Re Daisy Majar On Behalf of Herself and On Behalf of Others of the Werat Clan and Margaret Daiyi On Behalf of Herself and On Behalf of Others of the Maranunggu Clan v the Northern Land Council [1991] FCA 209 (23 May 1991)

FEDERAL COURT OF AUSTRALIA

Re: DAISY MAJAR on behalf of herself and on behalf of others of the Werat Clan
and MARGARET DAIYI on behalf of herself and on behalf of others of the
Maranunggu Clan
And: THE NORTHERN LAND COUNCIL
No. NT G11 of 1987
FED No. 317
Aboriginal Land Rights (NT) - Administrative Law
(1991) 37 FCR 117

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Olney J.(1)

CATCHWORDS

Aboriginal Land Rights (NT) - traditional land claim - Aboriginal land - whether claim to be recognised as traditional Aboriginal owners of Aboriginal land is a traditional land claim - duty of land council to assist Aboriginals claiming to have traditional land claim

Administrative Law - judicial review - decision by land council not to recognise claimants as traditional Aboriginal owners of Aboriginal land - refusal of land council to assist claimants to present their claim - breach of rules of natural justice

Aboriginal Land Rights (Northern Territory) Act 1976, ss. 3(1), 23(1)(f), 24, 27, 50(1)(a)

Administrative Decisions (Judicial Review) Act 1977, s. 5

Acts Interpretation Act 1901, s. 15AB

Cains v Jenkins and Others, 28 ALR 219

Kioa v West, [1985] HCA 81; 159 CLR 550

HEARING

DARWIN
23:5:1991

Counsel for applicants: Mr P. Bracher

Solicitors for applicants: McCormack and Co.

Counsel for respondent: Mr S. McLaughlin

Solicitor for respondent: Senior Legal Adviser, Northern Land Council

ORDER

That the decision of the respondent on 16 October 1986 be set aside as from the date of this order.

That the matter to which the decision relates be referred back to the respondent for further consideration.

That pursuant to paragraph 23(1)(f) of the Aboriginal Land Rights (Northern Territory) Act 1976 the respondent assist the applicants in pursuing their claim to a traditional land claim to the land referred to in the decision set aside.

That the respondent pay the costs of the applicants including any reserved costs to be taxed in default of agreement.

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

DECISION

The Aboriginal Land Rights (Northern Territory) Act 1976 (the Land Rights Act) is "(a)n Act providing for the granting of traditional Aboriginal land in the Northern Territory for the benefit of Aboriginals, and for other purposes".

2. In moving the second reading of the Bill which, with some amendments, later became the Land Rights Act the then Minister for Aboriginal Affairs (Mr Viner) said:
Most of us now appreciate more sensitively than in the past

that traditional Aborigines think, feel and act about land
according to a plan of life a world apart from ours.
Traditional Aborigines associate identifiable groups of
people with particular 'countries' or tracts of territory in
such a way that the link was publicly reputed to express
both spiritual and physical communication between living
people and their 'dream time' ancestors and between the
'country' as it now is and the 'ancestral' country which had
been given its names, its physical features, its founding
stocks of food and water, and its owners and possessors by
the ancestors themselves. It is believed that ancestors
left in each 'country' certain vital powers that, used
properly by the right people, make that 'country' fruitful
and ensure a good life for people forever. Everywhere there
was a plan of life - a good and satisfying life - based on
an identifiable and unmistakable group of people forming a
descent group or 'clan', living with relation to an
identifiable territory publicly recognised as the 'country'
of the group because of the actions of ancestors who had
left in each 'country' sacred memorials - the totems and
totemic sites of which we hear so much - as proof of
entitlement for, and to guide and discipline, their
descendants. The depth of appeal that an Aboriginal's
'country' has for him can be gauged by the pictures he may
paint, the songs he may sing, the stories he may tell and
the dances he may perform. His 'country' - no matter how
stricken a wilderness it may seem to others - is to him a
Canaan, from which his spirit came and where he wants his
bones to rest.
(House of Representatives, 4 June 1976, Hansard, p 3081)

3. The Land Rights Act provided for certain land to be vested in Aboriginal land trusts to hold title on behalf of the traditional owners and other Aboriginals entitled by Aboriginal tradition to use and occupy those lands. In referring to this aspect of the Bill the Minister said:

The trusts will be title holding bodies whose actions will
be directed by the traditional owners through Land Councils.
Moreover, the creation of these Land Trusts will achieve the
primary objective of any Land Trust scheme which is the
vesting, under Australian law, of rights corresponding with
traditional Aboriginal rights, without risk that the rights
conferred are not sufficient to cover traditional Aboriginal
rights. I cannot over-emphasise the importance of this last
mentioned aspect of land rights. It is a fundamental change
in social thinking in Australia to recognise that within our
community there are some people, the Aborigines, who live by
a unique and distinct system of customary law.
(ibid, p 3082)

4. Provision is made in the Land Rights Act for the establishment of land councils, the precise functions and powers of which will be examined in detail later. However, it is of interest by way of introduction to refer again to the Minister's second reading speech in the context of a consideration of the role of land councils in the overall scheme of the Act:

The Land Councils will have important functions in relation to
Aboriginal land but we are committed to ensure that they act on the
advice and with the consent of the traditional owners so that
primary control over Aboriginal land lies with the traditional
owners. The Land Councils will represent Aboriginal traditional
owners in negotiations over land use, over mineral developments, and
the many other matters involved in the administration of Aboriginal
land. The Land Councils will not, however, be responsible for
bringing forward claims for land outside the reserves. Land
Councils will be the administrative agents of the traditional owners
and their success will depend on the extent to which they reflect
Aboriginal opinion and translate Aboriginal wishes into action. It
is because Land Councils have this specialist role that the
Government considered it would be more appropriate for other
Aboriginal organisations such as the Aboriginal Legal Aid Service to
assist in the formulation and presentation of claims for recognition
of traditional Aboriginal land.
(ibid, pp 3082-3)

5. In the course or the Bill's passage through the Parliament a number of changes were made. One change of some relevance in the present proceedings has to do with the role envisaged for the Aboriginal Legal Aid Service in assisting in the formulation and presentation of claims for recognition of traditional Aboriginal land. In a statement made to the House of Representatives during the second reading debate the Minister indicated a change of thinking in this regard. He said:

In the light of representations received from Aborigines the
Government has reconsidered its earlier decision that the councils
should not handle land claims and that the Aboriginal Legal Aid
Services instead should assist in the formulation and presentation
of claims for recognition of traditional Aboriginal land. An
amendment will provide for traditional owners who have claims on
traditional grounds to land outside reserves, and who need
assistance in pursuing their claims with the Land Commissioner, to
be assisted by the land councils.
(Hansard, 17 November 1976, p 2779)

6. This application has to do with the manner in which the Northern Land Council carried out a statutory function to identify the traditional Aboriginal owners of land which pursuant to the Act had been vested in a land trust.

7. There is something profoundly incongruous about a situation whereby the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act) - "(a)n Act relating to the review on questions of law of certain administrative decisions - has been called in aid to review the decision making process of a body established specifically to 'reflect Aboriginal opinion and translate Aboriginal wishes into action'. It is but part of the price that the descendants of the indigenous inhabitants of the Northern Territory have had to pay for the recognition of their special relationship to the land that their cultural traditions, dating back scores of millennia, are to be regulated by the legal traditions of a country barely two centuries old.
SCHEME OF THE LAND RIGHTS ACT
(a) Granting of land to land trusts

8. The legislative purpose of the Land Rights Act is achieved through the device of vesting land in Aboriginal land trusts.

9. The Minister is empowered to establish Aboriginal land trusts to hold title to land in the Northern Territory for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of the land concerned and is obliged to establish land trusts to hold certain land identified in Schedule 1 to the Act (s. 4(1)). Where a land trust has been established in respect of land described in Schedule 1, the Minister is required to recommend to the Governor-General that the land be granted in fee simple to the land trust (s. 10(1)).

10. The land in respect of which the parties are in dispute (the subject land) is part of the land described in Schedule 1 and is vested in a land trust established pursuant to section 10.

11. In addition to Schedule 1 land the Minister may recommend to the Governor-General that land recommended for grant by an Aboriginal Land Commissioner be granted to a land trust established for the purpose (s. 11). Section 12 deals with the Governor-General's power to grant land the subject of a recommendation from the Minister pursuant to sections 10 and 11.

12. The process whereby land may be the subject of a recommendation by the Aboriginal Land Commissioner is regulated by section 50 which in substance contemplates that there be an application made by or on behalf of Aboriginals claiming to have a traditional land claim to land, and that the Commissioner after inquiry shall ascertain whether the applicants or any other Aboriginals are the traditional Aboriginal owners of the land. Where he finds there are such owners, the Commissioner may make recommendations to the Minister for the granting of the land or any part of it in accordance with sections 11 and 12.

13. The terms "traditional Aboriginal owners" and "traditional land claim" are defined in subsection 3(1). Detailed reference to these definitions will be made hereunder.

14. The subject land is Aboriginal land within the meaning of the Act, it being land held by a land trust for an estate in fee simple (s. 3(1)).
(b) Establishment of land councils

15. Upon the commencement of the Land Rights Act the Minister was required to divide the Northern Territory into at least two areas and to establish a land council for each area (s. 21(1)). One of such land councils so established is the Northern Land Council (NLC), the respondent to this application. The land subject land is within the boundaries of the area for which the NLC was established.

16. A land council is a body corporate with perpetual succession and a common seal. It may acquire, hold and dispose of real and personal property and may sue and be sued in its corporate name (s. 22(1)).

17. Sections 23, 24 and 25 of the Act have particular relevance in these proceedings and are set out in full:

23. (1) The functions of a Land Council are -
(a) to ascertain and express the wishes and the opinion of
Aboriginals living in the area of the Land Council as
to the management of Aboriginal land in that area and
as to appropriate legislation concerning that land;
(b) to protect the interests of traditional Aboriginal
owners of, and other Aboriginals interested in,
Aboriginal land in the area of the Land Council;
(ba) to assist Aboriginals in the taking of measures likely
to assist in the protection of sacred sites on land
(whether or not Aboriginal Land) in the area of the
Land Council;

(Sub-paragraph (ba) was added by Act No. 40 of 1987; with effect from 5 June 1987)

(c) to consult with traditional Aboriginal owners of, and
other Aboriginals interested in, Aboriginal land in
the area of the Land Council with respect to any
proposal relating to the use of that land;
(d) where the Land Council holds in escrow a deed of grant
of land made to a Land Trust under section 12-
(i) to negotiate with persons having estates or
interests in that land with a view to the
acquisition of those estates or interests by the
Land Trust; and
(ii) until those estates or interests have been so
acquired, to negotiate with those persons with a
view to the use by Aboriginals of the land in
such manner as may be agreed between the Land
Council and those persons;
(e) to negotiate with persons desiring to obtain an estate
or interest in land in the area of the Land Council -
(i) where the land is held by a Land Trust - on
behalf of traditional Aboriginal owners (if any)
of that land and of any other Aboriginals
interested in the land; and
(ii) where the land is the subject of an application
referred to in paragraph 50(1)(a) - on behalf of
the traditional Aboriginal owners of that land
or on behalf of any other Aboriginals interested
in the land;

(Sub-sub-paragraph (ii) was added by Act No. 40 of 1987; with effect from 5 June 1987)

(f) to assist Aboriginals claiming to have a traditional
land claim to an area of land within the area of the
Land Council in pursuing the claim, in particular, by
arranging for legal assistance for them at the expense
of the Land Council;
(g) to compile and keep-
(i) a register recording the names of the members of
the Land Council; and
(ii) a register recording the names of the members of
the Land Trusts holding, or established to hold,
Aboriginal land in its area and descriptions of
each area of such Aboriginal land; and
(h) to supervise, and provide administrative or other
assistance for, Land Trusts holding, or established to
hold, Aboriginal land in its area.
(2) A Land Council may, with the approval of the
Minister, perform any functions that may be conferred on it
by a law of the Northern Territory, including, without
limiting the foregoing, functions in relation to-
(a) the protection of sacred sites;
(b) access to Aboriginal land; and
(c) schemes for the management of wildlife on Aboriginal
land.
(3) In carrying out its functions with respect to
any Aboriginal land in its area, a Land Council shall have
regard to the interests of, and shall consult with, the
traditional Aboriginal owners (if any) of the land and any
other Aboriginals interested in the land and, in particular,
shall not take any action, including, but not limited to,
the giving of consent or the withholding of consent, in any
matter in connexion with land held by a Land Trust, unless
the Land Council is satisfied that-
(a) the traditional Aboriginal owners (if any) of that
land understand the nature and purpose of the proposed
action and, as a group, consent to it; and
(b) any Aboriginal community or group that may be affected
by the proposed action has been consulted and has had
adequate opportunity to express its view to the Land
Council.
(4) ......
24. A Land Council may compile, and maintain, a register
setting out-
(a) the names of the persons who, in the opinion of the
Council, are the traditional Aboriginal owners of
Aboriginal land in the area of the Land Council; and
(b) in relation to each group of traditional Aboriginal
owners, a map or other references showing the sites
belonging to them in so far as such can be done
without breach of Aboriginal usage.

(Act No. 40 of 1987 substituted "may" for "shall" in the first line; with effect from 5 June 1987).

25. (1) This section applies to-
(a) Aboriginals;
(b) Land Trusts;
(c) Aboriginal Councils; and
(d) Incorporated Aboriginal Associations and any other
incorporated Aboriginal groups.
(2) Where a Land Council is informed that there is,
or there may arise, a dispute with respect to land in the
area of the Council between persons to whom this section
applies, the Land Council shall use its best endeavours by
way of conciliation for the settlement or prevention, as the
case may be, of that dispute.
(3) Where proceedings are commenced before a court
with respect to a dispute of a kind referred to in sub-
sub-section (2), the judge or magistrate constituting the court
may, if he thinks it appropriate, adjourn the proceedings at
any time for the purpose of affording a Land Council the
opportunity of undertaking conciliation with a view to the
settlement of that dispute.

18. The land councils are comprised of Aboriginals living in the area of the land council or whose names are set out in the register maintained in accordance with section 24, chosen by Aboriginals living in the area of the land council in accordance with such method or methods of choice, and holding office on such terms and conditions as may be approved by the Minister (s.29(1)). Up to 5 additional members, being Aboriginals living in the area of the land council may be co-opted with the Minister's consent (s.29(2)).

19. Provision is made for the election of a chairman and deputy chairman of each land council (s.30); for the convening of meetings (s.31(1), (2) and (3)); for a quorum at meetings (s.31(4)); and for the deciding of questions by a majority vote (s.31(5), (6)). A land council may, with the approval of the Minister, make rules, not inconsistent with the Act, providing for and in relation to the convening of meetings, and the procedure for the conduct of meetings, of the council (s. 31(7)). Rules so made are not statutory rules for the purpose of the Rules Publication Act (s. 31(8)). There is no evidence to suggest that any rules relevant to the matter under review have been made.

20. Subject to any direction of the member presiding, a member of a land council may be accompanied to a meeting by such other residents of the area of the land council as may wish so to accompany him (s.31(9)).
THE APPLICATION OF THE ADJR ACT

21. The particular matter giving rise to the present application is a decision made by the NLC on 16 October 1986 to recognise Aboriginal groups other than (and to the exclusion of) the applicants, and the groups they represent, as the traditional Aboriginal owners of the subject land, being part of the land vested in the Delissaville/Wagait/Larrakia Aboriginal Land Trust.

22. The decision was made in the context of a request by the applicants (and those they represent) to be named on the register kept pursuant to section 24 in respect of the subject land. At the time the decision was made section 24 required the land councils to compile, and maintain a register of the names of the persons who, in the opinion of the land council, are the traditional Aboriginal owners of Aboriginal land in the area of the land council. Since the decision was made, namely since 5 June 1987, the obligation to compile and maintain such a register has been replaced by a power to do so. This was the effect of substituting "may" for "shall" in the opening words of the section. No submission has been made in these proceedings to suggest that the outcome should in any way be affected by the amendment.

23. For the purposes of the proceedings the NLC has conceded that the decision referred to in the application is a decision to which the ADJR Act applies and that the applicants are persons aggrieved by the decision. Although these questions were not argued, the concessions appear to be soundly based and I have no hesitation in accepting that the Court has jurisdiction to review the decision in terms of the ADJR Act.
THE APPLICATION

24. The application (as amended) is to review the decision of the respondent made on or about 16 October 1986 pursuant to section 24 of the Aboriginal Land Rights (Northern Territory) Act 1976 and to review the respondent's conduct for the purposes of making its aforesaid decision whereby the respondent decided that the people of the Werat Clan and the people of the Maranunggu Clan were not the traditional Aboriginal owners of certain Aboriginal land known as Wagait in the Northern Territory of Australia and were not entitled to be named on the register of traditional Aboriginal owners of Wagait compiled and maintained by the respondent pursuant to section 24 of the Act. The foregoing, which is reproduced from the amended application, reflects the effect, rather than the substance, of the decision. The full text of the resolution appears later in these reasons.

25. It is common cause that the subject land is to some extent contiguous with part of the land the subject of the Finniss River Land Claim, an application pursuant to section 50(1)(a) heard by Mr Justice Toohey, in the capacity of Aboriginal Land Commissioner between August 1980 and May 1981.
The grounds of the application:

26. The grounds upon which the application is made, which in effect plead the facts supporting their case, are expressed as follows:

1. The applicants are Aboriginals who claim to be traditional
owners of certain land known as Wagait in the Northern
Territory of Australia which land is more particularly
identified in Schedule 1 of the Act.
2. The first applicant sues on behalf of herself and on behalf
of the members of a local descent group of Aboriginals known
as the Werat Clan.
3. The second applicant sues on behalf of herself and the
members of a local descent group of Aboriginals known as the
Maranunggu Clan.
4. For many years the applicants together with other members of
the Werat and Maranunggu clans have pursued claims for
recognition of their rights under the Act by virtue of their
traditional ownership of Wagait and in particular the
applicants have persistently requested the respondent to
record the names of the members of their clans on a register
of traditional owners in respect of Wagait as provided by
section 24 of the Act.
5. On numerous occasions the applicants requested the
respondent to assist them pursuant to section 23(1)(f) of
the Act to record and present evidence in support of their
claim that they are the traditional owners of Wagait.
6. On or about 15 October 1986 the respondent purported to
conduct a hearing to resolve the question of traditional
ownership of Wagait for the purposes of section 24 of the
Act and in particular to resolve whether the applicants and
the clans represented by them were the traditional owners or
whether the members of a group of Aborigines known as the
Kungarankany-Warai group were the traditional owners.
7. The aforesaid hearing was conducted notwithstanding that the
respondent had not afforded the applicants with any or any
adequate legal, anthropological, financial or other
assistance to enable them to present their claim.
8. The aforesaid hearing was conducted notwithstanding that the
applicants had been given no notice or no adequate or
sufficient notice of the nature of the claims of the
Kungarankany-Warai group which the applicants had to meet at
the hearing.
9. The said hearing was conducted without regard to the rules
of natural justice and in breach of the rules of natural
justice.
Particulars
(a) The proceedings were conducted in a manner that
deprived the applicants of the opportunity to become
aware of the evidence adverse to their claims.
(b) The applicants were not afforded an opportunity or any
adequate or sufficient opportunity to test or
contradict the evidence adverse to their claims.
(c) The applicants were not afforded an opportunity to
adequately present all the evidence available to them
in support of their claims.
(d) The applicants were not afforded an opportunity or any
adequate or sufficient opportunity to present reasoned
arguments in support of their claims.
(e) The respondent ignored the evidence presented by the
applicants rather than considering such evidence in a
reasonable, rational or proper manner.
10. On or about 16 October 1986 the respondent purported to make
its decision to the effect that the members of the
Kungarankany-Warai group and not the members of the clans
represented by the applicants were the traditional owners of
Wagait.
11. By letter dated 22 December 1986 the respondent purported to
give reasons for its decision.
12. The decision involved errors of law in that
(a) The respondent held that the occupation of the land by
Kungarankany-Warai people prior to the occupation of
the land by the groups represented by the applicants
was decisive of the question of traditional ownership;
(b) The respondent failed to make and identify findings of
primary fact;
(c) The respondent failed to consider and act upon the
evidence presented to it in a reasonable and rational
manner;
(d) The respondent neither accepted nor rejected the
evidence before it on any proper, reasonable or
rational grounds;
(e) The respondent failed to identify and apply the legal
principles upon which it based its decision;
(f) The respondent failed to supply any proper, adequate
and sufficient reasons for its decision and thereby
fell into an error of law;
(g) The decision was arbitrary;
(h) There was no evidence or other material to justify the
making of the decision.
13. The decision was an improper exercise of the power conferred
by the Act in pursuance of which it was purported to be made
in that:
(a) The respondent took into account irrelevant
considerations in the exercise of its power namely the
prior occupation of the land by the Kungarankany-Warai
people in the distant past;
(b) It failed to take into account relevant considerations
in the exercise of its power and in particular it
failed to take into account any of the evidence
presented by the applicants in support of their claim
that they are the traditional Aboriginal owners of the
land.
14. The applicants further say that the respondent's conduct
referred to herein including its conduct of the hearing and
the making of its decision constituted an abuse of its power
under the Act.
Particulars
(a) The applicants rely on all the facts and matters
referred to herein.

Relief sought

27. The applicants seek the following relief pursuant to the ADJR Act:

(a) An order quashing or setting aside the decision.
(b) An order directing the respondent to decide the question of
traditional Aboriginal ownership of Wagait according to law.
(c) An order directing the respondent to afford reasonable
assistance to the applicants to present their claim.
(d) An order directing the respondent to provide proper reasons
for its decision.
(e) Such further or other order as the Court deems meet or
necessary.

28. In the alternative the applicants seek an order that the respondent should show cause why Writs of Certiorari and Mandamus directed to the respondent should not issue quashing the respondent's decision made on or about 16 October 1986 and commanding the respondent to exercise according to law the functions imposed upon it by section 24 of the Aboriginal Land Rights (Northern Territory) Act 1976 in relation to the claim by the applicants that the clans represented by them are the traditional owners of Wagait.

29. The alternative relief was not specifically canvassed during the hearing of the application.
Evidence in support of the application

30. The applicants relied upon the affidavit evidence of the applicant Daisy Majar (sworn 28 October 1987), the applicant's solicitor Kenneth Alan Parish (sworn 7 December 1987), the applicant Nancy Daiyi (sworn 6 February 1988) and Pavalina Henwood (sworn 12 February 1988). In addition and by consent the following documents were admitted into evidence, namely:

a) A transcript of the meeting of the NLC held on 15 and 16 October
1986.
b) Reasons for the decision dated 22 December 1988 and 11 July 1990.
c) A statement of agreed facts.

31. The NLC relied upon an affidavit of its former director John Leonard Ah Kit (sworn 11 March 1988).

32. Each of the several affidavits has exhibited to it a large number of documents, many of which are common to both parties.

33. Neither party sought to cross-examine the various deponents.

34. The transcript of the meeting held on 15 and 16 October 1986 is far from a complete verbatim transcript of what then occurred, and in particular does not include any reference to a "secret" session at which "men's business" was discussed. However, the parties accept the transcript as being the best available record of the meeting and particular reference is made to it in the agreed statement of facts.

35. The reasons for the decision were supplied in response to requests made by the applicants pursuant to section 13 of the ADJR Act. Further reference will be made to them later.

36. The agreed statement of facts has a number of documents annexed to it which form part of the statement and in addition makes reference to other documents. The facts agreed are set out below. The comments in parenthesis represent my observations in respect of the various documents said to be annexed to the statement.

1. The members of the Northern Land Council ("NLC") who
participated in the determination, made on 15th and 16th
October 1986, which is sought to be reviewed, were chosen
and held office in accordance with s. 29 Aboriginal Land
Rights (Northern Territory) Act 1976 ("the Act").
2. The area of the Northern Territory within the jurisdiction
of the NLC was divided into 49 regions and each region is
allocated a number of members taking into account the number
of persons in each region.
3. The names of the members of the NLC who held office in
October 1986 and who attended the meeting of 15th and 16th
October 1986 are listed in Annexure A.
(The annexure identifies a total of 68 persons having attended the
meeting at some stage on either 15 or 16 October 1986. 58 persons
are shown to have been present on the afternoon of 16 October 1986.
4. The meeting was held in the basement of a building on the
Stuart Highway called the "Highway Arcade", which was and is
occupied by staff employed by the NLC.
5. The meeting was called to consider the issue of traditional
ownership of the eastern portion of the western half of the
land known colloquially as "Wagait Reserve". The Wagait
Reserve is formed by two areas of land. The area in dispute
is the eastern portion of the western part.
6. The Wagait Reserve is Aboriginal land within the meaning of
the Act, being land described in Schedule 1 to the Act,
title to which was granted to the
Delissaville/Wagait/Larrakia Aboriginal Land Trust on 30
August 1978.
7. The meeting occupied two days - the 25th and 16th October
1986. The first day was taken up with introduction of the
issues and explanation of the matters to be resolved by NLC
staff, addresses by each of the interested groups, and a
closed men's session. On the second day members of the
interested groups were excluded and the members of the
Council discussed the issue of traditional ownership between
themselves.
8. The meeting was recorded on sound-recording equipment. The
closed men's session was not recorded.
9. The quality of the tape recording is poor. The taped spoken
word is difficult to pick up because it is in competition
with an electronic hum, extraneous background noises such as
metal chairs scraping on a concrete floor and crying
children, and because of poor placement of microphones.
10. An employee of the NLC, Ms Morag Hocknull, attended the
meeting and took short-hand notes. In conjunction with
listening to the tapes she produced a documentary record of
the meeting which appears in the respondent's list of
documents as document No. 5 in part 3 of schedule 1. This
document is hereafter described as the "Hocknull document".
It is annexed as Annexure B.
11. By agreement between the parties, it was decided to attempt
a more accurate transcription of the tapes. The tapes were
processed electronically to eliminate the background noise
and to highlight the spoken word. This process was
moderately successful.
12. The processed tapes were then transcribed by staff of the
NLC. This transcript is annexed as Annexure C and is
hereafter described as "the transcript".
(The transcript was tendered as a separate exhibit and is referred
to above as one of the documents tendered by consent.)
13. The work of transcription was still extremely difficult. In
many instances it was not possible to transcribe clearly all
words spoken. Accordingly there are gaps in the transcript,
or passages which elude comprehensible transcription.
14. The identity of the speakers is not in all instances clear,
especially in that section of the transcript devoted to the
second day of the meeting.
15. Notwithstanding these difficulties, the parties accept the
Hocknull document and the transcript as reasonably accurate
records of the meeting.
16. The written or documentary material that was before the
Council at the meeting consisted of the following:
(a) a topographical map showing the Wagait Reserve, the
disputed area and areas recommended by Toohey J in the
Finniss River Land Claim Report. This map is annexed
as Annexure D.
(b) a two-page document titled "Agenda Item" setting out
the background, present situation and anthropological
view of the dispute - see Annexure E.
(c) a 6 page document entitled "Anthropology and the
Wagait Reserve" - setting out the history and summary
of anthropological research into the area - see
Annexure F.
(d) boxes of materials prepared in relation to the Finniss
River Land Claim including claim books, witness
statements, exhibits, transcript and report. These
materials are not produced. The report is exhibited
to the affidavit of Nancy Daiyi and an extract is
exhibited to the affidavit of Daisy Majar. The
complete Report is annexed here as Annexure G.
(e) a submission prepared by and on behalf of the Werat
group in support of their assertions of traditional
ownership. The submission was prepared by Mr David
Ritchie, an anthropologist employed by the Aboriginal
Sacred Sites Authority and details aspects of
spiritual affiliation and responsibilities to sites on
the area in dispute. It is exhibited to the affidavit
of Daisy Majar. It was the only written submission
received by the NLC from the interested groups.
(f) A topographical map of the area entitled "Werat
perceptions of sites and country" submitted with the
Werat Submission described in sub-paragraph (e) above.
It is annexed as Annexure H.
17. The NLC has considered issues of land ownership and land
management with respect to the Wagait Reserve on a number of
occasions. Collected at Annexure I are copies of
resolutions adopted by the Council between November 1981 and
October 1989.

Annexure E to the agreed statement ("agenda item") is reproduced in full. (Paragraph (a) of the definition of 'traditional Aboriginal owners' was incomplete on the document circulated to members.)

NORTHERN LAND COUNCIL
40TH FULL COUNCIL MEETING
14TH, 15TH, 16TH OCTOBER 1986
AGENDA ITEM
WAGAIT
Background
In December 1985, the Northern Land Council withdrew its previous
resolution about traditional ownership of the Wagait Reserve area.
The Council recommended to the Minister for Aboriginal Affairs
that the matter be heard by the Land Commissioner. The Minister
did not accept that recommendation and has asked that the issue be
settled by the Land Council.
Traditional Ownership under the Aboriginal Land Rights (Northern
Territory) Act
The Land Rights Act sets out what is required for persons to be
given the legal status of traditional owners. It says (section
3(1)) that:
'"traditional Aboriginal owners" in relation to land,
means a local descent group of Aboriginals who
(a) have common spiritual affiliations to a site on
the land, being affiliations that place the (sic)
(b) are entitled by Aboriginal tradition to forage
of right over that land;'
The Present situation
There are three groups which currently claim traditional ownership
of th eastern section of the Wagait Reserve. These groups are:
Kungarakany-Warai
Maranunggu
Werat.
Each of the groups believe themselves to the the only traditional
owners of the eastern Reserve or major portions of it. Each group
has been advised of the requirements of the Land Rights Act
(section 3(1)) and invited to make spoken or written presentations
of their position to this Council.
Anthropology and the Wagait
The role of anthropology in this case is to comment on whether or
not the groups are able to satisfy the requirements of the Land
Rights Act as set out above. On the basis of the material held by
the Bureau the anthropology view is that the Kungarankany and
Warai and the Maranunggu do satisfy the requirements of section
3(1) of the Land Rights Act with respect to the eastern side of
the Wagait. It is not possible for anthropology to go further an
rank one group's claim over the other.
At the time of writing, a late submission to the Bureau by the
Werat is expected. Council will be advised (during discussion of
this agenda item) of the anthropology view of the Werat
submission. Each group will present its own case to Council.
RECOMMENDATION
Council is requested to consider and determine, on the evidence
placed before it, who are the traditional Aboriginal owners of the
eastern Wagait.

Annexure I to the agreed statement reveals that in the period November 1981 to October 1986 questions associated with the traditional ownership of the subject land had been the subject of consideration on numerous occasions. The following extracts from the annexure are particularly relevant.
(a) Under the heading "Wagait Reserve Area: Association:

Dispute/Traditional Ownership/etc.":
Apr. 1983 The NLC resolve that the Maranunggu people are NOT
traditional owners of the Wagait area, but that the
Kungarakany, Warai and Wadjigan people are.
Further, the NLC recommends that the other Aboriginal
people resident on the Wagait Land Trust area be
permitted to continue living on this land, according
to the wishes of the traditional owners.

(b) At the 35th Executive Council Meeting of the NLC held on 24-27

September 1985 it was resolved in relation to the item "Maranunggu
Situation":
1. The Court action presently taking place be frozen until the
problems are resolved. (The court action referred to has
nothing to do with these proceedings.)
2. Ensure discussions are held between the Traditional Owners
and K. Bugg to negotiate terms of employment for Maranunggu
people.
3. A special review of the situation surrounding the Maranunggu
people be carried out by Anthropology to ascertain from
these people where they believe their land is, boundaries
and people concerned and research past information and
compile a full report of this information. Members for that
area to work closely with Anthropologists.

(c) At the 37th Full Council Meeting held on 10-12 December 1985 it

was resolved in relation to the item "Wagait":
The NLC resolve to withdraw their resolution C27/403
of April 1983, and to recommend to the Minister for
Aboriginal Affairs that the issue of Traditional
interests in the Wagait be referred to the Aboriginal
Land Commissioner.

(d) At the 38th Full Council Meeting held on 18-20 March 1986 it was

resolved in relation to the item "Cattle Mustering Wagait":
1. The Director and Officers of the Land Management Section of
the Bureau will advise the Chairman of the method of
mustering, taking into account the past record of proposed
contractors, that they believe will be in the best interests
of the Traditional Aboriginal owners on the Wagait. All
monies from mustering will be kept in an interest bearing
trust account until determination of traditional Aboriginal
owners.
2. The Minister for Aboriginal Affairs be informed that the NLC
has taken this action on behalf of the traditional Aboriginal
owners, to prevent wastage of both stock and money.
3. The Minister be asked to urgently take action as requested
on the resolution of 12 December 1985 concerning Traditional
Ownership.

(e) At the 40th Full Council Meeting on 14-16 October 1986 it was

resolved in relation to the item "Co-opted Members - Wagait":
The NLC resolve to co-opt a member to represent
Wagait; such member to be elected to cover the people
not already represented on the Council.
At the same meeting in relation to the item "Wagait" it was
resolved:
First: The NLC request that any members having an interest in
the subject being discussed leave the meeting, in
fairness to those other people not represented.
Then: 1) The Northern Land Council finds that the Traditional
Aboriginal owners of the land on the Eastern side of
the area known as Wagait being the land shown in blue
on the map attached to the minutes, are the
Kungarakany-Warai group.
2) The Northern Land Council finds that the Maranunggu
and Werat groups are groups of Aboriginals who,
according to Aboriginal tradition, are entitled to
enter upon that land and to use and occupy that land.
3) The Northern Land Council recommends to the
Kungarakany-Warai group that a lease or leases of a
reasonable area be granted to each of the Marananggu
and Werat groups.
The last group of resolutions constitute the decision which the
applicants seek to have reviewed.

THE MEETING

37. The transcript provides a reasonably comprehensible record of the form and substance of the proceedings of the NLC on 15 and 16 October 1986. The inadequacies of the record have already been adverted to but need not be developed upon.

38. As part of the respondent's submissions counsel tendered a document entitled "Index to Transcript" which purports to be a summary, by reference to relevant page numbers and in some cases by reference to the Hocknull document, of the proceedings on 15 and 16 October 1986, but not of the closed men's session held on the afternoon of 15 October 1986. This index appears to give an accurate overview of what took place at the meeting and I have found it useful in my consideration of this case.

39. The following observations can be made with confidence. The meeting was well attended and capably chaired. The purpose of the meeting was lucidly explained by the chairman at the outset and he was followed first by the Director of the NLC who read the agenda (and in so doing correctly quoted the full definition of 'traditional Aboriginal owners'), then by the NLC's principal legal adviser who explained the procedures to be followed at the meeting and finally by the NLC's senior anthropologist who explained to the meeting the views of the anthropology branch on the issues of traditional ownership as they arose in the dispute between the several groups. The meeting was then addressed in turn by representatives of the several claimant groups who put their respective cases and responded to questions from council members. On the afternoon of the 15 October 1986, initially at the suggestion of the principal spokesman for the Maranunggu group claimants, but by common consent, a session was held from which women were excluded. It is common cause that it was entirely appropriate that certain matters relating to ceremonial matters which by tradition are the particular concern of males should be discussed in this way and that there should be no record of those discussions. On the second day of the meeting the council members discussed the issues at considerable length, but not before it was resolved that members who had an interest in the subject under discussion should leave the meeting. This resolution was couched in terms of a request rather than as a direction. Clearly, the members concerned were entitled pursuant to the Act to be present and vote, but as it happened they complied with the resolution. In the course of the debate the senior anthropologist addressed the meeting again and made some reference to the information that had been discussed on the previous day during the closed men's session, and later the legal adviser responded to questions as to the meaning of a provision in the Act. In the end, a motion was put and agreed to without dissent from the members then present.

40. I do not understand it to be said on behalf of the applicants that there was anything unfair or oppressive about the manner in which the meeting was conducted.
THE GROUNDS

41. The grounds of the application for review as set out in the amended application contain to a large extent assertions of fact. I refer in particular to grounds 1 to 8 (inclusive) and grounds 10 and 11.

42. In terms of section 5 of the ADJR Act the grounds asserted in the application can conveniently be categorised as

(a) a breach of natural justice occurred in connection with the
making of the decision;
(ADJR Act s. 5(1)(a))
(b) the decision involved errors of law;
(ADJR Act s. 5(1)(f))
(c) the making of the decision was an improper exercise of
power; (ADJR Act s. 5(1)(e))

43. (The amended application raises as a separate ground an assertion that the decision constituted an abuse of power and relies upon the same particulars as for (c) above. The abuse of power ground is merely one manifestation of 'improper exercise of power' - ADJR Act s.5(2)(j)).
(a) Denial of Natural justice

44. Ground 9 directly raises the issue of denial of natural justice. In the particulars to ground 9 the applicants complain that they had no opportunity to become aware of evidence adverse to their claims, that they had no opportunity to properly test or contradict adverse evidence, that they had no opportunity to present all of the available evidence to support their claims, that they had no opportunity to present reasoned arguments to support their claim and that the NLC ignored the evidence presented by them. The latter complaint is raised in a slightly different form under ground 13 (improper exercise of power).

45. The several matters raised under this ground are very much interdependent. The period of notice of the meeting was in fact several months and there would seem to be no doubt that had the sort of assistance been given which is normally available in the presentation of a traditional land claim, the applicants' cases could have been adequately prepared in that time. Similarly, the manner in which the meeting was conducted seems not to have been inappropriate in the circumstances as they occurred but it might reasonably be expected that had the claims been presented differently the proceedings could well have taken a different form. What in substance seems to be the applicants' case is that they were denied the resources necessary to prepare and present their cases to the NLC, and thereby the essential element of fairness which they were entitled to expect would prevail in the proceedings was denied them.

46. It is central to the applicants' argument that paragraph 23(1)(f) imposed an obligation on the NLC to provide them with both legal and anthropological advice and assistance in pursuing their claims to be recognised as traditional Aboriginal owners of the subject land. At the core of this claim is that the applicants (and the groups they represent) were "Aboriginals claiming to have a traditional land claim to an area of land within the area of the land council".

47. The term "traditional land claim" is defined in subsection 3(1) to mean in relation to land

"a claim by or on behalf of the traditional Aboriginal owners of
the land arising out of their traditional ownership."

48. This definition seems to presuppose that the status of the claimants as traditional Aboriginal owners is already established in which case a claim to be recognised as the traditional Aboriginal owners of land would not come within the scope of the term traditional land claim. Whilst that may be a construction open on the words used, it is one that cannot be sustained in the context of the other provisions of the Act.

49. The statutory definition of the term traditional Aboriginal owners is itself not without difficulty. Subsection 3(1) of the Land Rights Act provides:

"traditional Aboriginal owners", in relation to
land, means a local descent group of Aboriginals who-
(a) have common spiritual affiliations to a site on
the land, being affiliations that place the
group under a primary spiritual responsibility
for that site and for the land; and
(b) are entitled by Aboriginal tradition to forage
as of right over that land;

50. The definition involves separate concepts of 'local descent group', 'common spiritual affiliations to a site' and 'primary spiritual responsibility', none of which are afforded a statutory definition. They are nevertheless concepts which must each be addressed on every occasion when any claim to traditional Aboriginal ownership is made.

51. Subsection 50(1), in dealing with the functions of the Aboriginal Land Commissioner provides, inter alia,

50. (1) The functions of a Commissioner are-
(a) on an application being made to the Commissioner by or
on behalf of Aboriginals claiming to have a
traditional land claim to an area of land, being
unalienated Crown land or alienated Crown land in
which all estates and interests not held by the Crown
are held by, or on behalf of, Aboriginals-
(i) to ascertain whether those Aboriginals or any
other Aboriginals are the traditional Aboriginal
owners of the land; and
(ii) to report his findings to the Minister and to
the Administrator of the Northern Territory,
and, where he finds that there are Aboriginals
who are the traditional Aboriginal owners of the
land, to make recommendations to the Minister
for the granting of the land or any part of the
land in accordance with sections 11 and 12;

52. The foregoing provisions contemplate that an application made "by or on behalf of Aboriginals claiming to have a traditional land claim" may result in a finding by the Commissioner that there are no traditional Aboriginal owners of the land. In such a case it could be said that the claim to have a traditional land claim fails, or in other words that the claimants do not have a traditional land claim. What all this amounts to is that the Act uses the concept of "Aboriginals claiming to have a traditional land claim to an area of land" to encompass the situation where the claimants are seeking to establish their status as traditional owners. The same words are used in both paragraph 50(1)(a) and paragraph 23(1)(f).

53. In the case of a claim to a traditional land claim to unalienated Crown land and to alienated Crown land in which all interests not held by the Crown are held by or on behalf of Aboriginals, the Act provides a procedure by way of an application to the Commissioner for the determination of the question of whether the claim is valid, and this is resolved by the Commissioner's findings as to whether there are any traditional Aboriginal owners of the land.

54. I can detect no logical reason to distinguish between a claim made by or on behalf of Aboriginals to have a traditional land claim to an area of Aboriginal land and such a claim to unalienated Crown land on alienated Crown land of the type referred to in paragraph 50(1)(a). Different procedures are required to obtain the necessary recognition, but otherwise both seem to fall comfortably within the concept of a claim to have a traditional land claim.

55. The applicants in this case are clearly Aboriginals who have asserted over a long period that they are traditional Aboriginal owners of the subject land. There has been no occasion for them to make an application under paragraph 50(1)(a) in respect of that land, this for the reason that upon becoming Aboriginal land, it was no longer Crown land as defined in subsection 3(1). The only avenue open to the applicants to secure the recognition they seek is to obtain that recognition from the land council, preferably by having their names recorded on the register referred to in section 24.

56. In the course of argument counsel for the NLC referred to the Minister's second reading speech and to the statement made on 17 November 1976. There can be no doubt that the inclusion of paragraph 23(1)(f) resulted from a change in government policy. Originally it was not intended to give the land councils responsibility for "bringing forward claims for land outside reserves", but this intention was reversed by an amendment to "provide for traditional owners who have claims on traditional grounds to land outside reserves, and who need assistance in pursuing their claims with the Land Commissioner, to be assisted by the land councils". The Minister obviously had in mind the provision of assistance in relation to applications under section 50, and the amendment (in the form of paragraph 23(1)(f)) certainly achieved that purpose. The fact is that upon the ordinary meaning of the words used, in the context of the Act, the amendment went further, but there is nothing in any of the material to support a conclusion that if the Parliament's mind had been directed to a case like the present, it would have made any different provision. In any event this does not appear to be an appropriate occasion to refer to extrinsic material as an aid to construction. Section 15AB of the Acts Interpretation Act 1901 sanctions the consideration of extrinsic material in three circumstances, namely

(a) to confirm that the meaning of the provision is the ordinary
meaning conveyed by the text of the provision taking into
account its context in the act and the purpose and object of
the act;
(b) to determine the meaning of the provision when the provision
is ambiguous or obscure; and
(c) to determine the meaning of the provision when the ordinary
meaning conveyed by the text of the provision taking into
account its context in the act and the purpose or object
underlying the act leads to a result that is manifestly
absurd or is unreasonable.

57. In my view none of these circumstances are applicable. The provision in question is neither ambiguous nor obscure, nor does the ordinary meaning of the words used in the context of the legislation lead to a result that is manifestly absurd or unreasonable. Quite the contrary, the provision seems apt to promote one of the underlying purposes of the act namely to achieve the "vesting, under Australian law, of rights corresponding with traditional Aboriginal rights, without risk that the rights conferred are not sufficient to cover traditional Aboriginal rights" (Hansard, 4 June 1976, p 3082).

58. If the legislative intent expressed in paragraph 23(1)(f) was indeed somewhat narrower than the ordinary meaning of the words convey, then in the absence of any qualifying words, in an act which is clearly part of a scheme of beneficial legislation of unique proportions, that intent has miscarried.

59. In my opinion, upon a proper construction of the Act, the function of the land council specified in paragraph 23(1)(f) applies equally for the benefit of the applicants as to Aboriginals seeking to make an application pursuant to subsection 50(1). The substantial question which arises in these proceedings is therefore whether the NLC was under a duty to provide the applicants with the type of assistance referred to in paragraph 23(1)(f), and if so, whether by failing to perform that duty a breach of the rules of natural justice occurred in connection with the making of the decision which would justify this Court exercising its powers to interfere with that decision.

60. With the wisdom of hindsight it may well have been preferable if some challenge had been mounted at the time to the decision by the land council to refuse the assistance sought by the applicants, but that course was not adopted.

61. Section 23 sets out the functions of a land council. There is a clear difference between a function and a power. Section 27(1), which deals with the powers of the land council, expresses that it "may do all things necessary or convenient to be done for or in connexion with the performance of its functions". The traditional distinction between the objects and powers of a body corporate is well established but in the case of a statutory corporation, the specification of functions as distinct from objects suggests that Parliament intends that the corporation has a duty, rather than authority, to perform those functions. And this view is fortified by a close examination of the nature of the functions specified. Paragraph (f) aside, it is not unreasonable to conclude that the functions set out in subsection 23(1) are functions which the Parliament intended that land councils be obliged to carry out. Further, subsection 23(3) imposes obligations as to the manner in which it is to carry out its functions with respect to any Aboriginal land in its area and these are expressed in imperative terms. On the other hand, subsection 23(2) seems to contemplate that in respect of functions conferred by Territory law, a land council has a discretion as to whether or not they should be performed.

62. My analysis of the relevant provisions of the Act leads me to the conclusion that by virtue of paragraph 23(1)(f) the NLC was under a statutory obligation to assist the applicants in pursuing their claim to be recognised as the traditional Aboriginal owners of the land in question, and in particular, it was obliged to arrange for legal assistance for them at the expense of the land council.

63. It is common cause that the NLC did not provide the type of assistance contemplated by paragraph (f). The question which now arises is whether the failure of the land council to perform its statutory function resulted in a breach of the rules of natural justice occurring in connection with the making of the decision.

64. There is undisputed evidence before me to establish that
(a) The applicant Daisy Majar and other members of the Werat group

have consistently since about 1979 pursued their claim to be
recognised as traditional Aboriginal owners of the subject land.

(b) From about 1983 onwards they had the benefit of legal advice and

assistance from a firm of solicitors at their own expense but
their capacity to pursue legal remedies has been limited by the
cost involved.

(c) Since July 1983 they have from time to time sought legal

assistance from the NLC and from other sources including the North
Australian Legal Aid Service, but have been unsuccessful.

(d) In the period from about July 1986 to October 1986 their

solicitors gave advice and assistance in preparing a submission
which was later put before the NLC meeting in October 1986. This
submission included only limited anthropological material.

(e) They were unable to afford the expense of having any substantial

anthropological research carried out or of having legal
representation at the meeting in October 1986.

(f) The applicant Nancy Daiyi and other members of the Maranunggu

group have consistently sought recognition as traditional
Aboriginal owners of the same land. (The claims of the Werat and
Maranunggu groups are mutually exclusive of both each other and of
the claims of the group recognised by the NLC.)

(g) The Maranunggu group was separately represented by counsel during

the Finniss River Land Claim heard by Mr Justice Toohey in 1980
and 1981. Their representation was paid for by the NLC after the
Commissioner perceived that they had a conflict of interest with
other groups being represented by the NLC. They were successful
in being found by Toohey J to be the traditional Aboriginal owners
of land immediately adjacent to the subject land.

(h) In April 1984 solicitors acting for the Maranunggu group sought

funding from the NLC to pursue the claim, but were refused.
Similar requests subsequently made have been unsuccessful.

65. It is a matter of public record (in the form of reports of successive Aboriginal Land Commissioners tabled in Parliament) that since the Land Rights Act came into force in January 1977, each application made pursuant to section 50 in respect of which a Commissioner has conducted an inquiry, has been presented by one or more legal practitioners representing the claimant groups. On occasions, as in the case of the Finniss River Land Claim, groups with competing interests have been separately represented by legal practitioners. Furthermore, it is clear from the comments made in Parliament by the Minister for Aboriginal Affairs that it has always been in contemplation that claimants would have the benefit of legal assistance in the presentation of traditional land claims. And there is good reason why this should be so.

66. Not the least reason is that the concept of traditional Aboriginal ownership of land, as defined in the Land Rights Act, is particularly complex. It is a statutory expression of what was no doubt thought to be a common idea among traditional Aboriginals, but ultimately it is part of the statute law of Australia and must be construed accordingly. The role of legal advisers in the area of land claim presentation is not in question. Indeed, throughout the NLC meeting held on 15-16 October 1986 the NLC had the assistance of its senior legal adviser who took an active part in the proceedings.

67. It is my conclusion that the applicants and the groups they represented were desirous of having their respective claims put to the NLC meeting by a legal practitioner, that this was a reasonable wish given the complexity of the issues and the past history of land claim inquiries, that had they sought to be legally represented at the meeting they could reasonably have expected that the NLC would have permitted such representation, that they were not so represented because of their inability to meet the cost involved and that refusal of the NLC to meet its statutory obligation to provide assistance denied the applicants and those they represent the opportunity to have their respective cases prepared and presented to the best advantage.

68. The refusal of the NLC to fulfil its obligations under paragraph 23(1)(f) is not the same as a refusal on the part of a decision maker to allow an interested participant to be represented by counsel and to cross-examine witnesses, but the practical effect is the same. In Cains v Jenkins and Others 28 ALR 219, in dealing with an appeal relating to the proceedings of the committee of an industrial union, J.B. Sweeney and St. John JJ, said at p 230:

The appellant's capacity to look after himself before the
committee in the matter under appeal was assessed by
Northrop J. His finding is referred to above. His Honour's
approach was correct. Whether a deaf mute or a migrant with
no English should have representation is a question that
could have a different answer to the same question about
Queen's Counsel. On the authorities there is no absolute
right to representation even where livelihood is at stake.
But that is not to say that in all cases a tribunal can
refuse it with impunity. The seriousness of the matter and
the complexity of the issues, factual or legal, may be such
that refusal would offend natural justice principles.

69. I would adopt this passage as being equally apposite to the case under consideration. Although nobody's livelihood was at stake and there was no denial of the right to be represented, the capacity of the applicants to look after themselves was seriously eroded by their lack of legal and anthropological assistance. The issues were matters of the gravest concern to the parties involved. They involved questions going to the spiritual responsibilities of the competing claimants. And they were questions which arose in the framework of a unique piece of legislation. The issues of fact and law were extremely complex.

70. The legislative policy behind paragraph 23(1)(f) of the Land Rights Act is to ensure that Aboriginals seeking to obtain recognition of their claimed status as traditional Aboriginal owners of land should receive assistance. It is implicit in the paragraph that such assistance will involve expense and whilst legal assistance is referred to in particular, the paragraph is clearly wide enough to embrace all relevant assistance needed to pursue the claim. This would obviously include the assistance of anthropologists and other experts knowledgeable in appropriate fields of learning.

71. The common law duty of the NLC to act fairly in the matter of the applicants' claim to be named on the register of traditional Aboriginal owners is compounded by the statutory duty imposed by paragraph 23(1)(f). Procedural fairness does not start at the opening of the meeting. It involves all of the necessary preparatory steps required to enable the presentation of cogent and relevant evidence and reasoned argument. The NLC had the duty to provide the resources for those steps to be taken and its denial of those resources has, in my opinion, denied the whole process of decision making of that essential element of fairness upon which the applicants were legitimately entitled to rely.

72. It is patent from correspondence exchanged between officers of the NLC and the applicants and those representing them over a period of many years, that the attitude adopted by the NLC throughout has been that on a proper construction of paragraph 23(1)(f) it had no obligation to assist the applicants in the type of claim they were making. The NLC view has always been that paragraph 23(1)(f) applies in respect of the pursuit of a traditional land claim by way of an application under section 50(1). Clearly, the construction which I have adopted could give rise to problems. The paragraph would appear to be open ended and if strictly construed may cast an obligation on the NLC to assist all Aboriginals seeking to pursue a claim to a traditional land claim however unmeritorious that claim may be. I do not think that such a conclusion necessarily follows. A refusal to assist a patently unmeritorious claim would be unlikely to amount to a denial of natural justice. In simple terms, it would not be unfair. But that case is not this case. Here there were three claimant groups, each seeking to assert exclusive claims as traditional Aboriginal owners to the same land. The NLC's own researchers had examined the competing claims over many years and the opinion of its senior anthropologist as expressed to the meeting on 15 October 1986 was:

So in conclusion then, the anthropology branch of the Bureau of the
Northern Land Council, says that the Kunarakany/Warai and Marranungu
satisfy the requirements of the Land Rights Act for traditional
ownership in the eastern part of the Wagait reserve. On the
information available it appears also that the Werat satisfy those
requirements.
(Transcript p 15)

73. Contemporary law reports both in Australia and the United Kingdom abound with dicta explaining the idea of natural justice. Two brief extracts from the judgment of Mason J (as he then was) in Kioa v West [1985] HCA 81; 159 CLR 550 can be quoted as examples of current thinking. At p 582 of the report His Honour said:

It is a fundamental rule of the common law doctrine of natural
justice expressed in traditional terms that, generally speaking,
when an order is to be made which will deprive a person of some
right of interest or the legitimate expectation of a benefit, he is
entitled to know the case sought to be made against him and to be
given an opportunity of replying to it:

and at pp 583-4:

It has been said on many occasions that natural justice and fairness
are to be equated: see, e.g. Wiseman v Borneman (1971) AC 374;
Bushell v Secretary of State for the Environment [1980] UKHL 1; (1981) AC 75. And
it has been recognized that in the context of administrative
decision-making it is more appropriate to speak of a duty to act
fairly or to accord procedural fairness. This is because the
expression "natural justice" has been associated, perhaps too
closely associated, with procedures followed by courts of law. The
developing application of the doctrine of natural justice in the
field of administrative decision-making has been very largely
achieved by reference to the presence of characteristics which have
been thought to reflect important characteristics of judicial
decision-making. The effect of Atkin L.J.'s influential
observations in R v Electricity Commissioners; Ex parte London
Electricity Joint Committee Co. (1920) Ltd (1924) 1 KB 171, was to
focus attention on those elements in the making of administrative
decisions which are analogous to judicial determination as a means
of determining whether the rules of natural justice apply in a
particular case. The emphasis given in subsequent decisions to the
presence and absence of these characteristics diverted attention
from the need to insist on the adoption in the administrative
process of fair and flexible procedures for decision-making,
procedures which do not necessarily take curial procedures as their
model: see Re Nicholson and Haldimand-Norfolk Regional Board of
Commissioners of Police (1978) 88 DLR (3d) 671.
The law has now developed to a point where it may be accepted that
there is a common law duty to act fairly, in the sense of according
procedural fairness, in the making of administrative decisions which
affect rights, interests and legitimate expectations, subject only
to the clear manifestation of a contrary statutory intention.

74. If ever there was a case in which the various claimants were entitled to expect that as a matter of basic fairness the NLC would honour its obligation to assist them in the pursuit of their claims, this was it. I have no hesitation in concluding that in the particular circumstances of the case a breach of the rules of natural justice occurred in connection with the making of the decision.
(b) Error of Law

75. Although my earlier conclusions are sufficient to entitle the applicants to relief, I propose to comment briefly on some aspects of the other grounds raised. I will do so by expressing brief conclusions rather than canvassing all of the arguments raised. I do this in case it be later found that I have misconstrued the statutory duty of the NLC under paragraph 23(1)(f) and thus arrived at my conclusion on a false premise.

76. Paragraph 12 of the amended application particularises 8 errors of law which are said to be involved in the decision. Full details appear earlier in these reasons. For the most part the errors pleaded reflect the criticisms that have been made on behalf of the applicants of the written reasons provided by the NLC in response to a request made pursuant to section 13 of the ADJR Act. Whilst much of this criticism appears readily open, the reality of the situation is first that the "reasons" supplied were not the reasons of the meeting but the perception of an officer of the NLC as to the reasons which motivated the council members voting as they did and second, it is not possible to expect that a decision which reflects the combined conclusions of nearly 60 members of the land council will necessarily be based upon findings and reasoning common to all participants in the meeting.

77. One thing that is clear from the transcript is that the issues were debated at length by a significant number of individuals, in a manner appropriate to the occasion. Decision making by the democratic process may not be part of the Aboriginal tradition, but nevertheless the proceedings were clearly conducted in an orderly manner under the guidance of a competent chairman and reflect nothing but credit on the participants, a conclusion not always capable of being drawn from the proceedings of other democratic institutions.

78. Given that at an early stage of the meeting the statutory definition of traditional Aboriginal owners was read to the meeting and shortly thereafter the NLC's senior anthropologist made the statement quoted above, the applicants cannot in my view maintain the assertions of error of law. Any one of several conclusions was open to the meeting upon the evidence and information presented to it. That it arrived at a particular conclusion does not indicate that it fell into the errors alleged.
(c) Improper exercise of power

79. Ground 13 asserts that the NLC took into account irrelevant considerations and failed to take into account relevant considerations, and in particular failed to take into account any of the evidence of the applicants. For reasons similar to those canvassed above, I do not think that either conclusion can be supported by the record of the proceedings. By the same token, there is nothing to support the suggestion that the decision represented an abuse of power.
CONCLUSION

80. Subsection 25(3) of the Land Rights Act empowers me, if I think it appropriate, to adjourn these proceedings at any time for the purpose of affording the NLC the opportunity of undertaking conciliation with a view to the settlement of the dispute between the three groups of Aboriginal claimants, but the evidence adduced makes it clear to me that the competing claims are irreconcilable. They are claims which go to the very root of the spiritual beliefs of the people concerned and are not amenable to compromise. For this reason I have considered, but rejected, the option afforded by subsection 25(3).

81. The applicants having established a ground for the review of the NLC decision, and there being no circumstance which suggests that I should do otherwise, I order as follows:
1. That the decision of the NLC of 16 October 1986 be set aside as

from the date of this order.

2. That the matter to which the decision relates be referred back to

the NLC for further consideration.

3. That the NLC assist the applicants in pursuing their claim to a

traditional land claim to the subject land, in particular, by
arranging for legal assistance for them at the expense of the NLC.

4. That the respondent pay the costs of the applicants including any

reserved costs to be taxed in default of agreement.