Lansen v Northern Territory of Australia [2004] FCAFC 257 (14 September 2004)

Last Updated: 15 September 2004

FEDERAL COURT OF AUSTRALIA

Lansen v Northern Territory of Australia [2004] FCAFC 257

ABORIGINES – Land Rights – Traditional land claims – Pastoral lease – Challenge to pastoral lease based upon events occurring before land claim ever made – Effect of indefeasibility provisions – Improper Purpose






Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)
Real Property Act 1886 (NT)


Lansen v Olney [1999] FCA 1745; (1999) 100 FCR 7 cited
R v Toohey; Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170 cited
R v Kearney; Ex parte Northern Land Council [1984] HCA 15; (1984) 158 CLR 365 cited
R v Kearney; Ex parte Japanangka [1984] HCA 13; (1984) 158 CLR 395 cited
Attorney-General for the Northern Territory v Hand, Minister for Aboriginal Affairs (1989) 25 FCR 345 cited
Attorney-General for Northern Territory v Olney [1989] FCA 325 cited













HARRY LANSEN, GORDON LANSEN AND FREDDY RAGGATT ON BEHALF OF PERSONS CLAIMING TO BE THE TRADITIONAL ABORIGINAL OWNERS OF BILLENGARRAH STATION v NORTHERN TERRITORY OF AUSTRALIA, NORTHERN TERRITORY LAND CORPORATION AND HONOURABLE HOWARD OLNEY QC AS ACTING ABORIGINAL LAND COMMISSIONER
NTD 5 of 2004

BLACK CJ, MOORE AND HELY JJ
14 SEPTEMBER 2004
MELBOURNE (HEARD IN DARWIN)

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	NTD 5 OF 2004

BETWEEN:	HARRY LANSEN, GORDON LANSEN AND FREDDY RAGGATT ON BEHALF OF PERSONS CLAIMING TO BE THE TRADITIONAL ABORIGINAL OWNERS OF BILLENGARRAH STATION APPLICANTS
AND:	NORTHERN TERRITORY OF AUSTRALIA FIRST RESPONDENT NORTHERN TERRITORY LAND CORPORATION SECOND RESPONDENT HONOURABLE HOWARD OLNEY QC AS ACTING ABORIGINAL LAND COMMISSIONER THIRD RESPONDENT
JUDGES:	BLACK CJ, MOORE AND HELY JJ
DATE OF ORDER:	14 SEPTEMBER 2004
WHERE MADE:	MELBOURNE (HEARD IN DARWIN)

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the costs of the respondents.









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

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	NTD 5 OF 2004

BETWEEN:	HARRY LANSEN, GORDON LANSEN AND FREDDY RAGGATT ON BEHALF OF PERSONS CLAIMING TO BE THE TRADITIONAL ABORIGINAL OWNERS OF BILLENGARRAH STATION APPLICANTS
AND:	NORTHERN TERRITORY OF AUSTRALIA FIRST RESPONDENT NORTHERN TERRITORY LAND CORPORATION SECOND RESPONDENT HONOURABLE HOWARD OLNEY QC AS ACTING ABORIGINAL LAND COMMISSIONER THIRD RESPONDENT

JUDGES:	BLACK CJ, MOORE AND HELY JJ
DATE:	14 SEPTEMBER 2004
PLACE:	MELBOURNE (HEARD IN DARWIN)

REASONS FOR JUDGMENT

THE COURT:

Introduction

1 This is an application for judicial review of a decision made on 24 March 2004 by the Acting Aboriginal Land Commissioner ("the Commissioner", a term we also use to describe the occupant of the office from time to time). The application is made under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") and s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act"). The Commissioner was appointed under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("the Land Rights Act"). Generally, the role of the Commissioner under the Land Rights Act is to inquire into applications made by or on behalf of Aboriginals claiming to have a traditional claim to land in the Northern Territory which is either 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: s 50(1)(a) of the Land Rights Act.

2 On 29 May 1997, the Northern Land Council ("the NLC") made application under s 50(1)(a) of the Land Rights Act on behalf of Aboriginals claiming to have a traditional claim to unalienated Crown land (Northern Territory Portion 1323, the subject of Perpetual Pastoral Lease 1069) known as Billengarrah ("the claimed land"). Those claimants are the applicants in these proceedings. On 24 March 2004, the Commissioner determined that at all relevant times there was no function to be performed under the Land Rights Act, as the claimed land could not be described, for the purposes of s 50(1)(a) of the Land Rights Act, as unalienated Crown land or alienated Crown land in which all estates and interests not held by the Crown were held by, or on behalf of, Aboriginals.

3 The applicants have maintained before the Commissioner, and do so in these proceedings, that the claimed land was unalienated Crown land when the claim was made. The relevant facts they rely on are, in summary, as follows. The claimed land was transferred to the Northern Territory by the Commonwealth Development Bank of Australia, exercising the power of sale under the Real Property Act 1886 (NT) ("the Real Property Act"), on 21 July 1993. The consideration paid for the transfer was $250,000. The interest in the claimed land that was transferred was a perpetual pastoral lease, and as a result of the transfer, the claimed land became unalienated Crown land. Approximately ten minutes later, the applicants contend, the leasehold interest in the claimed land was transferred to the Northern Territory Land Corporation ("the NTLC") for no consideration. The NTLC is a body corporate established under the Northern Territory Land Corporation Act 1986 (NT) ("the Land Corporation Act") with the function of acquiring, holding and disposing of real and personal property (including estates and interests in property). Although the NTLC is a statutory body, and not the Crown, and not subject to Ministerial control and direction (s 4(2) and s 6 of the Land Corporation Act), the applicants contend that the transfer to the NTLC can be impugned, and that the land was accordingly unalienated Crown land at the time the claim was made on 29 May 1997.

History of the dispute about whether the claimed land was unalienated Crown land

4 The applicants' contention that the claimed land was unalienated Crown land resulted in several determinations by the Commissioner and litigation in this Court. While we use the word "determination" (as did the Commissioner), it is not intended to suggest thereby that the step taken by the Commissioner had any particular legal significance. It was first argued by the applicants that the chain of title could be impugned because the prior holder of the lease, the Northern Territory, was not empowered by the Pastoral Land Act 1992 (NT) ("Pastoral Land Act") to take a transfer of the lease from the mortgagee exercising its power of sale. It was also argued that certain procedural requirements of the Pastoral Land Act had not been complied with, rendering ineffective the transfer to the NTLC. These issues resulted in a determination of the Commissioner of 28 September 1998. The Commissioner determined that:

‘The [NTLC]:

a) is not an emanation of the Crown in the right of the Northern Territory,

b) has a valid and absolute and indefeasible title to an estate and interest in leasehold in the claimed land;

The claimed land is not, nor was it at 29 May 1997, either "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".

The application made to the Aboriginal Land Commissioner on 29 May 1997 is not an application of the type referred to in s 50(1)(a) of the Land Rights Act and the Aboriginal Land Commissioner has no function to perform in relation to it.’

5 The applicants sought judicial review of this determination under the Judiciary Act. On 17 December 1999, a Full Court dismissed the application: see Lansen v Olney [1999] FCA 1745; (1999) 100 FCR 7 ("Lansen’s case"), and on 14 April 2002 the High Court dismissed an application for special leave to appeal.

6 In the Full Court, French J and Sackville J gave separate and comprehensive reasons for judgment. Tamberlin J agreed, in substance, with Sackville J. French and Sackville JJ adopted different approaches but French J agreed with Sackville J on the question of indefeasibility (though on the approach of French J, it was unnecessary to decide that issue). Sackville J concluded (at [140]):

‘In my opinion, upon registration of the Territory as proprietor of PPL 1069, [the claimed land], it acquired an indefeasible title to PPL 1069. For the reasons given by French J, I agree that there was no impediment to the Land Corporation taking and registering a transfer of PPL 1069 from the Territory. Since the Territory had an indefeasible title to PPL 1069, the Land Corporation’s status as a volunteer is immaterial. It acquired a good title to PPL 1069 upon registration of the transfer from the Territory. It follows that the Commissioner was correct to conclude that he had no jurisdiction to perform in relation to the application.’

7 One issue which arose before the Full Court was whether the applicants could amend the pleadings to raise the question whether the transfer of the claimed land was for an improper or extraneous purpose. This application to amend was refused. French J said (at [68]-[69]), with Tamberlin and Sackville JJ agreeing:

‘The proposed amendments raised substantial factual issues which were not before Olney J. It was never put to his Honour that such allegations were in contemplation by the applicant. They would go, if established, to demonstrate that on another basis altogether from that debated before Olney J [the Commissioner] and this Court, the transfer to the NTLC should be held invalid. The applicants have approached this issue on the basis that the Commissioner could not have been asked to deal with the question of improper purposes as it would have involved the exercise of judicial power. Plainly enough it would be open to the applicants, subject to questions of limitation, to take proceedings in the Supreme Court of the Northern Territory seeking to impugn the validity of PPL 1069 on the basis of alleged improper purpose. It may even be arguable that this Court would have jurisdiction to entertain such an application under s 39B(1A) of the Judiciary Act, although I express no concluded view on that point. Either way, the difficulty arises that it may not then be open to the applicants to make a fresh application to the Commissioner because of the provisions of s 50(2A), the so-called "sunset" clause in the Act.

In my opinion the amendment should not be allowed. These are not the appropriate proceedings in which to ventilate the issue of improper purpose. At a practical level it would require hearing by a Full Court of extensive evidence relating to the central and ancillary issues. It may be a matter that could separately be ventilated in the Supreme Court or possibly in the jurisdiction of this Court conferred by s 39B(1A) in respect of matters arising under laws of the Commonwealth. But the proposed amendment is not appropriate to an application for judicial review of Olney J’s decision.’

8 The applicants did, however, subsequently seek to raise before the Commissioner the issue of purpose. There was a threshold question whether the issue could be considered by the Commissioner and on 2 February 2001 the Commissioner determined that he could consider it. His approach is summarised in the concluding paragraph of his reasons (at [21]):

‘So long as the NTLC remains the registered proprietor of the claimed land it has, by operation of the Real Property Act, an absolute and indefeasible title to that land. Any finding I may make will not affect the registration of the title. The Commissioner has no power to amend or rectify the register. But, if a finding is made that the transfer of PPL 1069 to the NTLC was effected improperly for the purpose of defeating the operation of the Land Rights Act, then consistent with the decision in R v Toohey I will be required by operation of s 50(1)(a) of the Land Rights Act to conduct an inquiry in relation to the traditional land claim. Just as my finding of improper purpose in the Kenbi Land Claim did not effect a repeal of the Town Planning Regulations, nor indeed of the later Planning Regulations, so in this case, the NTLC will remain registered as the proprietor of PPL 1069 unless and until a court of competent jurisdiction orders otherwise.’

9 In reaching this conclusion the Commissioner viewed as significant the judgment of the High Court in R v Toohey; Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170, which it will be necessary to examine in more detail later. The Commissioner directed the parties to produce documents relevant to the issue of improper purpose. An appeal to the Full Court by the Northern Territory against this jurisdictional ruling was discontinued.

10 After deciding that he had jurisdiction, the Commissioner heard argument on the issue of improper purpose. The argument advanced by the applicants was that the transfer of the lease to NTLC was invalid because the powers exercised to bring about that vesting were not exercised for the purposes permitted by the relevant Territory law, but for the ulterior purpose of defeating the operation of the Land Rights Act. The evidence of the applicants concerned the following matters (this summary is based on the written submissions of the applicants in these proceedings):

(1) The history of the establishment of the predecessor of the NTLC, the Northern Territory Development Land Corporation ("NTDLC") in March 1979, following the consideration by Territory officials of ways in which Crown land could be taken out of the definition of "unalienated Crown land" in the Land Rights Act in late 1978, following self-government, so that the Territory might have full power to make land use and development decisions unimpeded by the making of claims under the Land Rights Act.

(2) Complaints by the Territory that Crown land set aside for Territory public purposes was not immune from claim under the Land Rights Act whereas Crown land set aside for Commonwealth public purposes was so immune, and how this prevented the Territory from having sufficient power to make land use and development decisions, and the Territory’s unsuccessful attempts to persuade the Commonwealth to amend the Land Rights Act to put Territory public purpose land in the same position as Commonwealth public purpose land.

(3) The holding by the NTLC of land that was or might be needed for Territory public purposes and the vesting of large areas of Crown land in the NTDLC and the NTLC, following an attempt to legislate for the vesting of Crown land, including Crown land then under claim, in the NTDLC that was not pursued after a challenge in the High Court. The result was that no significant areas of unalienated Crown land were available for claim when the sunset provisions in s 50(2A) of the Land Rights Act came into operation on 5 June 1997.

(4) Attempts by traditional Aboriginal owners to make a traditional land claim to the St Vidgeon pastoral station in the Limmen Bight region and the vesting in the NTLC of other pastoral stations in the region, including St Vidgeon and Nathan River, in circumstances similar to those concerning Billengarrah.

(5) The decision of the Territory to acquire the pastoral lease at Billengarrah for potential use as part of a possible national park for the Limmen Bight region, together with St Vidgeon and Nathan River, and its decision to transfer the Billengarrah pastoral lease to the NTLC until such time as a decision was made on whether to use the land for that or any other purpose.

(6) The fact that the Territory and the NTLC had no intention to use the land for pastoral purposes and the failure of the delegate of the Minister responsible for the Pastoral Land Act to consider, as required by the terms of ss 4-5 of the Act, whether the transfer of the pastoral lease would further the objects of that Act when deciding under s 68 of the Act to consent to the transfers.

11 It was against this background that the Commissioner made his determination of 24 March 2004 to which these proceedings directly relate.

The conclusion of the Commissioner and his reasons

12 The Commissioner's determination commenced with a formal declaration of what he had determined. It read:

‘Determination of Preliminary Issue

I HEREBY DETERMINE that:

a) Northern Territory Land Corporation (NTLC) has, and at all relevant times has had, an absolute and indefeasible estate and interest in leasehold in Northern Territory Portion (NTP) 1323;

b) the acquisition by NTLC of its estate and interest in NTP 1323 was not attended by any improper purpose and in particular was not acquired for the purpose of removing NTP 1323 from the categories of land that may be the subject of an application pursuant to s 50(1)(a) of the Aboriginal Land Rights (Northern Territory) Act 1976;

c) the application known as the Billengarrah Land Claim (Claim No. 175) is not an application of the type referred to in s 50(1)(a) of the said Act;

d) the Aboriginal Land Commissioner has no function to perform in relation to the said application.’

In par (b) the Commissioner directly addressed the question of improper purpose and, in effect, rejected the applicants’ contention that the claimed land was transferred to NTLC for an improper purpose.

13 To the extent that the Commissioner explained why he reached this conclusion, it is found in the following passages from his reasons. He commenced by setting out some of the background:

‘2. On 29 May 1997 the Northern Land Council (NLC) made an application to the Commissioner on behalf of Aboriginals claiming to have a traditional land claim to an area described as Northern Territory Portion (NTP) 1323 the subject of Perpetual Pastoral Lease (PPL) 1069 (the claimed land) otherwise known as Billengarrah. In the application the claimed land is said to be unalienated Crown land.

3. At the date of the application the claimed land was, and has since remained, registered under the Real Property Act (NT) in the name of Northern Territory Land Corporation (NTLC). Details of the history of dealings with the land up to 21 July 1993 when the NTLC became so registered are to be found in the judgment of French J in Lansen v. Olney [1999] FCA 1745; 100 FCR 7 at 12-13. For present purposes it is sufficient to note that on 21 July 1993 the property was transferred first by Commonwealth Development Bank of Australia (exercising a Power of Sale under the Real Property Act) to the Northern Territory of Australia for a consideration of $250,000 and then by the Northern Territory to NTLC for no consideration.
...

5. In August 1998 the parties appeared before me to argue as a preliminary issue the question of whether the claimed land was in fact unalienated Crown land as asserted by the claimants. The Northern Territory and NTLC disputed this assertion claiming that NTLC was neither the Crown nor an emanation of the Crown in the right of the Northern Territory.

...

7. On 17 December 1999 a Full Court of the Federal Court of Australia dismissed an application by the claimants to review my decision (Lansen v Olney [1999] FCA 1745; 100 FCR 7). An application for special [leave] to appeal to the High Court was dismissed on 14 April 2000.

8. In Lansen v Olney French J concluded (at p.29) that the transfer to NTLC was valid and he agreed with Sackville J’s view that the necessary consent to the transfer had been given. He also agreed with Sackville J’s reasons in relation to the operation and effect of the indefeasibility provisions of the Real Property Act. In the penultimate paragraph of his reasons (at p.48) Sackville J said:

In my opinion, upon registration of the Territory as proprietor of PPL 1069, it acquired an indefeasible title to PPL 1069. For the reasons given by French J, I agree that there was no impediment to the Land Corporation taking and registering a transfer of PPL 1069 from the Territory. Since the Territory had an indefeasible title to PPL 1069, the Land Corporation’s status as a volunteer is immaterial. It acquired a good title to PPL 1069 upon registration of the transfer from the Territory. It follows that the Commissioner was correct to conclude that he had no jurisdiction to perform in relation to the application. The application should be dismissed with costs.

9. In the course of the proceedings before the Full Court in Lansen v Olney the claimants unsuccessfully sought leave to amend their statement of claim to allege that the transfer of PPL 1069 to NTLC was invalid by reason of being attended by an improper purpose, namely, the purpose of removing the claimed land from the categories of land which could be the subject of an application pursuant to s 50(1)(a) of the Land Rights Act. In connection with the application to amend French J (with whom the other members of the Court agreed) said (at p.30):

The proposed amendments raised substantial factual issues which were not before Olney J. It was never put to his Honour that such allegations were in contemplation by the applicant. They would go, if established, to demonstrate that on another basis altogether from that debated before Olney J and this Court, the transfer to the NTLC should be held invalid. The applicants have approached this issue on the basis that the Commissioner could not have been asked to deal with the question of improper purposes as it would have involved the exercise of judicial power. Plainly enough it would be open to the applicants, subject to questions of limitation, to take proceedings in the Supreme Court of the Northern Territory seeking to impugn the validity of PPL 1069 on the basis of alleged improper purpose. It may even be arguable that this Court would have jurisdiction to entertain such an application under s 39B(1A) of the Judiciary Act, although I express no concluded view on that point.

10. On several occasions during 2000 the NLC indicated that the claimants wished to further ventilate the improper purpose issue that had been raised in the Federal Court. After receiving submissions I concluded that notwithstanding the Full Court’s decision as to the status of the claimed land, I had the necessary authority to determine whether the administrative decision and actions surrounding the transfer to NTLC were attended by the improper purpose alleged.’

14 Having identified in general terms the issue the applicants sought to raise, namely improper purpose, the Commissioner referred to the evidence the applicants relied on:

‘12. In advance of a formal hearing on 3 December 2003, the NLC lodged, without objection, a series of documents entitled "Claimants’ tender bundle" which comprised some 875 folios contained in four lever arch files. Some affidavit evidence was also tendered. It may fairly be said that the documentary evidence tendered reveals that for some time prior to the acquisition of Billengarrah by NTLC, the NT government had under consideration the establishment of a national park in the Gulf region comprising the whole or parts of several former pastoral properties held by NTLC including at least part of Billengarrah. There had been some discussions with the previous leaseholders of Billengarrah for the inclusion of portion (sic) of their holding in the park but nothing had come of the proposal. The occasion for the acquisition of Billengarrah arose when the leaseholders walked off the property and it was put up for sale by the mortgagee. Despite the long history of planning, no formal steps have been taken to establish the park under relevant Territory legislation.’

15 The Commissioner then discussed the approach he had adopted in relation to the Kenbi land claim following the judgment of the High Court in R v Toohey; Ex parte Northern Land Council (which specifically concerned that claim). The Commissioner noted that much of the material presented to him by the applicants in this matter had been before him in the Kenbi matter. The Commissioner also referred to two other High Court judgments concerning the operation of the Land Rights Act, namely R v Kearney; Ex parte Northern Land Council [1984] HCA 15; (1984) 158 CLR 365 and R v Kearney; Ex parte Japanangka [1984] HCA 13; (1984) 158 CLR 395. He then turned to consider the specific issue of improper purpose:

‘22. The claimants’ primary contention is that the vesting PPL 1069 in NTLC is invalid because it was done for an improper purpose. It is said that the transfer of PPL 1069 may be assessed at two related levels, namely, in the first place, whether the powers exercised to bring about the transfer were exercised for purposes permitted by Territory law and secondly, whether such powers were exercised for the ulterior purpose of circumventing, or subverting, or detracting from the operation of a Commonwealth law (the Land Rights Act). The two levels of inquiry are said to be related because the absence of a legitimate purpose under Territory law at the first level is an evidential factor in establishing an ulterior purpose at the second level.

23. As stated above, it has not been submitted that the law of the Northern Territory which created NTLC was beyond the power of the Territory Parliament nor is it said that there is any inconsistency between that law and any law of the Commonwealth; and in view of the decision of the Federal Court in Lansen v Olney it is not open to the claimants to challenge the validity of the process whereby the NTLC became registered as the proprietor of PPL 1069. As I understand it, the claimants’ submission is that even if the powers exercised to bring about the transfer were in fact exercised for a purpose permitted by Territory law, it is nevertheless open to them to argue that such powers were exercised for the ulterior purpose alleged. If my understanding is correct, it appears to me that what is now argued for goes beyond what was decided in R v Toohey.

24. The decision in Lansen v Olney has, in my opinion, foreclosed any attack on the title of NTLC to the claimed land. This is the crucial point which distinguishes this case from R v Toohey. At the time the Billengarrah application was made the land was not unalienated Crown land. The claimants argue however that it was never the intention of NTLC to use the land for pastoral purposes as required by the terms of PPL 1069 and assuming for present purposes that this is so, that fact cannot affect the validity of the title which it acquired by transfer of the lease.

25. In 1978 the Northern Territory government sought to use the device of the Town Planning Regulations to frustrate the Kenbi land claim. The intention was to change the status of the land so that it could not be the subject of an application under s 50(1)(a) of the Land Rights Act. The purpose of the device failed because the means sought to be used were not within the scope of the law under which the regulations were made. In 1993 the government was instrumental in arranging for Billengarrah to be acquired by NTLC. The intention was to vest the land in NTLC in accordance with the relevant legislation. The effect was that Billengarrah remained what it had at all relevant times been, namely alienated Crown land that was not available to be claimed under the Land Rights Act. The difference between Kenbi and Billengarrah is that in Kenbi an attempt was made to use Territory law for an illegitimate purpose so as to defeat a foreshadowed land claim whereas in Billengarrah title to land passed to NTLC by an entirely appropriate process in accordance with Territory law with the effect that land in respect of which no claim had been made or foreshadowed retained the status it had had at all times since well before the Land Rights Act became law.

26. The claimants have failed to demonstrate any basis upon which the claimed land can be treated as unalienated Crown land when the application was made; nor has there been any subsequent change in the status of the land which might enliven an otherwise dormant claim. In the circumstances I find the Billengarrah Land Claim (Claim No. 175) is not an application of the type referred to in s 50(1)(a) of the Land Rights Act and that I have no function to perform in relation to the application.’ (Emphasis added)

16 In par [23] and par [24], the Commissioner used language ("it is not open" and "[t]he decision...has foreclosed any attack") which suggests that he viewed the decision of the Full Court in Lansen's case as precluding consideration of the allegation of improper purpose. If so, that approach is difficult to reconcile with his jurisdictional ruling of 2 February 2001 referred to at [8] above and with the formal determination (b) set out at [12]. The reasons do not contain any real analysis of the argument put by the applicants about improper purpose nor do they explain why it was rejected.

The applicants’ submissions and the grounds of review

17 The grounds on which the present application is made are:

‘1. The decision of the Acting Commissioner that the applicants were precluded by the decision of the Full Court of this Court in Lansen v Olney [1999] FCA 1745; (1999) 100 FCR 7 from impugning the validity of the transfer of the pastoral lease to the NLC on the grounds that the powers exercised to transfer the pastoral lease:

(a) were exercised for a purpose other than the purposes for which they were conferred, and

(b) were exercised for the purpose, or a substantial purpose of:

(i)	removing the land from the categories of land that might be the subject of a traditional land claim under s 50(1)(a) of the Land Rights Act, and

(ii)	preventing the exercise by the Commissioner of the functions conferred by s 50(1)(a) of the Land Rights Act in relation to the land,

involved an error of law.

2. The Acting Commissioner erred in law in failing to hold that because:

(a) no challenge to the validity of the transfer of the land to the NTLC based on an improper purpose was considered by the Full Court of this Court in Lansen v Olney;

(b) accordingly, there could be no res judicata or issue estoppel arising in relation to such a challenge;

(c) the applicants had sought to raise such a challenge by way of motion in the proceedings in the Federal Court, which motion had been refused on the ground that it raised substantial factual issues;

(d) accordingly no principle analogous to that enunciated in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 precluded the applicants from raising the issue before the Commissioner, and

(e) the Commissioner had determined in reasons published on 19 February 2001 (which were the subject of a challenge by the first respondent which was abandoned) that he had power to consider such a challenge,

the applicants were not precluded from impugning the validity of the exercise of the powers on the basis of improper purpose.

3. The failure of the Acting Commissioner to consider the matters raised by the applicants constituted a failure to exercise his jurisdiction.

4. The Acting Commissioner erred in law in failing to consider whether:

(a) the purpose for which:

(i)	the Northern Territory might grant or transfer a pastoral lease to a third party, and

(ii)	the Minister might consent to the transfer of a pastoral lease to a third party,

was to permit the use of particular lands for pastoral purposes under the Pastoral Land Act 1992;

(b) the Pastoral Land Act did not permit the grant or transfer of a pastoral lease for the purpose of protecting the land for future public uses; and

(c) the laws of the Northern Territory could not permit the alienation of Crown land in order to protect it for future public uses from being the subject of a traditional land claim, and an inquiry and report by the Aboriginal Land Commissioner, under s 50(1) of the Land Rights Act.

5. His Honour erred in failing to hold that the powers conferred on officers of the Northern Territory for the purpose of effecting the transfer of the pastoral lease to the NTLC were not validly exercised, with the result that the land remained unalienated Crown land for the purposes of the Land Rights Act.

6. In failing to so find, the Acting Commissioner failed to exercise his jurisdiction pursuant to s 50(1) of the Land Rights Act.’

18 The orders sought by the applicants were:

‘(1) An order setting aside the decision of the Acting Commissioner given on 24 March 2004.

(2) Declarations that:

(a) the transfer of the lease to the NTLC was invalid;

(b) the land is, and at all relevant times has been, unalienated Crown land for the purposes of s 50(1)(a) of the Land Rights Act.

(3) An order that the Aboriginal Land Commissioner perform the functions conferred under s 50(1)(a) of the Land Rights Act in relation to the land claim.

(4) Alternatively to (2) and (3), an order remitting the matter to the Commissioner for further consideration according to law.

(5) An order that the second and third respondents pay the applicants’ costs of and incidental to the proceeding.

(6) Such other orders as the Court thinks just and necessary.’

19 At the commencement of the hearing, senior counsel for the applicants indicated that ground 5 would not be pressed because the applicants did not invite determination by this Court of its contention that the transfer of the claimed land was vitiated by an improper purpose. This was explained further in the written submissions of the applicant:

‘6.2 In paragraph (2) of the relief claimed in the application, the Applicants seek declarations in relation to the merits of the challenge. However, it is accepted that, consistently with the approach adopted in Lansen v Olney, it is not necessary, and therefore not appropriate for the Court to address the merits of the challenge in the first instance. The order sought at par (3) is consequential upon the declarations in par (2).

6.3 The Applicants would seek relief limited to the following orders:

(1) an order setting aside the decision of the Commissioner given on 24 March 2004;

(2) an order remitting the matter to the Commissioner for further consideration according to law, and

(3) an order that the Respondents pay the Applicants' costs in this Court.’

20 Senior counsel accepted, however, that if the Court wished to address ground 5, it could.

21 The written submissions of the applicants were, in substantial part, directed to whether the Commissioner erred in approaching the matter on the basis that the judgment of the Full Court in Lansen's case precluded consideration of the alleged improper purpose. To that end, submissions were made about res judicata, issue estoppel and Anshun estoppel in the context of judicial review of administrative decisions. For reasons which will be explained the submissions reflect a misunderstanding of what we take the Commissioner to have intended by the observations he made (referred to at [16] above).

Our reasoning in the application

22 As noted at the beginning of these reasons, a claim can be made under the Land Rights Act to land which is either 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. Authorities to which we were referred concerned circumstances where an event occurred with the potential legal effect of altering the status of land the subject of a claim (which either had been made or was in prospect) from claimable land to land which could not be claimed.

23 In R v Toohey; Ex parte Northern Land Council the event was the promulgation of regulations (taking effect on 3 August 1979) under planning legislation enacted after the claim was made (in its final form, it was made on 20 March 1979), which purported to confer on the claimed land, the status of land in a town. As noted earlier, the claim has generally been known as "the Kenbi claim". If the regulations had been effective, then the land would no longer have been unalienated Crown land because of the definition of such land in the Land Rights Act. The claimants contended that the regulations were made to defeat claims under the Land Rights Act and not for any planning purpose authorised by the legislation under which they were made. The Commissioner took the view that it was not open to the claimants to challenge the regulations in proceedings before him by establishing the regulations were made for an improper purpose.

24 The following propositions emerged from the judgment of the High Court. If a regulation is made under an Act of the Northern Territory for a purpose not authorised by the Act, the regulation is invalid. If the jurisdiction of the Commissioner to deal with a claim under the Land Rights Act depends on the operation of such a regulation, the Commissioner should address the issue of validity as part of determining his or her jurisdiction. The premise on which the High Court's judgment proceeds is that an invalid regulation is of no legal effect and cannot operate to alter the status of land which is claimable under the Land Rights Act. In particular, an invalid regulation cannot operate to give land the status of "land in a town" so as to take it outside the definition of unalienated Crown land in the Land Rights Act.

25 After the judgment of the High Court, the Kenbi claim was further considered by the Commissioner in the light of the judgment. It will be necessary to say something shortly about the issues then considered by the Commissioner, and also about a judgment of the Full Court in subsequent proceedings in this Court in which the Northern Territory challenged the determination of the Commissioner.

26 In R v Kearney; Ex parte Northern Land Council the event was the promulgation of regulations changing the zoning of land the subject of the claim. At the time the claim was made (30 March 1978) the land was unalienated Crown land. The regulations took effect on 3 August 1979. After the regulations had taken effect, the Commissioner ruled he had no function to perform under the Land Rights Act in relation to rezoned land, as the land was no longer unalienated Crown land. The majority of the High Court (Gibbs CJ, Murphy, Brennan and Deane JJ) concluded that the Commissioner had functions to perform because, at the time the claim was made, the land was unalienated Crown land. Gibbs CJ indicated that the Land Rights Act was not intended to interfere with existing estates and interests already obtained under the law. In addition, the Land Rights Act did not prevent the alienation of unalienated Crown land which was not the subject of a claim or prevent such land being converted into land which is part of a town. Brennan J (with whom Deane J agreed) indicated that land, lawfully rezoned to become land in a town before a claim was made, could thereby become alienated Crown land over which a claim could not be made.

27 In R v Kearney; Ex parte Japanangka the event in issue was the grant of leases in perpetuity to the Northern Territory Development Land Corporation of lands which, at the time, were the subject of claim under the Land Rights Act. At the time the claim was made it included areas which had been dealt with both formally or informally in various ways for use as stock routes, stock reserves and water conservation areas. The majority (Gibbs CJ, Murphy, Brennan and Deane JJ) concluded that virtually all the land was unalienated Crown land and could be the subject of claim under the Land Rights Act. Brennan J (Deane J agreeing) concluded that the grant of the leases in perpetuity was ultra vires because the Land Rights Act, a Commonwealth law, conferred a statutory right to have a claim investigated, reported on, considered and disposed of, and a law of the Northern Territory (or the exercise of a power conferred by such a law) could not operate to defeat or frustrate that statutory right. One parcel of the claimed land had been alienated to the Conservation Land Corporation before the claim was made. Gibbs CJ, Wilson and Brennan JJ concluded that this land was not claimable land because it was not unalienated Crown land at the time the claim was made.

28 In Attorney-General for the Northern Territory v Hand, Minister for Aboriginal Affairs (1989) 25 FCR 345 the event was the grant of a lease (on 8 May 1981) of part of land the subject of a claim (made on 12 June 1980) under the Land Rights Act. The lease was registered under the Real Property Act. Lockhart and von Doussa JJ concluded that a Northern Territory law conferring power to grant a lease in relation to land the subject of a claim under the Land Rights Act was inconsistent with that Act and could not authorise the grant of such a lease. On the registration of the lease Lockhart J said (at 370-371):

‘It was argued on behalf of the Northern Territory that, assuming it was beyond its power to grant the lease, registration of it under the Real Property Act nevertheless conferred on the fourth respondents an indefeasible title to the leasehold interest. The argument took as its starting point Frazer v Walker [1967] 1 AC 569 which was decided with reference to the Land Transfer Act 1952 (NZ), but which is applicable to similar real property legislation of the Australian States: Breskvar v Wall [1971] HCA 70; (1971) 126 CLR 376. In my opinion it is also applicable to the real property legislation of the Northern Territory. The relevant sections relating to indefeasibility contained in the Real Property Act are ss 69, 70 and 93(2).

The contention may be briefly dealt with. I have already concluded that there is inconsistency between the Land Rights Act and the operation of the Crown Lands Act by the granting of the lease to the fourth respondents with the consequence that it was beyond the power of the Northern Territory to grant it. For the same reason in my view it must follow that there would be a necessary conflict between the Land Rights Act (ss 11, 12 and 50) and the operation of the indefeasibility provisions of the Real Property Act in respect of the lease. The Real Property Act, a law of the Northern Territory, cannot confer an indefeasible title which would operate inconsistently with the Land Rights Act, a law of the Commonwealth, unless a law of the Commonwealth so provides expressly or by implication; which it does not.’

29 Before considering the issues raised in these proceedings, it is necessary to describe briefly the further consideration of the Kenbi claim after the judgment of the High Court in R v Toohey; Ex parte Northern Land Council. It was first considered by the Commissioner and then by a Full Court of this Court in judicial review proceedings: see Attorney-General for Northern Territory v Olney [1989] FCA 325. The following summary of the Commissioner's decision or determination is drawn from the judgment of the Full Court. While the focus of the judgments of the High Court in R v Toohey; Ex parte Northern Land Council was on regulations promulgated under legislation enacted after the claim was made (on 20 March 1979), the Commissioner considered the validity of regulations made (on 22 December 1978) before the claim was lodged. That was because, by virtue of the judgment of the High Court in R v Kearney; Ex parte Northern Land Council, it was necessary for the Commissioner to focus on the status of the claimed land at the time the claim was made. Nonetheless the central issue remained the same; it was whether regulations (the 1978 regulations) were valid having regard to the purpose for which they were made.

30 The Commissioner accepted the case advanced by the NLC that the regulations were invalid because they were made for a purpose not authorised by the planning legislation under which they were made. He did so because he was satisfied that the real purpose for making them was to frustrate claims under the Land Rights Act by bringing the lands that were the subject of likely claims within the confines of a "town". The Commissioner had before him a large volume of evidence from which he drew an inference about the true purpose for which the regulations were made. It included evidence about Darwin, the area to which the regulations were directed, assessments made from as early as 1974 about how Darwin might develop, concerns about possible land claims both in the Darwin region and elsewhere near towns in the Northern Territory, and events leading directly to the making of the regulations (including intra-government correspondence). That correspondence included a memorandum of 30 November 1978 to the then Minister for Lands, clearly linking the making of the regulations to preventing claims under the Land Rights Act over areas contiguous to existing towns. The memorandum proposed the drafting and making of the regulations. The Commissioner was satisfied that the catalyst for the action referred to in the memorandum was a claim that had been made to vacant Crown land adjacent to Tennant Creek.

31 In its judgment, the Full Court summarised the evidence before the Commissioner and his finding about purpose and expressed the view that the finding was "well open" on the evidence. The challenge to the Commissioner's conclusion that he had jurisdiction because the regulations were invalid was made on three grounds. The first was that the Commissioner failed to advert to the distinction between a direct purpose and a consequential purpose. The Commissioner, properly understood, made a finding that the ultimate purpose was a planning purpose authorised by the planning legislation. The Full Court rejected this ground on the basis that the Commissioner found, as matter of fact, there was only one purpose, namely to ensure that no Aboriginal land claim would inhibit the government’s regional or rural planning. The second ground was that the Commissioner erred in treating regional planning as being outside the purposes of the planning legislation under which the regulations were made. The Full Court rejected this ground because the issue did not arise having regard to the Commissioner's finding of fact about purpose and, in any event, the legislation was not directed to regional planning. The third ground was that the planning legislation extended to the planning of rural areas which had a functional relationship to nearby towns and the purpose of the regulations was to effect some control over those lands. Again, the Full Court rejected this ground because the issue did not arise having regard to the finding about purpose but, in any event, the regulations did not, in any relevant sense, regulate rural land in a way contemplated by the planning legislation.

32 It is now necessary to consider the issues raised in this application. The fundamental difficulty with the argument the applicants sought to raise before the Commissioner and which underpins the submissions made in this application, is that even if the transaction the applicants seek to impugn was for an ulterior purpose of frustrating or defeating claims which might be made at some time in the future under the Land Rights Act, it occurred before any claim had been made. For the applicants to succeed it would be necessary to view the Land Rights Act as operating on Northern Territory laws to deny the indefeasibility of title created by the Real Property Act because the transaction which took place on 21 July 1993 was for the purpose just described. None of the authorities to which we were referred, including those summarised above, establish that the Land Rights Act was intended to have that wide operation.

33 The authorities establish that the Land Rights Act operates to limit both what can be done under Northern Territory laws and the effect of those laws once the procedures and processes established by the Act are enlivened by the making of a claim. It is a large step to say that the Commonwealth Parliament intended, by enacting the Land Rights Act, that the Northern Territory could not deal conclusively with land which might be (but at the time of the dealing was not) the subject of a claim in a way which would alter its status to render it unclaimable. It is also a large step to say that (because of an inconsistency between the two) the Land Rights Act qualified the operation of the Real Property Act in relation to a transaction registered under the latter Act before any claim had been made under the former.

34 There is a settled presumption that legislation is not intended to interfere with vested proprietary interests. Statutes which encroach on property rights should be interpreted, if possible, so as to respect such rights. In Wade v New South Wales Rutile Mining Co Pty Ltd [1969] HCA 28; (1970) 121 CLR 177 Menzies J noted (at 182):

‘The rights of owners to use their lands are not to be diminished except by express words or necessary intendment. The mere supposition of inconsistency between rights conferred by the Act upon others and the rights of owners would not be enough.’

This approach has found support in American Dairy Queen (Qld) Pty Ltd v Blue Rio Pty Ltd [1981] HCA 65; (1981) 147 CLR 677 at 682-683. We are not here endeavouring to reconcile property rights deriving from or protected by State law with property rights recognised by the common law and the operation of those State laws on the common law rights: cf The Wik Peoples v The State of Queensland [1996] HCA 40; (1996) 187 CLR 1. Rather we are addressing the scope of Commonwealth law establishing a statutory regime which is enlivened by the making of a claim and may culminate in statutory recognition of traditional ownership. As Brennan J observed in R v Kearney; Ex parte Japanangka (at 417):

‘Applicants do not acquire an interest in the land by making the application. They do acquire, however, a statutory right to have the application investigated, reported on, considered and disposed of in conformity with the statute. Such a right, though not a proprietary interest in the land under claim, will be recognised and enforced in appropriate proceedings.’

We are not persuaded that the Commonwealth Parliament intended the Land Rights Act to curtail or limit dealings in land under Northern Territory laws before a claim was made or affect indefeasibility of title under Northern Territory laws arising from such a dealing.

35 For these reasons any attack on the registration of the transfer of the permanent pastoral lease, which has as its foundation an inconsistency between the Land Rights Act of the Commonwealth and the Real Property Act of the Northern Territory, must fail.

36 It is a quite distinct question whether, in an appropriately formulated action in an appropriate court, the applicants could seek to impugn the registration of the transfer by judicial determination. That was the point made by French J in the passage we have cited at [7] above where he noted that, apart from the other difficulties that faced the application to amend in that case, the new issue sought to be raised was not appropriate to an application for judicial review of the Commissioner’s earlier decision.

37 In any such action the applicable law would be that of the Northern Territory and one of the issues would be whether the law of the Northern Territory, absent any relevant inconsistency with the laws of the Commonwealth, allowed the title to be impugned in circumstances where none of the specific exceptions to indefeasibility provided for by the Real Property Act were present.

38 Unless and until that occurs (initially it was sought to be done in these proceedings, but abandoned), there is no basis for concluding that the Real Property Act does not operate in terms and in the way described by Sackville J in the passage from Lansen's case quoted at [6] above. The status of land registered under that Act is, as against the world, established by the Act. Thus, the registration of the lease over the claimed land before the claim was made, mandates that the land be treated as unclaimable land at the time it was made.

39 This is what we understand the Commissioner to have had in mind when he used the expressions referred to in [16] above. Even if he erred in the way the applicants allege in these proceedings, the error was not material because he was correct in concluding that he had no function to perform in relation to the application under the Land Rights Act. The Commissioner had no power to set aside the transfer or to declare that the Real Property Act did not operate according to its terms to create indefeasibility of title. This application should be dismissed with costs.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 14 September 2004

Counsel for the Applicant:	J Basten QC
Solicitor for the Applicant:	Northern Land Council
Counsel for the First Respondent:	T I Pauling QC with R J Webb
Solicitor for the First Respondent:	Solicitor for the Northern Territory
Counsel for the Second Respondent:	R Bruxner
Solicitor for the Second Respondent:	Clayton Utz
Counsel for the Third Respondent:	Not applicable
Solicitor for the Third Respondent:	Australian Government Solicitor
Hearing Date:	26 May 2004
Date of Judgment:	14 September 2004