CATCHWORDS Administrative law - Judicial Review - Whether Minister, in deciding to make land grant, is bound to take into account representations, made by a party claiming to be detrimentally affected, on a matter arising out of the Report of the Aboriginal Land Commissioner - Court's discretion. Administrative Decisions (Judic1al Review) Act, 1977 ss.6, 16 Aboriginal Land Rights (Northern Territory) Act, 1976 ss. 11, 50 PEKO-WALLSEND LTD. PEKO EXPLORATION LTD. PEKO-WALLSEND OPERATIONS LTD. ELECTROLYTIC ZINC COMPANY OF AUSTRALASTA LTD. Vv. MINISTER FOR ABORIGINAL AFFAIRS and NORTHERN LAND COUNCIL No. G164 of 1983 Beaumont, J. Sydney 27 April, 1984. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION No. G164 of 1983 BETWEEN: PEKO-WALLSEND LIMITED PEKO EXPLORATION LIMITED PEKO-WALLSEND OPERATIONS LIMITED ELECTROLYTIC ZINC COMPANY OF AUSTRALASIA LTD. Applicants AND: MINISTER FOR ABORIGINAL AFFAIRS First respondent AND: NORTHERN LAND COUNCIL Second respondent ORDER Judge making order: Beaumont, d. Date order made: 27 April 1984. Where made: Sydney THE COURT ORDERS THAT: 1. Disniss the application made by the further amended application. 2. Order that such dismissal shall be without prejudice to any right of the applicants to bring fresh proceedings claiming relief pursuant to s.50(1)(d) or s.51 of the Aboriginal Land Rights (Northern Territory) Act, 1976. 3. Costs reserved. IN THE FEDERAL COURT OF AUSTRALIA } NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION ) No. G164 of 1983 BETWEEN: PEKO-WALLSEND LIMITED PEKO EXPLORATION LIMITED PEKO-WALLSEND OPERATIONS LIMITED ELECTROLYTIC ZINC COMPANY OF AUSTRALASIA LTD. Applicants AND: MINISTER FOR ABORIGINAL AFFAIRS First respondent AND: NORTHERN LAND COUNCIL Second respondent CORAM: Beaumont, J. DATED: 27 April 1984. REASONS FOR JUDGMENT The application for review This is an application for review of certain conduct of the first respondent brought pursuant to s.6(2)(b) of the Administrative Decisions (Judicial Review) Act, 1977 ("the Judicial Review Act"). It 1s not disputed that, assuming a case for review could be established (and this is vigorously denied) the Court would have jurisdiction to entertain the application in that the conduct in question is conduct which is capable of review under the Act. The conduct now challenged consists of the decision of the first respondent made pursuant to s.11 of the Aboriginal Land Rights (Northern Territory) Act, 1976 ("the Land Rights Act") to recommend to the Governor-General that a grant of an estate in fee simple in certain land be made to a Land Trust for the benefit of a group of Aboriginal people, now represented by the second respondent, being the traditional Aboriginal land owners known as Mirrar Kundjey'm of Madjinbardi. The first respondent's decision to recommend a grant was made after consideration by him of a report dated 2 July 1981 presented pursuant to s.50(1)(c) of the Land Rights Act by the then Aboriginal Land Commissioner on the Alligator Rivers Stage II Land Claim ("the Report"). In the Report, the Commissioner récommended, inter alia, that there be a grant to a Land Trust of the land described as Mirrar Kundjey'mi within the claim area. The relevant legislation The operation of the Land Rights Act in the present context was dealt with authoritatively for present purposes 3. by the High Court of Australia in Re Toohey (Aboriginal Land Commissioner); Ex parte Meneling Station Pty. Ltd. (1982) 57 A.L.d.R. 59, to which reference will be made later. It will suffice, at this stage, merely to mention the relevant portions of ss.11 and 50 which deal with the respective functions of the Minister and the Commissioner. By s.11(1), where (1) the Commissioner recommends to the Minister, in a report made to him under s.50(1)(a), that an area of Crown land should be granted to a Land Trust for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of that area of land and (2) the Minister is satisfied that the land, or part of the land, should be granted to a single Land Trust to be held for the benefit of Aboriginals who are the relevant Aboriginals in relation to that land or that part of that land, then (3) the Minister shall establish a single Land Trust to hold that land or part of that land for the benefit of the relevant Aboriginals. By s.50(1), the functions of the Commissioner are described as follows: "(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 ... (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 fYerritory, 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; (3) In making a report in connexion with a traditional land claim the Commissioner shall have regard to the strength or otherwise of the traditional attachment by the claimants to the land claimed, and shall comment on each of the following matters: (bd) the detriment +o persons or communities including other Aboriginal groups that might result 1f the claim were acceded to either in whole or in part; (ec) the effect which acceding to the claim either in whole or in part would have on the existing or proposed patterns of land usage in the region; ..." The applicants' case In summary form, the applicants say that they are aggrieved by the first respondent's decision because a number of them had applied for mineral leases in respect of 5. part of the land recommended for grant; that they had explored the areas in question for minerals since 1967, and had spent mitlions of dollars in that behalf; that they therefore had a reasonable expectation of being granted title to the mineral tenements thus explored; but, they say, the first respondent properly failed to take into account the detriment to their position which flowed from his decision to recommend a grant, at least without excising therefrom the mineral tenements in question and, an particular, the extremely valuable uranium discovery known as Ranger 68. Specifically, in their further amended application, the applicants seek judicial review on the following grounds: "(that the first respondent, having considered the report of the Commissioner), failed to take relevant considerations into account, such considerations being compendiously described as the detriment to the Applicants in the granting to the said Trust without excision from the said land, areas in which the Applicants had applications for mineral leases and without granting access to the Applicants to such land so as to enable the Applicants to continue to explore and develop those leases applied for and the said land, such failure being the omission to take into account the following: (a) the assurances made by the Federal Minister for the Northern Territory in 1973 as referred to 1n paragraph 300 of the (b) said recommendationg of (the Aboriginal Land Commissioner) Mr Justice Toohey (this point was ultimately not relied on in any substantive sense since it relates to an area (Ranger 38} other than the area (Ranger 68 the subject of particular complaint by the applicants and I will therefore not refer to it again); the matters of detriment to the Applacants summarised ! in paragraphs 314 to 321 of the said recommendations of Mr Justice Toohey to which the respondent did not have regard in making his recommendation; the matters of detriment set out in correspondence from the Applicants or some of them to the then Minister for Aboriginal Affairs being in particular: (i) letter dated 13 April, 1981 to Senator TheHon. Peter Baume from the Chief Executive of the first named Applicant and _ the enclosures therewith being two submissions , on detriment and a statement of evidence before Mr Justice Toohey of Peko Group Executive - Technology, Mr J.N. Ellison (sic); (1i) letter dated 2 September, 1981 to Senator The Hon. Peter Baume from the Chief Executive of the first named Applicant and _ the enclosure therewith being a submission in respect of Mr Justice Toohey's report; (iii) letter dated 25 September, 1981 to Senator The Hon. Peter Baume fron the managing director of the fourth named Applicant; 7. {1v) letter dated 28 September, 1981 to Senator The Hon. Peter Baume from the Chief Executive of the first named Applicant and the enclosure therewith being a letter to the Rt. Hon. J.D. Anthony dated 28 September, 1981 fron the Chief Executive of the first named Applicant; (v) letter dated 4 December, 1981 to Senator The Hon. Peter Baume from the Chief Executive of the first named Applicant; (vi) letter dated 10 February, 1982 to Senator The Hon. Peter Baume from the Chief Executive of the first named applicant and the enclosures therewith." fhe primary facts There is no dispute about the primary facts, although the respondents challenge certain inferences sought to be drawn by the applicants from the primary facts. (a) The Land Claim hearing In the Report, the Commissioner found that the third and fourth applicants together held more than sixty per cent of the capital of Energy Resources of Australia Itd., the developer of the Ranger Uranium Project; that on 31 duly 1967, those applicants entered into the Gondwana joint venture to explore for minerals in a large area of 8. Northern Australia, including the Alligator Rivers region; and that exploration was carried out by Geopeko Itd., the third applicant's exploration company, which applied for mining tenements as trustee for the third and fourth applicants 1n equal shares. The hearing of the Alligator Rivers Stage II Land Claim commenced on 24 November 1980 and concluded on 26 March 1981. 'The Report was presented on 2 July 1981. In the Report, the Commissioner, described the exploration work of the third and fourth applicants as follows: "298. Peko E-Z's exploration 'was designed as a systematic long-term program to investigate and develop the eological resources of the region' Exhibit 81, p.3) and Geopeko worked for almost five years before it established an economic ore body. Programs and expenditures on all authority—-to- prospect and exploration licence areas were approved by the Government. These authorities and licences contained conditions regarding environmental protection and the effect of exploration activities on Aboriginal interests. They required minimum expenditures and imposed reporting obligations and compliance with a work schedule. The companies met these obligations in the expectation that they would obtain mining tenements over any part of the authority or licence areas legitimately applied for during the currency of the authorities or licences. For a mining company not to be granted a mining tenement after complying with all the requirements of its exploration tenure 1S very much an exception to the general rule (Exhibit 81, p.4). 299. Almost all the exploration work was conducted on alienated Crown land before the enactment of the Land Rights Act. The first successful result of the exploration program was the discovery of significant uranium mineralisation at Ranger 1 in 1970. That is outside the claim area. Other promising discoveries were later made, including Ranger 68 in 1976. This lies in the Barote areas marked on Exhibit 62, °90% in Dadjbaku. The balance of the northern extremity is in Mirarr Kundjey'mi' (Mr Blliston transcript, 52080). Changes in government and uncertainties and delays in the renewal of tenure caused some disruption to the exploration program. Exploration licences 219 and 220, the areas on which most of Geopeko's exploration was concentrated, expired at the end of 1976 and Geopeko attempted to cover, with mineral lease applications, as much as possible of the indicated mineralised belt in order to retain a form of tenure that would permit the exploration and definition of the uranium resource at a later stage. Included in those applications was the Barote lease block, containing Ranger 68. Details of the mineral leases and Mineral lease applications appear as Appendix II to Exhibit 81. The areas under lease and applied for are shown on maps, Exhibits 82 and 112. All applications for MLs have been recommended for grant by the Maning Warden. Most of them fall outside the land recommended in this report, but some are wholly or partly within Bunidj, Mirarr Erre or Mirarr Kundjey'mi. (emphasis added) (As the correspondence shortly to be mentioned indicates, the applicants say that the Commissioner erred in finding that any part of Ranger 68 lay within the Dadjbaku claim area: they assert that this extremely valuable discovery lay wholly, not merely partly, within the Mirrar Kundjey'mi claim area. For their part, the respondents are content 10. to make no challenge to the correctness of the applicants' assertion so far as it goes to the precise location of Ranger 68 relative to the two claims mentioned. However, at the factual level, the respondents contend that the Commissioner is blameless in the matter: they point to the equivocal nature of the evidence given by the applicants on the subject to which reference will shortly be made and they say that the problen, being entirely of the applicants' own making, is not one from which the applicants should be relieved.) 302. One further major mineralised body (Ranger 68) has been partially drilled and awaits complete delineation. Although only preliminary drilling results are available, Mr. Elliston estimated that the Ranger 68 site may include ore at grades suggesting a minimum Us Og content of about 5500 tonnes, worth, at current prices, some $280 million (Exhibit 81, para.14). While the precise position of Ranger 68 was not indicated, part of the Barote areas to which it belongs falls within Mirarr Kundjey'me, land recommended for a grant." The location of Ranger 68 -- (1) within land the subject of mineral lease applications by the third and fourth applicants known as the "Barote" lease area, and (2) within the land belonging to the Mirrar Kundjey'm1 clan, in respect of which the Commissioner recommended a land grant; and (3) outside land claimed to belong to the Dadjbaku clan, in respect of which the Commissioner declined to recommend a Land Grant, -- is indicated by the attached map, which was tendered without objection in this application. 12. As has been said, it would seem to be now common ground that, in the events which have happened, whilst part of the Barote lease area fell within the unsuccessful Dadjbaku land claim, the other part of the Barote lease area, including the whole of Ranger 68, fell within the successful Mirrar Kundjey'mi land claim. However, although not made an issue in this application, the evidence led by the applicants before the Commissioner on the point was, unfortunately, quite obscure, as subsequent events amply demonstrated. I have emphasised above the finding in the Report (at' para.299) that "... Ranger 68 ... lies in the Barote areas ...- 90% in Dadjbaku. The balance of the northern extremity is in Mirrar Kundjey'mi (Mr. Elliston transcript, p.2229)". Mr. Ellaston's evidence in chief in this respect is crucial for present purposes and 1s as follows (at pp.2228-9): "Where you refer at the foot of the page to Range 68, are you referring there to what is sometimes described as the Barote leases or the Barote areas?---Yes. Range 68 is situated in the Barote areas. The nearest topological feature was Barote Springs. The area or vicinity is called the Barote area but ain the systematic exploration we numbered the actual prospects that were investigated. I cannot remember exactly how many there were in the Ranger programme, but the series of prospects in that area range at least to Ranger number 68, as I remember, and as each prospect was 13. developed it was assigned a number. Ranger 68 in that sense was the sixty-eighth prospect in the company's programme for development. HIS HONOUR: Which of the Carl maps is that? MR CONTI: If you look at Carl I, in the top left hand corner you will see an area shaded blue which is 90% in Dadjbaku. The balance of the northern extremity is in Mirarr Kundjey'mi. (The Map carl 1 waS Unavailable for tender in this proceeding.) Is that the area that is Ranger 68?---Yes. There were two mineralised oSpects in that -— Ranger an anger r EB are the significant ones. Ranger 5 also occurs within it. anger: 1s to the southern extremity of it and hanger 68 is in the centre of it. in fact the Mineralised belt comes right through from the Pancon border which was its eastern margin and it disappears to the north-west on this other side. The precise delineation of Ranger 68 at this present time 1s confidential to the compan is it not?---I have made a Statement about it in the appendix. (The appendix rows no lig on the "precise delineation" of Ranger 68). It is not entirely confidential. The companies have published the Significant drilling results and I have indicated fairly fully for the commissioner's information the state of present information. What is not set out perhaps is the detail of the underlying geology within the large block of leases and we would regard that as confidential because 1t is the essential clue, if you like, to the continuance of seeking to develop a further mineral." (emphasis added) 14. (b) The Commissioner's findings on "detriment" In.the Report, the Commissioner dealt with the applicants' claim of "detriment" as follows: "314. Detailed submissions were made on pehalf of Peko E-Z concerning the detriment which the companies may suffer 1f some or all of the land in which they have an interest becomes Aboriginal land. At worst, by virtue of the right of a Land Council to refuse the grant of a mining interest on Aboriginal land (s.40) and other restrictions on the companies' activities, they would lose expenditure incurred (measured in current values at over $6 million) and would lose 'the commercial potential of mining discoveries or likely discoveries to date' (Exhibit 129, p.5). At best, in return for permission from the Northern Land Council to explore and mine, the companies would incur the cost of 'the right to proceed to explore to commercial feasibility stage, and a cost at least by way of royalties ... for the right to mine once commercial feasibility is ultimately established'. (Exhibit 129,p.6). In the light of the agreements reached in regard to the Ranger and Nabarlek projects and since royalties payable under the Mining Act (s.50B) are at twice the rate for mining on Aboriginal land, the cost to the companies would be substantial. 315. How far these matters constitute detriment that might result if the claim were acceded to and how far they arise from the operation of the Land Rights Act is something discussed in the Finniss River Report, paras 279-83. I took the view that s.40 of the Land Rights Act did not of itself represent a detriment in terms of the Act because it was part of a scheme considered and deliberately created by Parliament. What the Act looks to is detriment 15. likely to arise if a partacular area becomes Aboriginal land, for instance problems of access that may arise. I thought it relevant also to have regard to the situation of a miner who had incurred substantial expenditure under an exploration licence where there is a reasonable expectation of economic return. And, as it happens, I commented as a source of detriment to Peko E-Z in that claim the possible loss of additional land needed for mining operations and to link existing mineral leases to remove any problem of access (para.419). I shall try to apply those principles to the situation of Peko E-Z in the present hearing. 316. Peko E-Z submitted that those areas in which the companies have an interest, by way of leases or applications for leases, ought to be excluded from any grant of land to an Aboriginal Land Trust so that further exploration and delineation of mineral resources be continued. There was evidence to suggest that much of the area presently under application would not prove viable for mining operations and Mr Elliston said: Of all the many Ranger prospects .-- I would only anticipate that some one in twenty or thirty will in fact produce viable mMineable deposits (transcript, pp. 2238, 2239). Even if such excisions were made, there is no guarantee that the companies would be given permission to mine in those areas found to be viable, given the need for positive advice from the Federal Minister for Trade and Resources (Mining Act s.7A(1)) and the fact that uranium remains the property of the Commonwealth (Atomic Energy Act s.35). However, Mr Elliston did say that Peko E-Z would complete the investigation of those areas presently under application in a program lasting five years (transcript, p. 2239). When that exploration 1s completed, it is highly unlikely that the companies would wish to retain land 16. not required for development, and in accordance with usual mining practice would relinquish them. Apart from the need to be assured of access to areas retained for mining, Peko E-Z would have no objection to the areas relinquished becoming Aboriginal land (Exhibit 81, p.20). 317. It is true that much money and effort has been expended by Peko E-2Z in exploring the region, money which Mr Elliston stressed was working capital and not risk capital, and that at the outset of its exploration work in the area the land was alienated Crown land held under pastoral lease. The work which was done apparently conformed to all the statutory requirements and the companies had a reasonable expectation that, in the ordinary course of events, maining leases and Commonwealth authority would be given for uranium mining in the area. Even if permission to mine were granted forthwith, mining would not commence in under five years; however, there are proven deposits within those areas under mining lease application and good prospects of further discoveries so that the interests of Peko E-Z are more than merely speculative. While the existence of s.40 of the Land Rights Act 1s of itself not a detriment within s.50(3)(b), it is a potential source of detriment in the case of a miner who, as here, hes ineurred substantial expenditure in the reasonable expectation of obtaining mineral leases. It is not possible to be more precise, simply because it is not possible to predict the outcome of negotiations with the Land Council. 319. The companies also submitted that @ grant of land in whole or in part would have an adverse effect on the existing or proposed patterns of land usage in the region (s.50(3)(c) of the Land Rights Act), at least in as much as it would adversely affect the companies. This was based on the assumption that Aboriginal owners of the land would 17. necessarily exercise their right to veto the grant of further exploration or mining interests. Such a view overlooks the possibility of negotiated agreements for mining and of a proclamation by the Governor-General declaring that the national interest requires that e grant of a mining interest be made Land Rights Act s.40(1)). That view may also underestimate the effect that a plan of management of Stage 2 of the National Park may have on mining within the park. In the end these submissions were formal ones which more or less reiterated those submissions mede on behalf of the companies with regard to detriment. 320. Naturally, the Peko E-Z sub- missions were based on the possibility that all of the land claimed might become the subject of a grant to a Land Trust. In view of the recommendations in this report, most of the Barote block of mineral lease applications falls outside the land recommended for a grant as do any prospects further west. The prospects affected are those north of Jabiluka in Bunidj and those south of Jabiluka in Mirarr Kundjey mi. ALL aspects of detriment must be qualified accordingly." (emphasis added) The Commissioner then summarised the applicants' position with respect to "detriment" as follows: "321. In view of the complexities surrounding the position of these companies, 1t may be helpful to summarise what has been said in the preceding paragraphs. (a) Peko E-Z has been exploring within the claim area since 1967. (b) Most of the exploration work was carried out before the Land Rights Act came into operation. (c) As a result of the 'freeze' that followed the Second Report of the Aboriginal Land Rights (4) (e) (f) (g) (3) 18. Commission, 5350 uranium mineral lease applications lodged within the Alligator Rivers Region and recommended by the Warden have proceeded no further. Most of these are west of the land recommended in this report. The companies have spent more than $6 million under exploration licences now expired, and hundreds of thousands of dollars on lease applications. The acquisition by the Commonwealth of Mudginberri and Munmarlary pastoral leases has not extinguished mineral leases and applications on that land. The companies now hold their interests from the Commonwealth. The Northern Territory Government, while administering the granting of mining titles for the exploration and mining of resources, requires the concurrence of the Federal Minister to specific grants of title relating to prescribed substances. This land claim aside, the companies have a reasonable expectation of maintaining their existing mining tenements and securing the grant of fresh titles. The land claimed may become a conservation zone; this is unlikely to affect the nineral leases and applications held by Peko E-Z. The power of a Land Council to refuse consent to mining = on Aboriginal land is not of itself a detriment within s.50(3)(b) of the Land Rights Act. But the power is a potential source of detriment in so far as the companies have incurred 19. substantial expenditure in the; reasonable expectation of obtaining mineral leases. That expenditure may be jeopardised and problems of access may arise if the land claimed becomes Aboriginal land. This possible detriment is considerably lessened by the fact that ohly the eastern prospects of the companies fall within the land recommended for a grant." (ce) The applicants! representations to Senator Baume On 13 April 1981, shortly after the hearing of the Alligator Rivers Stage II Land Claim had ended, the first applicant wrote to Senator Baume, then Manister for Aboriginal Affairs, and, after referring to the detriment that the applicants would suffer if the. land claim were successful, requested the Minister not to establish a Land Trust under the Land Rights Act until the applicants had first had an opportunity to consider the Commissioner's report, which was then forthcoming, and to make further submissions to the Minister in that behalf. The first applicant also foreshadowed a possible legal challenge to some of the Commissioner's findings. Senator Baume replied by letter dated 1 June 1981, indicating that he intended to table the report when received but "to take no action on the report until all parties interested in the claim have had a reasonable opportunity to examine its contents and decide whether they wish to lodge a legal challenge." 20. By letter dated 2 September 1981; shortly after the presentation of the Commissioner's report, the first applicant forwarded to the Senator a written submission on the question of the detriment the applicants would suffer if the land claims were successful. A request was made that, if a grant were to be made, there should be excised from it the areas the subject of the applicants' mineral leases. In t their written submission, the applicants referred (at p.8) to the statement made by the Commissioner 1n his report (at para.198) that there were problems in locating the western boundary of Mirrar Kundjey'mi. The written submission later said (at pp.11-12): "Among the mineral lease applications on land recommended for grant is the uranium prospect known eas Ranger 68 which is by far Peko and EZ's most significant prospect within the whole of the land claim area. However, because Peko and EZ did not reveal the exact location of this prospect at the hearing the Commissioner was only aware that it was within the Barote block of leases, 90% of which are on land unsuccessfull claimed by the Dadjbaku. The Commissioner was not specifically aware that Ranger 68 turned out to be just within the western boundary of land recommended for grant to the Mirarr Kundjey'm1 and the qualification in aragraph 320 must be read accordingly." emphasis added) (In the light of Mr. Elliston's evidence, cited above, the passage emphasised itself requires modification). 21. On 25 September 1981, the fourth applicant wrote to the Senator, and after referring to para.321(3) of the Commissioner's report said: "Oy we believe that the EZ/Peko detriment is far greater than was found. in the Report by Toohey Jd. as, for various reasons, we did not specify an our evidence precisely where Ranger 68 is. Unless this area is Sxeised from any grant, all our known mineralized areas within Barote will become aboriginal land, and then be subject to the veto power. " (emphasis added) (The "various reasons" were never divulged. Mr. Elliston was not called to give evidence in this proceeding. The applicants' solicitor, Mr. Barnett, was called but he was neither examined nor cross-examined about this matter. In the absence of any explication of the point, it is reasonable to. suppose that the commercial sensitivity of the information explains at least one of the reasons hanted at in the letter. I shall return to this question later). By letter dated 6 October 1981, the Senator thanked the first applicant: for its letter dated 2 September 1981 (supra) and accompanying submission, and said: "IT have noted the submission and will take it into account when making my decision on the land claim." 22. By letter dated 23 October 1981, the Senator acknowledged the receipt of, and noted the content of, a copy of a letter received by him, being a letter dated 28 September 1981 written by the first applicant to the Minister for Trade and Resources at the time, claiming to provide reasons and authority for the proposition that the Minister for Aboriginal Affairs was entitled to excise from the land grant the area the subject of the mineral lease applications. By letter dated 18 January 1982, the Senetor indicated that, in view of the applicant's High Court challenge to the Commissioner's recommendations in the Meneling Station litigation, he was prepared to defer his decision on the land grant question. However, on 8 March 1982, the Senator announced that he had "accepted the recommendation by the ... Commissioner ... that two areas of vacant Crown land ... be granted to an Aboriginal Land Trust" and that he had "deferred a decision on a number of blocks within these areas which may be affected by 2 case now before the High Court ...". Shortly before this announcement on 10 February 1982, the applicants had written to the Senator enclosing an appendix giving details of their mineral lease applications which were the subject of the Commissioner's recommended land grant. Although Ranger 68 23. > was not there referred to, unchallenged evidence was given in this proceeding by Mr. Barnett, the applicants' solicitor, that Ranger 68 fell within certain of the mineral lease applications specified in the appendix forwarded to the Senator. (a) The applicants' representations to Mr. Wilson By letter dated 24 December 1982, the first applicant wrote to Mr. I.B.C. Wilson, then Minister for Aboriginal Affairs, reciting the history of the matter and requesting a meeting. Mr. Wilson replied by letter dated 1 February 1982: ",.. Let me assure you at the outset that the group's interests will be carefully considered when I make my decisions on these clains. I note that Peko was represented by legal counsel, and also made written submissions, at each of the four completed land claim hearings mentioned in your letter. I note also that the Aboriginal Land Commissioner's reports on those land claims include detailed comments on the detriment which Peko companies might suffer if the areas claimed are granted to Aboriginal Land Trusts. In all the circumstances I am satisfied that a meeting with representatives of Peko is.not necessary at this time, as the group's imterests have already been comprehensively articulated." 24. (e) The first respondent's decision By letter dated 26 April 1985, Mr. Clyde Holding, the first respondent, wrote to the first and fourth applicants, referring to the Commissioner's recommendation and the High Court litigation and informing them that he had decided that the areas in question "should be granted to an Aboriginal Land Trust in accordance with the Commissioner's recommendation". (f) The material before the first respondent in making his decision Although the first respondent was not called, there is unchallenged affidavit evidence from Mr. A.N. Sorrensen, a part-time research assistant to the first respondent from November 1979 to May 1983, that on a number of occasions, he saw the first respondent reading the Report. Apart from this, the material before the first respondent is contained in a recommendation dated 11 March 1985 from Mr. George Stern, Acting Assisting Secretary Land and Mining Branch, dealing with seven land claims, including the subject claim. In that brief, reference was made to the respective functions of the Commissioner and the Minister and the role of the Department 1n these terms: 25. "Commissioner's Functions (a) to comment upon the number of Aboriginals who would be advantaged by a grant of the land claimed, the detriment to persons or communities that might result if all or part of the land were granted, and the effect which a grant would have on existing or proposed patterns of land usage in the region. 3. Under section 50(3) of the Act, the matters upon which the Commissioner comments cannot be taken into account when making his recommendation: they are mentioned so that the Minister may take account of them when deciding whether the land should be granted. Minister's Functions 4. Under section 11 of the Act, the Minister is required to decide whether, in relation to land recommended by the Commissioner for grant, he is satisfied that the land or any part of it should be granted. In reaching his decision the Minister has to decide whether other factors, including the matters upon which the Commissioner has commented, countervail the fairness and justice of making a grant. 5. Where the Minister is satisfied that land should be granted, he establishes a Iand Trust to hold title to the land and recommends to the Governor-General that a grant of an estate in fee simple in that land be made to the Land Trust. Role of Department 6. When the Department examines the Commissioner's land claim reports for the purpose of advising you on whether to accede to his recommendations, we pay very careful attention to detriment. In addition to noting the Commissioner's comments, we examine the transcript (often 1,9¢¢-2,9¢¢ pages) and relevant 26. exhibits. Where it is apparent that serious detriment could result from a grant, we might recommend either an excision from the land to be granted or that you first seek assurances from the relevant Land Council as to the means by which the interests of other parties might be accommodated should a grant be made." A summary of the Commissioner's comments on detriment and the action recommended by the Department, was attached, although no mention was made of the complaint raised by the applicants that the Commissioner had erred in his efforts to locate the site of Ranger 68 relative to the several land claims. In respect of the Alligator River Land claim, the attachment indicates that, since Senator Baume had already (on & March 1982) announced his decision to grant the remainder, the only decision outstanding was in respect of nine blocks of land covered by mineral lease applications lodged by the applicants. The nine blocks are not explicitly identified although, from the map reproduced above, it would appear that they are those Ranger areas located within the areas recommended for grant and there described as R.67 (part), R.66 (part), R.65 (part), R.64, R.35 (part), R.68 (part), R.72 (part), R-4 (part) and R.57. The attached summary 1s, so far as relevant, in these terms: 27. "LAND CLAIMS AWAITING DECISION Claim Date of Commissioner's Comments Action Commissioner's on Detriment Recommended Report by Department Alligator 2.7.81 Potential detriment We recommend Rivers* to Peko-EZ who have that the nine applied for a number blocks of land (approved ° of mineral leases, be granted. for action some of which will Decision to be C.H. (sell. the be subject to conveyed to first Aboriginal veto NI Governnent respondent) and all of which NIC and 15 March 1983.) will require Peko-EZ. negotiation of an agree- ment with the Northern Land Council. *Decision outstanding only in respect of nine blocks of land covered by mineral lease applications lodged by Peko-Ea. Decision to grant remainder announced by Senator Baume 8 March 1982." The scope of the Minister's discretion under s.1l This question, which lies at the heart of the present dispute, was authoritatively considered in Meneling. Although that proceeding was concerned with the functions of the Commissioner only, the reasoning employed by the majority of the High Court in determining that question necessarily dealt with the functions of the Minister also: Gibbs, C.J. Murphy, Wilson and Brennan, JJ., held that, in making his recommendations under s.50(1), the duty of the Commissioner 1s to have no regard to the matters mentioned in paras. (a) to (d) of s.50(3); but they also held that, in determining, under s.1l1 of the Act, whether he is satisfied 28. that the land or any part of it should be granted, the Minister 1s not bound by the recommendation of the Commissioner and the ultimate weight to be given to the matters mentioned in those paragraphs is for 'the Minister to decide. In the latter connection, Gibbs, C.J. said (at p.61): "The Minister is 1n no sense bound by the recommendation of the Commissioner, and in making his decision may wish to consider the matters mentioned in pars. (a) to (d), ancluding the detrimental effect of acceding to the claims. To enable the Minister to give proper consideration to those matters, the Commissioner is required to comment, and it is to be expected that he will do so in a way that will"enable the Minister to understand the issues involved and the judgment which the Commissioner has formed with regard to the matters upon which the comment is made. But the ultimate weight to be given to these matters is for the Minister to decide." Wilson, J. (with whom Murphy, J. agreed) said (at p-.67): "The policy of the Act being to facilitate the grant of land for the benefit of Aboriginals who have a strong traditional claim to it, that construction of s.50 should be adopted which will secure to the Minister the widest possible discretion as to whether, given such a claim, a grant should be made. The matters which are listed in s.50(3) as the subject of comment in the report are matters which 29. expose for the consideration of the Minister the implications of a decision by him to make a grant." Brennan, J. said (at p.72): "The factors referred to in pars. (a) to (4d) of s.50(3) are factors which are relevant to a political decision, a decision which has regard to all circumstances relevant to the question whether a grant should be made. The political decision and the admini- strative action required to implement it are functions reposed in the Minister by s.11(1). ... But the weighing of the considerations specified in sub-s.(3) and of all other relevant considerations in deciding whether a grant should be made ius appropriately a matter for a minister, not for a judge -- particularly when the question for decision is pregnant with political controversy. Section 50(3) distinguishes between the Commissioner's approach to the strength of traditional attachment by the claimants to the land claimed and his approach to the matters referred to in pars. (a) to (d). He is directed to have regard to the former, and to comment on each of the latter. The difference in language rightly reflects the difference between the recommen- dation which the Commissioner is to make under s.50(1) and the recommendation which the Minister 1s to make under s.11(1). The Minister's recommendation is not a mere affirmation or rejection of the recommendation made by the Commissioner. The Minister, having regard to the Commissioner's recommendation that it would be right for the Crown to grant the land in satisfaction of the traditional owners' needs and entitlement, must decide whether other factors warrant refusing the grant recommended, and in reaching 30. his decision the Minister 1s bound to have regard also to the Commissioner's comments upon the matters referred to in pars. (a) to (d) of s.50(3)." The applicants' primary argument The applicants put their case 1n several ways. Their principal submission is that the first respondent improperly exercised his statutory power under s.11(1) in that he failed to take into account a relevant consideration in the form of the full extent of the affection of Ranger 68 which would be occasioned by the land grant. They say that the evident policy of the the Land Rights Act is that, in the exercise of his statutory discretion under s.1l, detriment 1s deemed to be a relevant consideration for the Minister and must therefore be taken into account by him in deciding whether or not to make a grant of the whole or part of any land claimed. In saying this, the applicants accept that the weight to be given to any apprehended detriment 1s another matter entirely. They also submit that, although the Minister is not obliged to participate personally in every step in the decision-making process, the conduct of his officers or, if material, his predecessors in office, may be attributed to him for present purposes (see In Re Golden Chemical Products Itd. (1976) 1 Ch. 300). Then they say that the minister's statutory obligation to take detriment into account as a relevant consideration in making his decision under s.11 extends beyond matters the subject 31. of comment in the Commissioner's report, first, to the up-dating of factors material to detriment which 1s already the subject of comment in the report; secondly, to the correction of errors and the explication of ambiguities and the clarification of uncertainties apparent in the report concerning detriment; and thirdly, to factors material to detriment which come into existence after the conclusion of a hearing conducted by the Commissioner. The applicants submit that the Commissioner's comments on detriment in relation to Ranger 68 correctly emphasised its commercial importance to them; but that, by founding on the incorrect or, at least, uncertain premise that 90% of the area comprising Ranger 68 lay outside an area recommended for a grant (vide the Report, para.299), the comments necessarily understated the nature and extent of the applicants' detriment. The applicants then rely upon the correspondence subsequent to the report as bringing to the first respondent's attention the matters now complained of. Finally, the applicants contend that neither the first respondent nor any departmental officer who participated in the recommendation to the first respondent paid any regard to this subsequent material. The applicants' secondary argument Alternatively, the applicants argue that neither the first respondent nor his officers gave any weight whatever to thé Commissioner's comments on the detriment to be occasioned to them by the making of a land grant. 'MThus, they say, the first respondent, in truth, failed to take that matter into account at all, although obliged to do so. They point to the statement made in the departmental brief to the first respondent dated 11 March 1983 (at p.2) that "(w)here it is apparent that serious detriment could result from a grant, we might recommend either an excision from the land to be granted or that you first seek assurances from the relevant Land Council as to the means by which the interests of other parties might be accommodated should a grant be made". They contrast this statement with the departmental summary of the Commissioner's comments on detriment attached to the brief and contend that this summary demonstrates the entire absence of any weight having been given to the Commissioner's comments which, they urge, were inherently serious in character. They also contrast the treatment afforded in the brief to the other land claims the subject of the brief to corroborate their point. And they submit that the total absence of any material which would indicate that a process of evaluation of the competing interests involved was embarked upon by the first respondent or his department demonstrates that, in truth, the first 33. respondent gave no weight whatever to the, Commissioner's comments on the detriment the applicants might suffer if a grant were made (cf. Meneling, supra, per Wilson, J. at p.67 in the passage already cited). In my opinion, there are real difficulties in accepting the essential thrust of the applicants' primary argument in the light of the scheme of the Land Rights Act, as explained in Meneling. The High Court there emphasised the fundamental importance to the operation of the statutory scheme of the division of functions as between the Commissioner on the one hand and the Minister on the other, Under the statutory scheme, there are vested ain the Commissioner the fact-finding functions necessary to enable him to make a finding of traditional Aboriginal land ownership and to find and comment upon any matters of detriment that may be occasioned to others if a land grant were to be made. Those functions may be -readily distinguished from the functions of the Minister, who is required to consider 'the Commissioner's report and to decide whether a land grant should be made. The nature of these respective functions and the character of their respective offices, indicating, as they do, a judiciel approach in the case of the Commissioner (the Land Rights Act, s.53), and a 34. "political" (in the sense of executrve policy) approach in the case of the Minister are, I think, an important guide in the resolution of the present problem: for one thing, considerable inconvenience, and for another, inconclusivity, neither of which is to lightly be presumed to be intended in any statute, would result if the Minister were obliged to embark upon a secondary, judicial fact-finding exercise of the type already carried out by the Commissioner, for example, as to whether the Commissioner had fallen into some error or other in his findings or comments or whether certain of the information given to the Commissioner had become obsolete. To import into the Land Rights Act, as a matter of statutory construction, an obligation on the Minister to verify the accuracy of the Commissioner's report 1s by no means a self-evident process. On the contrary, in my view, the careful division of functions between the Commissioner — and the Minister, as explained in Meneling, strongly suggests that the legislators intended that their respective activities should not overlap or should not be at odds with each other in this fashion. Against this, it may be said, and the applicants so argue, that an injustice could be done to a party claiming to be detrimentally affected by a land grant if the Commissioner were to make a finding or comment based upon information which was shown to be incorrect or obselete, and, notwithstanding that this matter were drawn to his 35. attention, the Minister proceeded to make a land grant, without regard to such matters, all or some of which may be of considerable significance. But, in my view, the Land Rights Act does, in fact, provide an adequate solution for such a situation: by s.50(1)(d), the functions of the Commissioner include that of "(advising) the Minister in connexion with any other matter relevant to the operation of this Act that is referred to the Commissioner by the Minister"; and by s.51, the Commissioner "may do all things necessary or convenient to be done for or in connexion with the performance of his functions". Thus, in the foregoing example of incorrect or obselete information given to the Commissioner being drawn to the attention of the Minister, by the combined operation of ss.50(1)(d) and 51, the Minister could refer such matters back to the Commissioner for such further findings or comment as may be appropriate and the Commissioner could present a supplementary report accordingly for the Minister's further consideration. Although this matter was touched upon in argument, no such relief was sought in the present case and since, for reasons I will now give, I propose to dismiss this application, I will order that such dismissal be without prejudice to any rights the applicants may have to seek that the Minister refer back to the Commissioner under ss.51(1)(d) and 51 the questions agitated in this proceeding. In doing so, I express no view whatever on the 36. applicants' prospects of seeking to review under' the Judicial Review Act any conduct in that particular connection. I also express no view on the impact, if any, which any such review, even if successful, could have upon a decision already made under s.11 to recommend a land grant. In my opinion, whilst, as Meneling decided, the Minister 1s bound to have regard to and thus, to take into account, the comments on matters including "detriment" made by the Commissioner in his report, the Minister is not obliged to take into account any comments upon such comments proferred by a party claiming to be detrimentally affected by a land grant. This 1s not to say that the Minister 1s not entitled to have regard to such material, even if untested. However, the question here is not whether the Minister was entitied to have regard to such material but whether he was bound to do so. In this connection, in Sean Investments Pty. Itd. v. MacKellar (1981) 38 A.L.R. 363, Deane, J. observed (at p.375): "In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regerds. The ground of failure to take into account a relevant consideration 37. will only be made good if it is shown that the decision-maker has failed to take into account e consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide." In the case of s.1l1 of the Land Rights Act, the discretion to recommend a land grant which is reposed in the Minister is expressed without qualification. It as therefore "unconfined except in so far as it is affected by limitations to be derived from the context and scope and purpose of the statute" (see The Queen v. The Australian Broadcasting Tribunal; Ex parte 2HD Proprietary Limited (1980) 144 C.L.R. 45 at p.50). It is true that the general statutory context in which s.11 1s found indicates that the Minister is bound to have regard to the Commissioner's report, including, as has been sald, any comments he makes on "detriment". But, in my opinion, it 18 not possible to spell out of the context or the scope and the purpose of the statute any obligation upon the Minister to take into account any additional considerations when deciding to recommend a land grant under s.1l. This is not to say that the applicants are without a remedy in a situation such as has now arisen. As has been said, in a proper case, a party in the position of the applicants may well be able to require the Minister to refer the matters raised back to the Commissioner pursuant to ss.50(1)(d) and 51. However, this is not the case sought to 38. be made in the application. In this proceeding, in order for the applicants to succeed on their primary argument, they must demonstrate that, as a matter of statutory implication, it 1s possible to spell out of the Land Rights Act the existence of an obligation upon the Minister to take into account their protests as to the particular findings and comments made by the Commissioner which are unacceptable to them. In my view, no such implication is possible: rather, the indications in the statute in terms of its policy point the other way, having regard to the clear division of functions between the Commissioner and the Manister contemplated. In my view, it 1s not possible to infer from the language of the statute or from its general scope or purpose any intention to confer upon the Minister any obligation to interfere in the findings of the Commissioner other than perhaps for the limited purpose of a reference back to the Commissioner under ss.50(1)(4) and 51 un respect of particular matters then specified and this question does not arise here. It follows that I reject the applicants' primary argument. However, it should be noted that it was submitted on behalf of the first respondent that, even if I were to accept that he were obliged to have regard to the matters now raised, although the applicants bear the onus of proof, there 1s no evidence either way on the question whether such matters were in fact taken into account by him and his 39. officers. If that question did arise, in the absence of oral evidence on the point on behalf of the first respondent (and none was called), I would infer from the documentary material before him at the time of his decision that no such material was taken into account: no reference at all is made to it in the departmental brief and I therefore find that, for reasons not explained, it was not drawn to his attention. Since I have already held that the first respondent was not obligated to take this material into account, nothing of any legal consequence flows from the failure of his officers to refer this material to him. I turn now to the applicants' secondary argunent. . It may be accepted, as the applicants contend, that the Land Rights Act contemplates that, in deciding under s.11 whether or not to recommend a land grant in whole or in part, the. Minister is to have regard to the Commissioner's comments on "detriment". But, as Meneling decided, the weight to be afforded to that particular consideration is a matter for the Minister himself to determine, as it 1s essentially a policy question. Since the evidence establishes that the Minister was apprised, by the departmental brief, of the comments on 40. + detriment to the applicants made in the Report, no case of actual failure to have regard to the relevant material could be made out. Rather, the case is put as one of a constructive failure to have regard to the comments in question. It is possible to imagine a case of constructive failure of the kind now sought to be made, but only where the evidence establishes that, although the Minister may have gone through the motions of perusing the relevant material, he did so, minded always to dismiss it from consideration when weighing the matters he proposed to take into account in the evaluation process leading up to his decision. In a sense, such a case comes very near to a fettering of the Ministerial discretion by the elimination of a material consideration ab limine. But that is not this case. It is true that, given the undoubted gravity of the detriment to be suffered by the applicants, it is strange that so little comment, explication or even information on the point 1s to be found in the departmental brief. However, the paucity of this material and the lack of any attempt at weighing or evaluating the respective claims of the traditional Aboriginal owners on the one hand and those of the applicants on the other cannot, 1n my view, justify the inference urged by the applicants that the first respondent 41. totally failed to direct his mind to these questions. It follows, in my view, that the applicants are unable to demonstrate a constructive failure on the part of the first respondent to have regard to the Commissioner's comments on detriment in their case. I therefore reject their secondary argument also. It should be added that, even if the applicants were right in their arguments, a real question would have arisen as to whether, as a matter of discretion, it was appropriate that the Court should exercise any of the discretionary powers vested in it by s.16 of the Judicial Review Act (see Lamb v. Moss (1983) 49 A.L.R. 533 at pp.546 et esq.). As has been said, Mr. Elliston was not called in this proceeding and, although a degree of confidentiality was claimed before the Commissioner in respect of the "precise delineation" or Ranger 68, this question was never raised ain any formal way before the Commissioner, notwithstanding that it was open to the applicants to do so. If, then, the failure to identify the precise location of Ranger 68 relative to the several land claims arose as a result of a deliberate decision by the applicants to do so, such circumstances would constitute at least a relevant consideration in the exercise of the Court's discretion under s.16 and could conceivably be seen as decisive against the exercise of the powers given by that provision in the present context. ° 42. I make the following orders: 1. Dismiss the application made by the further amended application. 2. Order that such dismissal shall be without prejudice to any right of the applicants to bring fresh proceedings claiming relief pursuant to s.50(1)(d) or s.51 of the Aboriginal Land Rights (Northern Territory) Act, 1976. 3. Costs reserved. | certify ihat this and the 4} preceaing pages are a true copy of the reasons for judgment here:n cf Tho Heorourable Mr Justice Beat ricrt SS Gagora . 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