood the position. The letter of 23 September 1983 from his Department specifically recognized that "neither a Land Council nor a Land Trust can be legally bound by any undertakings given before land becoming Aboriginal land". The Minister himself spelt out, in his letter of 25 October 1983, what he had in mind: "The agreement would be signed immediately after title has been granted to the Land Trust". Nothing which was said subsequently indicated any changed assumption. The reference to "a formal agreement" between the Northern Territory Government and the Land Council, in the letter of 23 December 1985, does not, as counsel suggest, imply a belief that it would immediately be possible to bind the land. The suggestion is equally consistent with a belief that there could be a formal agreement as to the negotiations to be undertaken, and perhaps the direction which would be given by the Land Council to the Land Trust when title became available.

42. The submission made in respect of item (b) in the particulars of irrelevant considerations is that, in considering his recommendation to the Governor-General, the Minister was not entitled to take into account the content of legislation which he then proposed but which was not yet in Bill form. It is conceded on behalf of the first respondent that, at 23 December 1985, no draft Bill existed.

43. I am unable to accept this submission. I do not read the Minister's letter of 23 December 1985 as indicating a view that the proposed legislation was critical to the desirability of a grant of the relevant land. The reference to proposed legislation was made in the context of a general discussion, initiated by Mr Tuxworth, relating to the operation of the Control of Waters Act upon Aboriginal land. The legislation was apparently proposed to address some of the problems identified by Toohey J in "Seven Years On". But Mr Holding never conceded that, absent such legislation, a grant of the subject land would be undesirable. On the contrary, he had consistently made clear his opinion that, because of the attitude of the Central Land Council, the problems raised by the Northern Territory Government could be satisfactorily resolved under the existing law. His ultimate conclusion was that the seriousness of potential detriment was not such as to warrant holding up the grant in the absence of an agreement.

44. The submission made on behalf of the applicant upon this aspect of the case accepts that Mr Holding would have been entitled to take into account proposed legislation once it had reached the form of a draft Bill. This is a strange distinction to be made. If it was wrong to make any assumption about future legislation, it would remain wrong notwithstanding the drafting of a Bill. There can never be a guarantee that any particular draft of legislation will survive the necessary political and legislative processes required to turn it into law.

45. Reference was made to the principle that the Executive may not, without appropriate statutory authority, abrogate the law. The principle is an old one, going back to s.1 of the Bill of Rights 1688: "That the pretended power of suspending of laws or the execution of laws by regall authority without consent of Parlyament is illegal". The Bill of Rights is in force in Australia: see The Commonwealth and Central Wool Committee v The Colonial Combing, Spinning and Weaving Company Limited [1922] HCA 61; (1922) 31 CLR 421 at p.463, Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 at p.35. The principle is also important, capable of contemporary application: see Fitzgerald v Muldoon (1976) 2 NZLR 615. But it has no application to the facts of the present case. Mr Holding decided to apply, not to suspend the operation of, the current legislation. His references to proposed legislation were no more than attempts to allay Mr Tuxworth's concern about future problems.

46. The third alleged irrelevant consideration is that the Northern Territory Government was "reluctant to negotiate solely for political reasons". This is not quite what Mr Holding said; he did not use the word "solely". But three responses are made by his counsel. The first is that, read in context, this does not appear as a reason for Mr Holding's decision to proceed with a recommendation for a grant but as a comment upon the general position taken by Mr Tuxworth. Secondly, it is said that it was open to Mr Holding to conclude from the letters of Mr Tuxworth that political considerations -- using that word not pejoratively but to include policy positions -- did underlie his reluctance to negotiate. Finally, counsel point out that the Minister may have had other information as to the attitude of the Northern Territory Government. It cannot be assumed that he was relying upon the letters alone.

47. I think that these responses are each valid. This ground of attack must be rejected.

48. The final alleged irrelevant consideration arises out of Mr Holding's reference to changing retrospectively the basis upon which the land claims were heard and dealt with. Counsel for the applicant submits that the denial of part of the land claimed would not be to change retrospectively the basis upon which the claims were dealt with. It was always possible, they say, and well known to the claimants, that the claims would fail in whole or in part.

49. This submission, it seems to me, misunderstands the point made by the Minister. The reference to retrospectivity follows immediately after the phrase "Whatever your views on granting public purpose lands". The Chief Minister's view, made clear in his letters of 12 April 1985, 7 August 1985 and 26 October 1985, was that public purpose land ought never to be granted. He was advocating a general policy position to that effect. Whatever the desirability of that policy, it does not currently find expression in the Act. So far as appears, that policy had never been adopted by either Mr Holding or any of his predecessors.

50. These particular claims had been heard, and reported upon, against the background of the need to consider the likely demand for water for Tennant Creek and the means of reconciling that demand with the Aboriginal claim to title. The parties, and the Aboriginal Land Commissioner, concentrated their attention upon the exigencies of the particular situation. So far as appears, no-one considered the possibility of a general policy to refuse the grant of all land required for public purposes. Under those circumstances it is not difficult to see why the Minister should have felt that to adopt, and to apply to these claims, such a policy would be to change retrospectively the basis upon which they were heard and dealt with.

51. Each of the grounds of attack upon the decision of the Minister pursuant to s.11(1)(b) fails.

52. As mentioned, the applicant also challenges the validity of any decision of the Minister to recommend to the Governor-General, under s.11(1)(e) of the Act, the making of land grants over the land within the Tennant Creek Water Control District; or, to take account of the possibility that there was no decision, the conduct of the Minister concerning a recommendation. But the grounds of this challenge are identical with those arising under para.(b). For the reasons I have stated, they must each be rejected.

53. It is not shown that any decision made by the Minister and reflected in his letter of 23 December 1985 to the Chief Minister, or any conduct in relation thereto, was invalid in law.

Discretion

54. The first respondent submits that the Application should be dismissed on discretionary grounds. Having regard to my view upon the merits, it is not necessary to consider this submission.

55. The Application must be dismissed with costs.