CATCHWORDS Administrative Law - Judicial review - Decision of Minister to grant land to Aboriginal Land Trust - Prior hearing before Aboriginal Land Commissioner - Failure of appellant to give clear evidence before Commissioner as to location of ore body - Consequent error in Report, stating that ore body was largely outside land recommended for grant - Submission by appellants to Minister correcting error - Change of Minister - Whether new Minister deemed to have knowledge of submission ~- Whether Minister's failure to consider submission constituted failure to take account of relevant consideration ~ Discretionary factors in granting relief - Whether appellants' failure to give clear evidence before Commissioner disentitied them to relief. Aboriginal Land Rights (Northern Territory) Act 1976 ss.11,50. Administrative Decisions (Judicial Review) Act 1977, ss.5,16. PEKO-WALLSEND LIMITED, PEKO EXPLORATION LIMITED, PEKO-WALLSEND OPERATIONS LIMITED, ELECTROLYTIC ZINC COMPANY OF AUSTRALASIA LIMITED v MINISTER FOR ABORIGINAL AFFAIRS and NORTHERN LAND COUNCIL G155 of 1984 CORAM: Bowen C.J., Sheppard and Wilcox Jd. 15 February 1985 Sydney. IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) G155 of 1984 ) GENERAL DIVISTON ) ON APPEAL FROM THE FEDERAL COURT OF AUSTRALTA BETWEEN : PEKO-WALLSEND LIMITED, PEKO EXPLORATION LIMITED, PEKO-WALLSEND OPERATIONS LIMITED, ELECTROLYTIC ZINC COMPANY OF AUSTRALASIA LIMITED Appellants AND: MINISTER FOR ABORIGINAL AFFAIRS First Respondent NORTHERN LAND COUNCIL Second Respondent ORDER JUDGES MAKING ORDER: Bowen C.J., Sheppard and Wilcox JJ. WHERE MADE: Sydney DATE: 15 February 1985 THE COURT ORDERS THAT: - 1. The appeal be allowed. 2. The cross-appeal be allowed. 3. The orders made by Beaumont J. be set aside. 4. The decision of the first respondent of 15 March 1983 be set aside, and the matter be remitted to the Honourable Clyde Holding for reconsideration according to law. The first respondent pay to the appellants their costs of the appeal and of the proceedings before Beaumont J. No order as to the costs of the cross-appeal. No order as to the costs of the second respondent of the appeal or of the proceedings before Beaumont J. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY G155 of 1984 GENERAL DIVISION QN APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN : PEKO-WALLSEND LIMITED, PEKO EXPLORATION LIMITED, PEKO-WALLSEND OPERATIONS LIMITED, ELECTROLYTIC ZINC COMPANY OF AUSTRALASIA LIMTTED Appellants AND: MINISTER FOR ABORIGINAL AFFAIRS First Respondent NORTHERN LAND COUNCIL Second Respondent CORAM Bowen C.d., Sheppard and Wilcox JJ. vy DATE: 15 February 1985 REASONS FOR JUDGMENT BOWEN C.J: The appellants in this case seek an order under the Administrative Decisions (Judicial Review) Act 1977 setting aside a decision of the Minister for Aboriginal Affairs of 26 April 1983 that certain land, including a number of areas over which the second, third and fourth appellants had applied for mineral leases, should be granted to an Aboriginal Land Trust pursuant to the Aboriginal Land Rights (Northern Territory) Act 1976 ("the Land Rights Act"). The Minister's decision was made after consideration by him of a report dated 2 July 1981 by the Aboriginal Land Commissioner on the Alligator Rivers Stage II Land Claim, in which the Commissioner recommended that the land be granted. From 1967 the third and fourth appellants had been engaged in a joint venture exploration for minerals in areas of the Northern Territory, including the Alligator Rivers Region. The exploration work had revealed extensive uranium deposits known as Ranger 68. In 1976 applications were made for mineral leases, which in the normal course of events might have been expected to succeed, but consideration of the lease applitations was interrupted by the passage of the Land Rights Act. In March 1978 the Northern Land Council made application under the Land Rights Act on behalf of Aboriginals claiming to have a traditional land claim in what was described as Stage II of the Alligator Rivers Region, although it was not until August 1980 that a claim book was lodged with the Commissioner. Although the Northern Land Council presented a single claim on behalf of several land-owning groups, the Commissioner, as required by the Act, assessed the claims of the various groups individually. One area of mineral lease applications made by the appellants, the Barote lease block, covered two adjoining claim areas, those of the Dadjbaku and Mirrar Kundjey'mi clans. The Commissioner conducted a hearing of the claim from 24 October 1980 to 27 March 1981, at which the appellants were represented. In his Report, presented in July 1981, he recommended, on the basis of the traditional attachment of Claimants to the land, that the claim in respect of Dadjbaku land had not been established but that the claim to Mirrar Kundjey'mi land had been, and that the latter should be granted. The Commissioner made certain findings of fact with regard to the location of Ranger 68, based upon the evidence given by the appellants. He found that Ranger 68 lay 90% within Dadjbaku and 10% within Mirrar Kundjey'mi. in fact it is the Barote lease area which is so located. In the present proceedings the appellants claim that Ranger 6&8 falls entirely within Mirrar Kundjey'mi, an assertion which is not disputed by the respondents. After the presentation of the Commissioner's report, the appellants put forward a submission to the Minister for Aboriginal Affairs in September 1981. They stated that Ranger 68 lay within Mirrar Kundjey'mi country and, on the basis of the detriment which would be occasioned to them if the recommended land were granted, they requested the Minister to excise the whole area of the Barote lease block from any grant which the Minister was inclined to make. The appellants say that their reluctance to disclose to the Commissioner the precise location of Ranger 68 was occasioned by the proximity of their competitor Pancontinental Mining Limited, which had interests in adjoining land. The Minister, Senator Baume, wrote to the appellants in October 1981 saying that he had noted their submission and wouid take it into account when making his decision. On 8 March 1982 the Minister announced that he had decided to grant areas recommended by the Commissioner, with the exception of the blocks over which the appellants had outstanding mineral lease applications, in respect of which a decision was deferred. In December 1982, a change of Ministry having occurred, the appellants wrote to the new Minister, Mr. Wilson, requesting a meeting for the purpose of discussing the submissions which had been made to Senator Baume. In February 1983 Mr. Wilson replied, declining to meet with the representatives of the appellants, and noting that the Aboriginal Land Commissioner's report included detailed comments on the detriment which the companies might suffer. The point of the appellants' submissions to Senator Baume and of their letter to Mr. Wilson was that the report of the Commissioner proceeded upon a wrong basis. Mr. Wilson's letter of February 1983 does not reflect any appreciation of this. Early in March 1983 a change of Government occurred and on 15 March the new Minister, Mr. Holding, decided that the land covered by the appellants' mineral lease applications should be granted. It appears that the appellants' submission to Senator Baume had not come to the attention of Mr. Holding at the time he made that decision. Mr. Holding had before him a Departmental briefing document which referred to the potential detriment to the appellants on a column headed "Commissioner's Comments on Detriment", and which recommended that the blocks in question be granted. It was of course difficult for the appellants to prove affirmatively that Mr. Holding had not considered their submission. However, the first respondent did not claim to have considered it, and the learned primary judge drew the inference that it was not taken into account. On 26 April 1983 the Minister wrote to the first and fourth appellants informing them of his decision. In October 1983 the appellants filed an application in this Court seeking an order for review under the Administrative Decisions (Judicial Review) Act. The learned primary Judge dismissed the application but considered that the applicants might have been able to require the Minister to refer the matter back to the Commissioner pursuant to para.50(1)(d) and s.51 of the Land Rights Act and he ordered that the dismissal be without prejudice to any right of the applicants to bring fresh proceedings claiming relief pursuant to those sections. The appellants appeal against that part of the order dismissing the application, while the respondents cross-appeal against that part of the order reserving any right of the applicants to bring fresh proceedings. The application for review has to be seen within the context of the mechanisms set out in the Land Rights Act for the disposition of land claims, and in particular the division of functions between the Aboriginal Land Commissioner and the Minister. Section 50 of the Act provides: "S0O.(1) The functions of the Commissioner are - (a) on an application being made to the Commissioner by or on behalf of Aboriginals claiming to have a traditional land claim to an area of land, being unalienated Crown land or alienated Crown land in which all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals - (3) (i) ta ascertain whether thase Aboriginals ar any other Aboriginals are the traditional Aboriginal owners of the land; and (ii) to report his findings to the Minister and to the Administrator of the Northern Territory, and, where he finds that there are Aboriginals who are the traditional Aboriginal owners of the land, to make recommendations to the Minister for the granting of the land or any part of the land in accordance with sections 11 and 12; (b) to inquire into the likely extent of traditional land claims by Aboriginals to alienated Crown land and to report to the Minister and to the Administrator of the Northern Territory, from time to time, the results of his inquiries; (c) to establish and maintain a register of the traditional land claims referred to in paragraph (b); (ad) to advise 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 {e) to advise the Minister and the Administrator of the Northern Territory in connexion with any other matter relating to land in the Northern Territory that is referred to the Commissioner by the Minister with the concurrence of the Administrator of the Northern Territory. 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: (a) the number of Aboriginals with traditional attachments to the land claimed who would be advantaged, andthe nature and extent of the advantage that would accrue to those Aboriginals, if the claim were acceded to either in whole or in part; {b) the detriment to persons or communities including other Aboriginal groups that might result if the claim were acceded to either in whole or in part; (c) 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; and (ad) where the claim relates to alienated Crown land ~ the cost of acquiring the interests of persons (other than the Crown) in the land concerned. (4) In carrying out his functions the Commissioner shall have regard to the following principles: (a) Aboriginals who by choice are living at a place on the traditional country of the tribe or linguistic group to which they belong but do not have aright or entitlement to live at that place ought, where practicable, to be able to acquire secure occupancy of that place; (b) Aboriginals who are not living at a place on the traditional country of the tribe or linguistic group to which they belong but desire to live at such a place ought, where practicable, to be able to acquire secure occupancy of such a place. Section 11 of the Act provides: 11.(1) Where - (a) the Commissioner has, before the commencement of the Aboriginal Land Rights Legislation Amendment Act 1982, recommended, or, after the commencement of that Act, recommends, to the Minister in a report made to him under paragraph 50(1)(a) that an area of Crown land should be granted to alLand Trust for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of that area of Iland, whether or not the traditional entitlement is qualified as to place, time, circumstance, purpose or permission; and (b) the Minister is satisfied - (i) that the land, or a part of the land, should be granted te a single Land Trust to be held for the benefit of Aboriginals who are the relevant Aboriginals in relation to that land or that part of that land; or (ii) that different parts of the land should he granted to different Land Trusts so that each Land Trust holds the land granted to it two for the benefit of Aboriginals who are the relevant Aboriginals in relation to that last-mentioned land, the Minister shall - (c) (d) Ce) 11.(4) In to an area establish - (i) ain acase where he is satisfied that the land, or apart of the land, should be granted to a single Land Trust - a single Land Trust under section 4 to hold that land, or that part of that land, for the benefit of Aboriginals who are the relevant Aboriginals in relation to the land, or the part of the land, proposed to be held by that Land Trust; or (ii) in a case where he is satisfied that different parts of the land should be granted to different Land Trusts - 2 or more Land Trusts under .section 4 respectively to hold those different parts of that land for the benefit of Aboriginals who are the relevant Aboriginals in relation to the parts of the land respectively proposed to be held by each of those Land Trusts; where land in respect of which a Land Trust has been or is proposed to be established in accordance with paragraph (c) is, or includes, alienated Crown land, ensure that the estates and interests in that land of persons (other than the Crown) are acquired by the Crown by surrender or otherwise; and after any acquisition referred to in paragraph (d) has been effected in relation to land anda Land Trust has been established in accordance with paragraph ({c) in respect of that land, recommend to the Governor-General that a grant of an estate in fee simple in that land be made to that Land Trust. this section, "relevant Aboriginals", in relation of land, means Aboriginals entitled by Aboriginal tradition to the use or occupation of that area of land, whether or not the traditional entitlement is qualified as to place, time, circumstance, purpose or permission." The appellants put their claim for judicial review upon bases. Their primary argument was that the Minister had improperly exercised his power under s.11(1) of the Land Rights Act in that he failed to take into account a relevant consideration, namely the full extent of the effect on Ranger 68 of a land grant. They argued that the Minister's obligation to take into account detriment as a relevant consideration extends beyond matters the subject of comment in the Commissioner's report, first, to the updating of material factors already mentioned in the report; secondly, to the correction of errors and uncertainties apparent in the report concerning detriment; and thirdly, to material factors which came into existence after the Commissioner's hearing. Their secondary argument was that there was a constructive failure of the Minister to pay any regard whatever to the Commissioner's comments on the subject of detriment. The question raised by the appellants' primary argument is whether the Minister's decision was an invalid exercise of the power conferred by s.1l of the Land Rights Act because of a failure to take into account a relevant consideration. The basic principles governing judicial review on this ground are not in dispute. In Associated Provincial Picture Houses Limited v Wednesbury Corporation [19483 1K.B. 223 at p.228, Lord Greene M.R. set out the principle in these terms: "The exercise of such a discretion must bea real exercise of the discretion. If, in the statute conferring the discretion, there is to he found expressly or by implication, matters to which the authority exercising the discretion ought to have regard, then in exercising the discretion, they must have regard to those matters. Conversely, if the nature of the subject matter and the general -~ 10 - interpretation of the Act make it clear that certain matters would not be germane to the matter in question, they must disregard those irrelevant collateral matters." And in Padfield v Minister of Agriculture, Fisheries and Food £19681 A.C. 997 at p.1058, Lord Reid said: "Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole, and construction is always a matter of law for the Court." Thus, what constitutes a relevant consideration in any particular case depends both upon the nature and qualities of the power itself as revealed by analysis of the statute conferring it, as well as on the concrete circumstances in which it is being exercised. Where the power in question is one conferred by statute, the relevance of a given factor is to be determined first by seeing whether the statute itself sets out a list of factors which must be taken into consideration. If there is such alist and the factor in question does not fall within it, it must then be determined whether the list was intended to be exhaustive. The respondents relied heavily upon a dictum of Deane J. in Sean Investments v Mackellar (1981) 38 A.L.R. 363 at p.375 that: "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 regards. The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide." It would hardly be correct to describe the legislation in the present case as legislation where relevant considerations were not specified. The detriment which would be occasioned to persons in the position of the appellants is specifically mentioned in the statute. In my opinion where material which is relevant to such detriment is before the Minister, it would not be a proper performance of his function under the statute to pay no regard to it. Sub-section 50(3) of the Land Rights Act requires the Commissioner to comment on "the detriment to persons or communities ... that might result if the claim were acceded to either in whole or in part". In R. v Toohey; Ex Parte Meneling Station (1983) 57 A.L.J.R. 59 the High Court was called upon to decide whether the matters mentioned in paras. (a) to (d) of sub-s.50(3), upon which the Commissioner must comment, must be taken into account by him in deciding whether to recommend to the Minister that a land grant should be made. The Court held (Gibbs C€.J., Murphy, Wilson and Brennan Jd., Mason J. dissenting) that the Commissioner's recommendations must be based solely on his findings first as to whether there are Aboriginals who are the traditional Aboriginal owners of the land and secondly as to the strength or otherwise of the traditional attachment by the claimants to the land claimed. In several of the judgments, passing reference is made to the position of the Minister in coming to a decision after receipt of the Commissioner's report. Gibbs C.J. (at p.61) stated that "The Minister is in no sense bound by the recommendation of the Commissioner, and in making his decision may wish to consider the matters mentioned in paragraphs {a) to (da), including the detrimental effect of acceding to the clain. 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 to 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. (at p.67), with whom Murphy J. agreed, considered that "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 section 50 should be adopted which will secure to the Minister the widest possible discretion as to whether, given such acclaim, a grant should be made. The matters which are listed in section 50(3) as the subject of comment in the report are matters which expose for the consideration of the Minister the implications of a decision by him to make a grant." © These passages are in no way determinative of the question whether the Minister is in truth required by law to take account of any material which might come into his hands relating to those matters set out in paras. (a) to (da). The only member - 13- of the High Court to address that problem directly was Brennan J. who stated (at p.72) "The factors referred to in paragraphs (a) to (da) of section 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.... In making his decision the Minister needs to have knowledge of the several matters referred to in paragraphs (a) to (dad) of section 50(3). ... 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 owner's needs and entitlement, must decide whether other factors warrant refusing the grant recommended, and in reaching his decision the Minister ig bound to have regard also to the Commissioner's comments upon the matters referred to in paragraphs (a) to (da) of section 50(3)." In exercising his discretion under s.1l the Minister is not bound by the recommendation of the Commissioner, and the ultimate weight to be given to the matters mentioned in paras. {a) to (da) of sub-s.50(3), including the question of detriment, is for the Minister to decide. Moreover, his consideration of the matters mentioned in paras. (a) to (da) of sub-s.50(3) is nowhere confined by any express provision in the statute simply to the Commissioner's comments upon them. Although the relevance to the Minister's decision of potential detriment to the appellants is clear enough, the argument for restricting the Minister's obligation to consideration only of the Commissioner's report is based upon the fact that the Act itself has provided a procedure for the taking into account of that detriment. This procedure comprises the - 14 - hearing of submissions by interested parties, their evaluation by an independent statutory officer, and their presentation in the form of a report for consideration by the Minister. Thus the yeal question at issue is whether the statutory procedure displaces the result which would ordinarily follow, namely, that the Minister is required to consider any material relating to detriment at the time at which he makes his decision and from whatever source it might come into his hands. In my opinion, the procedure of hearings before the Commissioner does not oust the Minister's duty. The respondents argued that the division of functions between the Commissioner and Minister was designed to avoid the requirement that the Minister himself embark upon a fact finding mission. This is correct insofar as the Minister is not himself required actively to seek out facts beyond those reported by the Commissioner. But where new facts concerning detriment are brought to the Minister's attention prior to the decision being made, the Minister would not be performing correctly his function under the statute, if he simply disregarded those facts and proceeded on what, according to the facts before him, was a false basis. The second respondent placed weight upon the fact that it was not shown that the appellant's submission was brought to the attention of the Minister who made the decision, Mr. Holding, but only to that of a predecessor. But the submission of the appellants was in the possession of the Department and must have come to the attention of senior officers of the Department. In those circumstances, knowledge of it can be attributed to the Minister. - 15- The submission disclosed highly relevant facts on the question of detriment and in my opinion ought to have been taken into account by the Minister in making his decision. This conclusion is supported by the possibility that there may be some considerable lapse of time between the presentation of the Commissioner's report and the Minister's decision, as in fact happened in the present matter. Where facts have changed or new facts have emerged it appears to me that the Minister cannot disregard the material which is before him and, as I have said, proceed upon a basis which may in the light of that material, be a false basis. I therefore hold that the Minister's decision of 15 March 1983 was an improper exercise of the power conferred by s.11(1) of the Land Rights Act on the ground that the Minister failed to take into account a relevant consideration in making his decision. This conclusion makes it strictly unnecessary to decide the ground advanced in the appellants' secondary argument. Nevertheless there is evidence that the Commissioner's comments on potential detriment to the appellants did come to the attention of the Minister, and I therefore reject the secondary argument. It remains to consider whether as a matter of discretion the appellants should be accorded a renedy. Section 16 of the Judicial Review Act provides that on an application for an order of review in respect of a decision, the Court has a discretion to make various orders. One situation where the Court may be inclined to refuse a remedy on discretionary grounds is where the - 16- applicant for review is himself responsible for the prejudice which has accrued to him. The respondents point out that the fact which the present appellants wish the Minister to consider was known to them at the time of the hearing before the Commissioner, and they argue that having made a deliberate decision not to disclose that fact unambiguously in their evidence, the appellants must put up with the consequence that the Commissioner made an erroneous finding with respect to it. In reply to that, the appellants claim that they had valid commercial reasons for revealing only such information concerning the location of Ranger 68 as was necessary to achieve the result desired by them, that is, the excision of the Barote lease areas as a whole. Those lease areas adjoined mineral interests of Pancontinental Mining Limited and it was a matter of importance to Peko-EZ not to disclose the precise location of Ranger 68 in a way which would indicate to their competitors the "underlying geology" of the region. The second respondent claimed that in that case the appropriate course to follow would have been to ask the Commissioner to take the evidence in closed session, as had already been done ina number of matters concerning secret material pertaining to Aboriginal tradition. In retrospect the appellants may well have elected to follow such a course. But at the time they were giving evidence before the Commissioner, the appellants were seeking the excision of the entire Barote lease areas. It was only when the Commissioner's report recommended that a grant be made in respect of the Mirrar Kundjey'mi land but not in respect of the Dadjbaku land, that the - 17 - precise location of Ranger 68 in the Barote lease block became an important question. Steps were then taken to inform the Minister {at that time Senator Baume) that it was in that part of the Barote lease block which was within the Mirrar Kundjey'mi area. It is true that the appellants, by putting their claim to the excision of the Barote block on an "all or nothing" basis, in effect refused to give the Commissioner any factual assistance should he be minded to excise any sites of particular mineralisation, but not to go so far as excising the block as a whole. Nor did they appear to contemplate the possibility (which actually happened) that the Commissioner could recommend the grant of one claim, while rejecting the adjoining clain. But both these circumstances are more in the nature of tactical errors on the part of the appellants than conduct which ought to disentitle them to relief. Had they deliberately put forward a false case to the Commissioner it would, in my opinion, bea ground for refusing them relief. But in omitting to put forward particular facts, which in certain eventualities would be of assistance to their case, and in allowing Mr. Elliston's vague and inaccurate evidence as to "location" of Ranger 68 to stand uncorrected, their conduct, in my view, fell short of a deliberate misleading of the Commissioner. it rather seems to reveal mistake or carelessness in the presentation of their case. It is clear from the legislation that detriment isa relevant and important factor to be placed before the Minister. If, as seems to be the case, the particular detriment as put forward in the appellants' submission to Senator Baume was not ° - 18 - "considered by Mr. Holding, it would follow that he has not taken ot relevant consideration into account. It is appreciated that to require the Minister to take such matters into account may raise practical difficulties. However, it is for the Minister to determine how he will deal with such a situation and whether he will decide it himself or make some reference to the Commissioner in regard to the facts. Certainly an opportunity should be given to the Northern Land Council to 'put their views, should they wish to do so. As to what result will flow from such consideration I have nothing to say. This is a matter for the Minister. But the evident purposes of the legislation will have been served. In exercising the discretion under s.16 I place on one side of the scales the crucial significance of the true location of Ranger 68 to a proper assessment of the detriment which may be caused to the appellants by the land grant. On the other side of the scales I place the fact that the appellants are the creators of their own injury, but in circumstances which to my mind involve mistake or carelessness rather than blameworthy conduct; and on this side of the scales I place the prejudice which will accrue to the claimants in having their land grant put at risk. In the result, I am of opinion that this is a proper case for relief. I would allow the appeal. So far as the cross-appeal is concerned, this relates to order 2 made by the learned primary Judge. This provided that his order dismissing the application he without prejudice to any rights of the applicants (appellants) to bring fresh proceedings -19 - claiming relief pursuant to s.50(1)(d) or s.51 of the Aboriginal Land Rights (Northern Territory) Act 1976. The question whether the Minister acts under s.50(1)(d) or s.51, is a matter for him. The appellants conceded that order 2 added nothing to their yights. I would allow the cross-appeal but make no order as to costs in respect of it. Little time was spent upon it. I would order that: 1. the appeal be allowed; 2. the cross-appeal be allowed; 3. the orders of Beaumont J be set aside; 4. the decision of the first respondent be set aside and the matter be remitted to him to decide in accordance with law; 5. the first respondent pay to the appellants their costs of the appeal and of the proceedings before Beaumont J. I would make no order for costs in relation to the second respondent. Wee ee a emer rn cae a eS a ene eae Re ee Re scene ee IN THE FEDERAL COURT OF AUSTRALIA } ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G 155 of 1984 ) GENERAL DIVISION } BETWEEN ; PEKO-WALLSEND LIMITED & ORS. Appellants MINISTER FOR ABORIGINAL AFFAIRS & ORS. Respondents CORAM: Bowen C.J., Sheppard and Wilcox JJ. DATE : 15 February 1985 REASONS FOR JUDGMENT SHEPPARD J.: This is an appeal from a judgment of a single judge of this Court (Beaumont J.) in which, subject toa qualification later to be mentioned, he dismissed an application for judicial review by the appellants. The application made by them to his Honour was for the review of a decision said to have been made on 26 April 1983, but in fact made on 15 March 1983, to grant to a Land Trust for the benefit of Aboriginals certain land in the Northern Territory in respect of which the applicants have pending applications for mining leases. The decision to make the grant was made pursuant tos. 11 of the Aboriginal Land Riqghts (Northern Territory) Act 1976 ("the Act"). The second respondent to the application is the Northern Land Council. it was the claimant for the grant of the land and is a land council constituted pursuant to s. 21 of the Act. Before I come to the facts of the matter and the submissions of the parties I set out the relevant provisions of the Act. Paragraphs 11(1)(a) and (b) are as follows:- "11. (1) Where- (a) the Commissioner has, before the commencement of the Aboriginal Land Rights Leqislation Amendment Act 1982, recommended, or, after the commencement of that Act, recommends, to the Minister in a report made to him under paragraph 50(1)(a) that an area of Crown land should be granted to a Land Trust for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of that area of land, whether or not the traditional entitlement is qualified as to place, time, circumstance, purpose or permission; and (b) the Minister is satisfied- (i) that the land, or a part of the land, should be granted to a single Land Trust to be held for the benefit of Aboriginals who are the relevant Aboriginals in relation to that land or that part of that land; or (ii) that different parts of the land should he granted to different Land Trusts so that each Land Trust holds the land granted to it for the benefit of Aboriginais who are the relevant Aboriginals in relation to that last-mentioned land," Paragraphs (a) and (b) are followed by three further paragraphs, (c), (d) and (e). I do not set these out. The provisions of para. {c) require the Minister, if the conditions provided for in paras. (a) and (b) are satisfied, to establish either a single Land Trust or different Land Trusts depending upon the circumstances of the case. It is unnecessary to refer to the provisions of para. (d) and (e). Section 12 provides for the grant of land to Land Trusts. Part IV of the Act deals with mining interests and mining operations. Section 40 provides for the grant of mining interests in Aboriginal land. Such an interest is not to be granted unless both the Minister and the Land Council for the area in which the land is situated have consented in writing to the making of the grant or the Governor-General has, by proclamation, declared in the national interest that the grant be made. The expression "mining interest" is defined ins. 3 of the Act to mean any lease or interest in land granted under a law of the Northern Territory relating to mining for minerals. The Commissioner referred to in sub-sec. 11(1) of the cn mt a IT ee at A en rae ne ee eee ee ak omen ae eee mer, 4, Act is the Aboriginal Land Commissioner constituted by s. 49 of the Act. Section 50 provides for the functions of the Commissioner; sub-secs. (1),(3) and (4) of s. 50 are as follows:- "50. (1) The functions of the Commissioner are- (a) on an application being made to the Commissioner by or on behalf of Aboriginals claiming to have a traditional land claim to an area of to and,--being unalienated Crown land or alienated Crown land in which all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals- (i) to ascertain whether those Aboriginals or any other Aboriginals are the traditional Aboriginal owners of the land; and (ii) to report his findings to the Minister and to the Administrator of the Northern Territory, and, where he finds that there are Aboriginals who are the traditional Aboriginal owners of the land, to make recommendations to the Minister for the granting of the land or any part of the land in accordance with sections 11 and 12; (b) to inquire into the likely extent of traditional land claims by Aboriginals to alienated Crown land and to report to the Minister and to the Administrator of the Northern Territory, from time to time, the results of his inquiries, (c) to establish and maintain a register of the traditional land claims referred to in paragraph (b); {d) to advise 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 (e) to advise the Minister and the Administrator of the Northern Territory in connexion with any other matter ee ee ee eee a einen te nw ree ene tae mew memes oe (a) (b) (c) (d) (4) (a) (b) 5. relating to land in the Northern Territory that is referred to the Commissioner by the Minister with the concurrence of the Administrator of the Northern Territory. 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: the number of Aboriginals with traditional attachments to the land claimed who would be advantaged, and the nature and extent of the advantage that would accrue to those Aboriginais, if the claim were acceded to either in whole or in part; the detriment to persons or communities including other Aboriginal groups that might result if the claim were acceded to either in whole or in part; 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; and where the claim relates to alienated Crown land - the cost of acquiring the interests of persons (other than the Crown) in the land concerned. In carrying out his functions the Commissioner shall have regard to the following principles: Aboriginals who by choice are living at a place on the traditional country of the tribe or linguistic group to which they belong but do not have a right or entitlement to live at that place ought, where practicable, to be able to acquire secure occupancy of that place; Aboriginals who are not living at a place on the traditional country of the tribe or linguistic group to which they belong but desire to live at such a place ought, where practicable, to he able to acquire secure occupancy of such a place." ' we en at et ee ee et ete te eee ete ee mee te ee ee ee te Section 51 empowers the Commissioner to do all things necessary or convenient to be done for or in connection with the performance of his functions. Section 50 of the Act was considered by the High Court in Re Toohey (Aboriginal Land Commissioner); Ex parte Meneling Station Limited (1982) 57 A.L.J.R. 59. In that case the appellants sought to argue that the Commissioner himself was bound to take into account the matters provided for in sub-sec. 50(3) before making recommendations pursuant to para. (1)(a) of the section. In particular it was submitted that the Commissioner was bound to take into account the matters provided for in para. (3)(b), that is, the detriment to persons or communities, including other Aboriginal groups, that might result if the claim were acceded to. By majority the High Court rejected that submission. Gibbs C.J. said (p. 61):- "When the section directs the Commissioner to "have regard to" the strength or otherwise of the traditional attachment by the claimants to the land claimed (sub-s. (3)), and to the principles set out in sub-s. (4), it requires him to take those matters into account andto give weight to themas a fundamental element in making his recommendation: cf. Re R.J.D. Hunt; Exp. Sean Investments Pty. Ltd. (1979), 53 A.L.J.R. 552, at p. 554, When the section directs him to comment on the matters mentioned in pars. (a) to (d) of sub-s. (3), it requires him to remark upon those matters and to express his views upon them, The 7. change in language is so significant that notwithstanding the difficulties of the section I find it impossible to reach any conclusion other than that a significant change of meaning is intended, and that the matters which form the subject of the comment are not matters to which the Commissioner is bound to have regard in making his recommendation. Although the form of the section is curious, the result is understandable. The governing principles, expressed in sub-s. (4), are that Aboriginals who by choice live ata place on the traditional lands of their tribe or linguistic group, or who wish to live at such a place, should, where practicable, be able to acquire secure occupancy of that place, or of such a place, as the case may be. The Commissioner must, in making his recommendation, have regard to this general principle, and to the strength or otherwise of the traditional attachment of the claimants to the land claimed in the particular case. If he recommends that an area be granted to a land trust it then becomes a matter for the Minister, acting under s. 11, to decide whether or not he is satisfied that the land or any part of it should be so granted. The Minister is in 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), including 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 doso ina 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., in whose judgment Murphy J. concurred (p. 65), said (p. 67):- 8. "In my opinion the Commissioner has adopted the correct approach to his task. In weighing up the competing considerations which are provoked by the wording of s. 50, TI am influenced particularly by the fact that s. il controls the scope of the discretion accorded to the Minister, indeed its very existence, by reference to a recommendation of the Commissioner. In my opinion, the Act recognizes the political character of a decision to grant traditional Aboriginal Land in the Northern Territory for the benefit of Aboriginals. It is consistent with that recognition to require the Commissioner to determine -judicially the existence of traditional owners and the strength of their attachment and then, applying the principles stated in s. 50(4), to make recommendations for the granting of the land claimed or any part of it. Those matters, and hence the recommendation, determine whether any grant at all can be made. If the Commissioner's recommendation was to be made in the exercise of a judicial discretion which had regard to the matters listed in the pars. (a) to (d) of s. 50(3), it might sometimes be the case that notwithstanding the satisfactory proof of a strong traditional claim, the Commissioner would be led by considerations extraneous to that claim to refrain from making a recommendation. In that case, whatever the Minister's wishes might be, he would be precluded from even considering the making of a grant. 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 expose for the consideration of the Minister the implications of a decision by him to make a grant." Brennan J. said (p. 72):- 9. "Tt is not said that the Commissioner failed to comment upon these matters in his report, . but that he failed to take them into 'account in making his recommendation. If the Commissioner were required or entitled to have regard to these matters in making his recommendation, his function would be very different from the function of determining whether there is a local descent group whose traditional attachment to the land makes it right that a grant of land be made. The factors referred to in pars. (a) to (dad) 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 administrative action required to implement it are functions reposed in the Minister by s. 11(1)." Later he said (p. 72) that the weighing of the considerations specified in sub-sec. 50(3) and of all other relevant considerations in deciding whether a grant should be made was appropiately a matter for a minister, not fora judge "- particularly when the question for decision was pregnant with political controversy." He also said that in reaching his decision the Minister was bound to have regard to the Commissioner's comments upon the matters referred to in paras. (a) to (d) of sub-sec. 50(3). The land in question was the subject of a report by the Commissioner pursuant tos. 50 of the Act. The report is known as the Alligator Rivers Stage II Land Claim. Prior to making his report the Commissioner conducted an enquiry at which were represented a number of interests including the ete eet ne ee ene ae se tet 10. present appellants. They were represented by senior counsel who made extensive submissions on their behalf. Their purpose was to persuade the Commissioner not to recommend the grant of lands which were the subject of a number of applications for mining leases. The Commissioner dealt with these submissions in a number of paragraphs of his report, including paras. 297-304. Commencing at para. 314 the Commissioner dealt extensively with detailed submissions made on behalf of the appellants in relation to the detriment which would be suffered by them if the land were the subject of a grant. These included reference to the difficulties the appellants might expect to have if they had to resort to the provisions of s. 40 of the Act to obtain their right to mine. The Commissioner summarised the submissions which were made to him in para. 321 which was as follows:- "321. In view of the complexities surrounding the position of these companies, it 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 befor2 the Land Rights Act came into operation. (c) As a result of the 'freeze' that followed the Second Report of the Aboriginal Land Rights Commission; 530 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 arm vae o _ OP ee te oe pe ae ne ne (d) (e) (f) (g) (h) (i) (3) il. 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 mineral 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 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 only the eastern prospects of the companies fall within the land recommended for a grant." The emphasis in sub-paras. 321(c) and (j) is mine. With the 12. statements there made should be read para. 320 of the report which is as follows:- "320. Naturally, the Peko E-Z submissions were based on the possibility that all of the land claimed might become the subject of a grant toa 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." The Commissioner's report was presented to the then Minister for Aboriginal Affairs, Senator Baume, on 2 July 1981. The report was, of course, in respect of areas of land much more extensive than that with which the appeals were concerned. The report was the subject of challenge in the High Court in the Meneling Station case earlier referred to. The purpose of the litigation was to compel the reconsideration of the claim by the Commissioner. As mentioned, the challenge to his report failed. The land with which the appellants are concerned is delineated ona map which is attached to the judgment of Beaumont J. In the result much of this land was not made the subject of a recommendation for a grant but some was. The land delineated on the map includes a number of parcels 13. marked in green. One of the largest parcels is known as the Barote area. The greater part of this area was not recommended for a grant but part was. In 1982 grants were made of the land which the Commissioner recommended should be the subject of a grant excluding therefrom the parcels of land which were the subject of mining lease applications by the appellants. The smaller portion of the Barote area which fell within the area recommended for grant was excluded at that time. In April 1981 there began a series of submissions and representations, some in writing and some made orally, by the appellants not only to the Minister for Aboriginal Affairs but to other Ministers of the then Government as well. The detail of these submissions is set out extensively in his Honour''s judgment but I find it necessary to refer to some of the detail again. The submissions commenced with letters dated 13 April 1981, that is, before the Commissioner had reported. The submissions were acknowledged on 1 June 1981 by the then Minister who said that it was his intention to table the Commissioner''s report and to take no action on it until all parties interested had had a reasonable opportunity to examine its contents "and decide whether they wish to lodge a legal challenge." On 2 September 1981, after the report had been made, 14. more submissions followed. A further letter was written on 25 September 1981 referring to a meeting with two Ministers other' than the Minister for Aboriginal Affairs. Amongst other things, the letter of 25 September 1981 said that para. 321(j) of the report which I have earlier quoted understated the detriment which the appellants might suffer as a result of the adoption of the recommendation. The letter of 2 September was acknowledged by the Minister who said that he had noted the submission and would take.it_into account when making his decision on the land claim. The submission itself is an extensive document which dealt with a number of matters. Importantly, for the purposes of the present case, it revealed more precisely than had been done in evidence before the Commissioner, the position of one prospect known internally in the companies as Ranger 68. The submission said:- "... 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 unsuccessfully 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'mi and the qualification in paragraph 320 must be read accordingly. Ranger 68 has only been partially drilled and awaits complete delineation, but there would appear to be no doubt that in it Peko and EZ have discovered a major uranium orebody. Aithough only preliminary drilling results are available, Mr. J.N. Elliston, a Director and the Group Executive-Technology 15. of Peko-Wallsend Ltd., gave evidence that he estimated that the Ranger 68 site "may include ore at grades suggesting a minimum U308 content of about 5,500 tonnes, worth at current prices some $280 million" (paragraph 302). Of all of Peko and E2's indicated prospects within the total claim area, at this stage of development it would appear Ranger 68 is by far the most valuable." The emphasis is in the original submission. Mr. Elliston had given evidence before the Commissioner in which he had said that Ranger 68 was in the centre of 'the Barote area. How he came to make this mistake is not explained. But, according to the submission, an error had been made because Ranger 68, which was regarded as the most valuable prospect, was in fact towards the eastern boundary of the Barote area and within the area recommended for a grant. If Mr. Elliston's evidence had been correct, Ranger 68 would have been outside the area recommended for grant. The area so recommended was only part of the area claimed by the Northern Land Council. It had claimed a much larger area. The parties represented before the Commissioner could not have known what recommendation the Commissioner would make. The appellants' fear during the hearing would have been that he might recommend the grant of the whole of the Barote area, not just a fraction of it as turned out to be the case; see paras. 320 and 321(c) and (j) of the report earlier quoted (pp. 10-12). | '| 16. A principal purpose of the submission of 2 September 1981 was to correct the mistake which had been made. I should mention at this point that there was some discussion during the argument of the question whether there was evidence that Ranger 68 was within that portion of the Barote area Which had been recommended for grant. It seems to me that there is evidence which establishes that it was within the area which was the subject of the recommendation. The application for judicial review was supported by an affidavit of a solicitor, Mr. D.J. Barnett, who is employed as group counsel by some of the appellants. Without objection, he said in his oral evidence that Ranger 68 was in that part of the Barote area which was the subject of the recommendation for grant. In my opinion that evidence, which was not contradicted and which was given without objection, should be accepted. That appears to have been the course taken by the learned primary Judge. No submission was made to him that there was no evidence or unsatisfactory evidence on this matter. There was further correspondence concerning the question of whether the appellants would challenge the Commissioner's decision in the High Court. They decided to challenge it and, as I have said, that led to the Meneling Station litigation. 17. The Minister asked for full descriptions of the land in respect of which the appellants claimed they would suffer detriment if the Commissioner's recommendation was adopted. These particulars were supplied. Towards the end of 1982 Senator Baume ceased to be the Minister for Aboriginal Affairs and Mr. I.B.C. Wilson became the Minister. On 24 December 1982 the appellants wrote to ~Mr.-Wilson, drawing his attention to the problem that they faced and mentioning the submissions which had earlier been made, They sought an interview with him further to discuss the matter. On 1 February 1982 Mr. Wilson wrote to the appellants in the following terms:- "Thank you for your letter of 24 December 1982 concerning Aboriginal land claims in which companies in the Peko group have been involved. Let me assure you at the outset that the group's interests will be carefully considered when I make my decisions on these claims. 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 companics 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 necesssary at this time, as the group's interests have already been comprehensively articulated." 18. There followed the grant of the land in respect of which the appellants had no interest but otherwise nothing further appears to have occurred in 1982. On 5 March 1983 the then Government was defeated at a general election. On 11 March 1983 Mr. A.C. Holding, the present Minister, took office. Also on 11 March 1983, Mr. George Stern, the Acting Assistant Secretary, Land and Mining Branch of the Department of Aboriginal Affairs, prepared a memorandum addressed to the new Minister headed, "Northern Territory Land Claims Awaiting Decisions." The reason for the memorandum was said to be to inform the Minister of the seven Northern Territory land claims which had been heard by the Commissioner and which were awaiting decision. The memorandum set out shortly what were the Commissioner's functions and what were those of the Minister. The statements made were simple summaries of the relevant legislative provisions as interpreted by the High Court in the Meneling case. Paragraph 6 dealt with the Department's role and said, amongst other things, that where it was apparent that serious detriment could result from a grant it might recommend either an excision from the land to be granted or that the Minister 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." There were then listed particulars of the seven outstanding claims, a reference to the date of the report and 19. the date the report was tabled. The report in question in the present case was apparently tabled on 25 March 1982, over eight months after it was delivered. A summary of the Commissioner's comments on detriment and the action which the Department recommended the Minister take in respect of each of the claims was attached. There were then some matters of detail to which it is unnecessary to refer and the memorandum concluded. The attachment comprises a schedule setting out each of the areas in question. The schedule had four columns, the first headed, "Claim", the second headed, "Date of Commissioner''s Report", the third headed, ""Commissioner's Comments on Detriment", and the fourth, "Action Recommended by Department." The relevant portion of the schedule is as follows:- "Alligator Rivers 2.7.81 Potential detriment We recommend to Peko-BZ who have that the nine applied fora blocks of land number of mineral be granted. leases, some of Decision to be which will be conveyed to subject to NI Government, Aboriginal veto NLC and Peko- and all of which BZ." will require negotiation of an agreement with the Northern Land Council. 20. Alongside this part of the attachment is handwritten notation which says, "Approved for action." There follow the initials of the Minister and the date, is the "15 March 1983." It decision made by the Minister on 15 March 1983 which the appellants seek to have reviewed. the following terms:- "A number of areas over which Peko-EZ had applied for mineral leases were included in the land recommended for grant by the former Aboriginal Land Commissioner, Mr. Justice Toohey, in his report on the Alligator Rivers Stage II land clain. A decision on those areas was deferred pending consideration by the High Court of applications for writs of mandamus and prohibition, arising from the Finniss River land claim report. I wish to inform you that I have decided that those areas should be granted to an Aboriginal Land Trust in accordance with the Commissioner's recommendation. I have written in similar terms to Mr. Mackay of the Electrolytic Zinc Company of Australasia Limited." On 26 April 1983 the Minister wrote to the appellants in Pursuant to the provisions of the Freedom of Information Act 1982, the appellants then made application for access to a number of documents. for the Minister's decision pursuant to s. 13 They also made a request for reasons of the i |{ 21. Administrative Decisions (Judicial Review) Act 1977. A number of documents were provided pursuant to the request made under the Freedom of Information Act. On 24 May 1983 the Minister furnished a document pursuant to s. 13 of the Judicial Review Act setting out his findings on material questions of fact, the evidence on which those findings were based and his reasons for decision. The findings on material question of fact were said to be based upon the Commissioner's report, a copy of which was sent to the applicants. The evidence was said to be that referred to in the report, both in the text thereof and in the maps and lists of exhibits and witnesses. The reasons for decision were expressed as follows:- "In accordance with s. 11 of the Aboriginal Land Rights (Northern Territory) Act 1976 (the Act) I am satisfied that this land should be granted to an Aboriginal Land Trust for the benefit of relevant Aboriginals because (i) the relevant Aboriginals are entitled to have title to their traditional land; (ii) the Act provides a scheme whereby persons wishing to use and occupy Aboriginal land can negotiate witha Land Council, acting on behalf of relevant Aboriginals, for the use and occupation of that land; and (iii) the detriment, if any, which might result from the grant of this land is not sufficient to warrant refusing the grant recommended." The application for review was filed on 23 June 1983. 22. The proceedings were heard at first instance on 4 and 5 April 1984. On 4 April 1984 the appellants called on two subpoenas for the production of documents, one directed to the Minister and one to the Department. The subpoena was answered and the documents produced became Exhibit J. The subpoena sought production, inter alia, of all documents and copies thereof considered by the Minister or to which he had reference in coming to his decision. The documents produced pursuant to that paragraph did not include any of the letters written to the previous Ministers or the submission of 2 September 1981 correcting the whereabouts of Ranger 68 in the Barote area. In the course of the proceedings before the learned primary Judge it was agreed that the material attached to Mr. Barnett's affidavit and addressed to Senator Baume and Mr. Wilson had come into the possession of the Department and was in the Department's possession at all material times. His Honour made findings concerning the material which was before the Minister when he made his decision. His Honour said:- "I would infer from the documentary material before him at the time of his decision that no such material (that is, the submission made after the report) 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." Counsel for the appellants made two broad submissions. Both submissions had been made before his Honour and rejected by him. Counsel described his first submission as his primary argument and his second submission as his secondary argument. The secondary argument was not relied upon before us with any degree of enthusiasm. The primary argument was based on the failure of the Minister to consider the submissions made subsequent to the report and to which I have referred. Particular reliance was placed on the Minister's failure to consider the correction of the position of the site of Ranger 68 which was made in the submission of 2 September 1981. The secondary argument was that there was a constructive failure on the part of the Minister to consider the question of detriment at all. This was based upon the scant evidence which there is of the Minister having read or considered the report of the Commissioner and upon the elliptical and vague way in which the recommendation made to the Minister by Mr. Stern was expressed. In addition to submitting that each of the appellants' arguments should be rejected as ill-founded, the respondents submitted that, in any event, the application should he dismissed on discretionary grounds. A further issue which arises for consideration is an issue raised by a cross-appeal brought by the respondents. The respondents seek to have his 24, Honour's order of dismissal varied by deleting therefrom the qualification which he imposed. The relevant part of his order was as follows:- "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." So there are four issues, namely:- (1) Was the Minister bound to take into account the material which came into existence after the Commissioner's report was delivered on 2 July 1981? In particular, was he bound to take into account the correction of Mr. Elliston's evidence which was made in the submission of 2 September 1981? (2) Was there a constructive failure of the Minister to consider detriment? (3) Should the application in any event have been dismissed on discretionary grounds? (4) Should the qualification to his Honour's order remain? His Honour was of opinion that there was no obligation on the Minister to consider matters detrimental to the appellants unless those were matters referred to and commented upon in the report. In his view the failure of the ne ae en a ee eae or ene eR ne oe cmp re on So enn anaes ae 25. Minister to have regard to the submissions and letters written after 2 July 1981 was of no legal consequence or significance. His Honour was of opinion that there was no failure, constructive or otherwise, properly to consider whether the claim should be granted. Of this he said:- "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 is 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, in my view, justify the inference urged by the applicants that the first respondent 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." As to discretion his Honour expressed the view that if the appellants, contrary to the conclusions at which he had arrived, had been right in the matters relied upon, a real question would have arisen as to whether, as a matter of discretion, the Court should give relief. He added:- "As has been said, Mr. Elliston was not called in this proceeding and, although a degree of confidentiality was claimed before 26. the Commissioner in respect of the "precise 'delineation" or Ranger 68, this question was never raised in 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." The question of whether there should be a qualification to the order was not the subject of any argument before his Honour, But he indicated in his reasons why he thought the qualification should be made. His view was that in a proper case, a party in the position of the appellants might well be able to require the Minister to refer matters raised after the report back to the Commissioner pursuant to para. 50(1)(d) and s.51 of the Act. He was concerned that a bare dismissal might prevent the appellants from seeking relief of this kind. Of course, he expressed no view as to whether any such application would be successful. I deal with each of the issues earlier formulated (p. 24) as follows:- (1) Some preliminary matters should first be put out of the way. A question arises as to whether the Minister was fixed with knowledge of the representations made to his predecessors. So far as the evidence disclosed, he was 27. not informed of any of the representations made after the report. There is no reference to them in Mr. Stern's recommendation of 11 March 1983 and the answers to the subpoena referred to on p. 22 did not suggest that the Minister had heen informed of tha representations. His Honour found (p. 22) that he had not. Yet it was agreed that the material attached to Mr. Barnett's affidavit and addressed to Senator Baume and Mr. Wilson had come.into__the_possession of the Department and was in the Department's possession at all material times. In support of his submission that the Minister was fixed with knowledge of the representations, counsel for the appellants relied on In _ re Golden Chemical Products Limited £19761 Ch. 300. I do not find in that authority support for counsel's proposition. I think it is concerned with a different probiem; cf. Wade on Administrative Law, Sth Ed., p. 327. But I would hold that a formal submission made to a Minister in relation to whether or not he should adopt a recommendation should be regarded as being made to him in his capacity as Minister and should be treated as a matter of which his successors in office have knowledge. Due administration requires this to be so. I would respectfully adopt what was said by Cooke J. in 28. the New Zealand Court of Appeal in Daganayasi_ v. Minister of Immigration [19801 2N.Z.L.R. 130. His Honour said (p. 148):- "Taken as a whole the observations of the House of Lords seem to me to provide a strong foundation for holding at least that the traditional duty to take into account relevant considerations extends to considerations which should have been within the knowledge of the Minister. Parliament would be unlikely to confer authority on the Minister on any other basis. Clearly, relevant facts which are known to his department fall within this category." The decision of the House of Lords to which his Honour referred was Secretary of State for Education and Science v. Tameside Metropolitan Borough Council [19773 A.C. 1014, There is an obligation on relevant departmental officers to see to it that the Minister of the day is adequately informed of all matters relevant to a proper consideration of the question in hand including those matters brought to the attention of former Ministers. I make it clear that I do not include in what I have said representations made informally to a Minister personally and not through his department. What I have said applies only to formal representations which form, as 29. they did in the present case, part of the departmental file kept in relation to the matter. For the above reasons the Minister was fixed with knowledge of the various representations made after the report notwithstanding that he did not have actual knowledge of them. The other preliminary matter with which I should deal is the significance of the letter written by Mr. Wilson on 1 February 1982 (p. 17). It was strongly submitted by counsel for the respondents that the letter contained a clear indication to the appellants that Mr. Wilson was not prepared to take into account any matter not found in the Commissioner's report. The appellants were on notice, so it was submitted, that whatever assurances had been given them by Senator Baume, Mr. Wilson would not have regard to any matter not contained in the report. Really, so it was contended, he was saying that the report and the representations and submissions made to the Commissioner were the only matters to which he would have regard. That was the clear consequence of his not being prepared to afford the appellants the interview which they had sought. It is true that the letter does not refer to any representations or submissions not referred to in the 30. Commissioner's report. But it makes no clear statement of the kind which the respondents say should be understood from it. In my opinion the respondents' submission requires too much to be read into the letter. An ordinary reader would not take from it that the Minister was saying that he would not take into account submissions made after the report. I should add that I think there is a question as to what significance there would have been for the outcome of the case, if a different view were taken. I find it difficult to see how a decision of the Minister to take nothing into account except what was in the report could change the essential matters which arise for decision in the case. To put it another way, I do not understand how the sending of Mr. Wilson's letter, if it did indicate what the respondents say, could have been fatal to the appellants' case. The ground having heen cleared, I can now come more directly to the questions which the first issue raises for consideration. The first of these questions is whether the Minister was entitled - I leave aside for the moment the question of whether he was bound - to take into account matters brought to his attention after a report and thus not forming part of it. I have earlier set out the relevant provisions of the Act. The 31. relevant sections are ss. ll and 50. The critical part of s. 50 is found in para. (1)(b) which in both sub-paras. (i) and (ii) uses the words, "Where - ... the Minister is satisfied that the land, or part of the land, should be granted ..." If he is so satisfied, he is obliged, by para. (1)(c), to grant the land to one or more Land Trusts. The words of para. (1)(b) confer on the Minister a discretion. But they do not themselves provide him with any guidance, let alone criteria, to indicate to him what matters he should or should not take into account in reaching his decision. For such guidance one must look elsewhere. The most relevant, if not the only relevant, provision is s. 50 which provides for the functions of the Commissioner. Sub-sec. 50(3) requires the Commissioner, in making a report in connection with a traditional land claim, to comment on a number of matters, including the detriment to persons or communities which might result if the claim were acceded to. It was the view of Brennan J. in the Meneling Station case that the Minister was bound to take into account matters of detriment commented upon by the Commissioner in a report when reaching his decision under s. 11. The other members of the majority of the High Court did not express a view on the question of whether the Minister was bound, but were all of opinion that he was entitled to take the matters of comment in 32. the report into account. This case does not require consideration of whether or not the Minister is entitled to take into account wide ranging submissions about detriment after a report has been made by the Commissioner. This case isin a nmarrower compass. The essential matter which the appellants wish the Minister to consider is the matter of correction, and perhaps elucidation, concerning the whereabouts of the area known internally in the companies as Ranger 68. Their principal concern is to ensure that the Minister takes into account, when deciding whether or not to grant the claim, the fact 'that Ranger 68 is inside the area which has been the subject of the grant and not outside it. Thus the question arises as to whether the Minister, being entitled to take into account the matters of comment reported on by the Commissioner, is also entitled to take into account matters of correction and elucidation relating to facts commented upon by the Commissioner. In the end one has to have regard to the provisions of the Act and to the policy and purpose which its language indicates underlies it. It would seem unlikely to me that the legislature would not have intended a Minister to be able to take into account factual errors ina report. Although the question does not arise in this 33. case, I would take the same view of changes in circumstances coming about between the date of a report and the Minister's consideration of the matter. Particularly is that so when it may be expected that there will often be a not inconsiderable interval between the date of the report and the date of the Minister's consideration. In the present case it was almost two years. It is true that the Minister would place substantial reliance upon the Commissioner's report because it would not be made without a great deal of investigation and consideration. The Minister and his Department could not so easily bring to bear on any of the matters in contention the same level of investigation and consideration as could the Commissioner. But if, after a report was made, the Minister were in doubt as to what the then factual situation was, he could request the Commissioner to advise him in relation to it; see para. 50(1)(d). In my opinion the Minister is therefore plainly entitled to take into account at least matters of correction and matters which have come about after a report which change or may tend to change the circumstances as they were when considered by the Commissioner. 34. The next question is whether the Minister was not only entitled, but also bound, to take the matters of correction here advanced by the appellants into account. If the view of Brennan J. in the Meneling Station case be right, namely that the Minister is bound to take the matters of comment in the Commissioner's report into account, it seems to me that it must follow that he was also bound to take matters of correction into account. I am respectfully of opinion that his Honour's view was correct. There is nothing in the judgments of the other judges which suggests to me that they were positively of the view that the Minister was not so bound. The question did not arise. And there are indications that they may have been of the same view. At the end of the passage earlier quoted from his judgment (p. 7) Gibbs C.d. said that the ultimate weight to be given the matters of comment was for the Minister to decide. This does not suggest that the Minister was entitled to leave them altogether out of account. Similarly, Wilson J. said (p. 8, supra) that the matters which were listed in sub-sec. 50(3) as the subject of comment in the report were matters which exposed for the consideration of the Minister the implications of a decision by him to make a grant. My conclusions so far are that the Minister is not only entitled, but also bound, to take into account the Pi 35. matters of comment contained in a report made by the Commissioner pursuant to s. 50 of the Act, and that he is entitled to take into account matters of correction and elucidation of factual statements made in the course of such comments. He is also entitled to take into account changes in circumstances arising since the making of the report. The critical question is whether he is bound to take into account such matters of correction and eludication and changes in circumstances. In the present case it is a matter of correction which is involved. The question is one of legqiglative intent to be discerned Trom a consideration of the Act as a whole and the policy which underlies it. In my opinion, the Minister being bound to take the matters of comment into account, he is equally bound to take into account the correction of factual statements made in the course of the Commissioner's comments. I would add to the correction of factual statements, the eludication of such statements and changes in circumstances coming about after the report. Such a view gives the Acta sensible and practical operation which it. would not have if the narrow view contended for by the respondents were to prevail. I make it clear that the factual errors to which I refer need not be due to any mistake or error of the Commissioner himself. He may have said what he did 36. because of the state of the evidence before him. That is this case. There may be other cases where the Commissioner has in good faith reached a plainly erroneous conclusion on a factual matter. Iam of opinion that in both kinds of cases the Minister is bound to take the corrections into account. I am therefore of the opinion that the Minister was bound to take into account the matters of correction and elucidation concerning the position of the site of Ranger 68 which had been put to his predecessors. Those matters should have been drawn to his attention by Mr. Stern in the memorandum of 11 March 1983. There is a question as to the ground in s. 5 of the Administrative Decisions (Judicial Review ) Act 1977 which may be relied upon in the circumstances of a case such as this. In my opinion there may be a number of ways in which the matter may be put, but I am content to rely upon para. 5(1)(e) and para. 5(2)(b). The former 'provision provides a ground of review where the making of the decision was an improper exercise of the power conferred by the enactment, that is, the Act here in question, By the latter provision it is an improper exercise of power to fail to take a relevant consideration into account. Such a consideration was the matter of correction brought to the attention of the eee ee ere cet ee et ane nce mena 37. earlier Ministers. My view in this regard is in accordance with the authorities on the circumstances in which a Court will interfere on the ground that a relevant consideration has not been taken into account. The well known passage in the judgment of Deane J. in Sean Investments Pty Limited v. MacKellar (1981) 38 A.L.R. 363 at pp. 374-5 controls the situation. I do not quote the passage in full but part of it is as follows (p. 375):- "In a case such as the present, where relevant considerations are not specified, it igs 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 regards. The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide." I refer also to Water Conservation and Irrigation Commission (N.S.W.) (1647) 74 C.L.R. 492 per Dixon J. (as he was) at pp. 504-5 and The Queen v. Australian Broadcasting Tribunal; Ex parte 2 HD Proprietary Limited (1979) 144 C.L.R. 45 at p. 49. Reference should also be made to the dicta of Lord Greene M.R. in Associated 38. Provincial Picture Houses v. Wednesbury Corporation £1948] 1 K.B. 223 at p. 228 and of Lord Reid in Padfield v. Minister of Agriculture, Fisheries and Food [19681 A.C. 997 at p. 1058. These authorities show that the question of whether a Minister or other public official is bound to take into account a particular factor will be determined, not only by reference to specific criteria provided for in the legislation, but also by reference to underlying considerations of purpose and policy which the legislation is designed to achieve. In my opinion it would defeat that purpose and policy if the Minister were to act upon facts stated in the report which were, nevertheless, upon the basis of information within his department, erroneous. To leave out of account the matters of correction as to the whereabouts of Ranger 68 would be to omit from the Minister's deliberations a relevant consideration. That in my view "would be enough to warrant the conclusion that the decision is contrary to law. That is the view I have of the decision in this case. T am also of opinion that the appellants may found their case upon paras. 5(1)(h) and 5{3)(b) of the Judicial Review Act. Those provisions enable review where a person making a decision has based the decision on the existence of a particular fact and the fact did not exist. Here the decision was based on Ranger 68 being (2) 39. outside the area granted, whereas in truth it was inside that area. I refer generally to the Tameside and Daganayasi cases earlier cited. In the former case Lord Wilberforce said (£19771 A.C. at p. 1047):- "The section is framed in a 'subjective' form - if the Secretary of State ''is satisfied.' This form of section is quite well known, and at first sight might seem to exclude judicial review. Sections in this form may, no doubt, exclude judicial review on what is or has become a matter of pure judgment. But I do not think that they go further than that. If a judgment requires, before it can be made, the existence of some facts, then, although the evaluation of those facts is for the Secretary of State alone, the court must inquire whether those facts exist, and have been taken into account, whether the judgment has been made upon a proper self-direction as to those facts, whether the judgment has not been made upon other facts which ought not to have been taken into account. If these requirements are not met, then the exercise of judgment, however bona fide it may be, becomes capable of challenge ..." For all the reasons I have given I would determine the first issue in favour of the appellants. In my opinion the submission that there was a constructive failure to consider detriment at all should be rejected. In reaching that conclusion I have taken into account the whole of the evidence and the conclusions of Beaumont J. which I have earlier quoted (p. 25). I am respectfully in full agreement with what (3) 40. his Honour there said. I would not refuse relief on discretionary grounds. There is no evidence of any deliberate misleading of the Commissioner by the appellant or Mr. Elliston. How he came to make the mistake he did is not clear but there is nothing to suggest that it was not honestly made. It may have been better if the appellants had been prepared to take the Commissionerinto..their confidence about the position of Ranger 68. Undoubtedly he would have devised procedures to safeguard the confidentiality of the information. But one can well understand the anxiety which the appellants must have had in relation to the site of this prospect and the consequent fear they would have of advantage to competitors if the site and the valuable nature of the prospect became known, Furthermore, the claim made by the Northern Land Council was for a much larger area than that in respect of which the Commissioner recommended a grant. The precise location of any of the areas covered by the mineral lease applications may not have then have had the importance that events later proved them to have. I refer again to paras. 320 and 321(c) and (j) of the Commissioner's report earlier quoted (pp. 10-12). Counsel for the respondents relied not only upon the mistake made by Mr. Elliston in his evidence before the 41. Commissioner, but also upon an alleged lack of frankness in the submissions made by the appellants to Senator Baume after the report had been made. The September 1981 submissions did not identify the whereabouts of Ranger 68 except to make it clear that it was within, and not outside, the area which had been recommended for a grant. The descriptions of the various areas in question later supplied to the Minister did not refer to it as Ranger 68, but nevertheless referred to other areas of land by the designation "Ranger". There was express reference to Ranger 4, 34, 35, 57, 64, 65, 66 and 67. Each of these areas was precisely identified by metes and bounds. On the other hand Ranger 68 was included in an area deseribed generally as the Barote area. This area was also defined by reference to metes and bounds, but without reference to the designation "Ranger 68". As I understand the suggestion put in argument there was something sinister, or at least a lack of frankness in not identifying precisely the metes and bounds of Ranger 68 by reference to its designation as such. I have given the submission consideration, but I do not find in the evidence any basis for it nor for another suggestion which I think was made, namely, that the circumstances of the case suggest that the appellants 42. were in some way playing a double game. The September 1981 submission made express reference to Ranger 68. It was there said: "Among the mineral lease applications on land recommended for grant is the uranium prospect known as Ranger 68 which is by far Peko and E2Z's most significant prospect within the whole of the land claim area." The submission went on to refer to the error which had been made in designating its position. If, on receipt of the detailed particulars of the whereabouts of each of the areas, the Minister had wished the site of Ranger 68 to be precisely stated, it would have been easy enough for him to ask for that to be done. He was well aware of the importance that the appellants attached to the area which he knew they referred to as Ranger 68, It follows, in my opinion, that the submissions and letters from the appellants do not suggest lack of frankness, let alone conduct of a more sinister kind. I respectfully agree with Beaumont J. (see p. 26 supra) that if the failure to identify the precise location of Ranger 68 relative to the several land claims arose as a result of a deliberate decision of the appellants, such 43. circumstance would constitute at least a relevant consideration in the exercise of the Court's discretion. But, for reasons given, I do not find in the evidence of the conduct which there is, any basis for a finding along these lines. No such finding was made by Beaumont J. himself. Before leaving the matter of discretion, I wish to say that this Court, since the coming into force of the Judicial Review Act, has had occasion to review administrative action in many fields. There are a number of judgments in which it is made clear that in reviewing administrative conduct, it will be the substance of the matter which is looked at. Decisions of Ministers and other officials, and the reasons given for them, will not be ransacked for the purpose of seeing whether all i's have been dotted and all t's crossed. The approach is a broad, commonsense one. If it were not, the increased availability of judicial review which the Act has brought about could lead to an undesirable interference with the proper functioning of the executive arm of government. In my opinion, the same approach should be adopted when the conduct of a party seeking review is impugned for the purpose of establishing that there are discretionary reasons why the Court's jurisdiction should not he (4) ry ce ee eee . wamecwwerm sae « - PU ee me ee ee wee o ear see cee ee 44, exercised. What a party has done or said ought not to be looked at narrowly, nor with too critical an eye. Whether the problem arises in the field of commerce, as is the case here, or in some other field, for example, migration or social services, a broad and realistic approach is required. A party faced with government action may not always act as others may expect him to. He may take different stands at different times. He may quite properly take advantage of particular circumstances as they appear to him at the time. If he acts in this way, he should not, ordinarily speaking, lose the right to have an unlawful decision set aside. On the other hand, if he deliberately misleads an official, or mistakenly does so, and then becomes aware of his mistake and its significance and does not correct it, different considerations will arise. In such a case it may well be said that he is the cause of the unsatisfactory, and unlawful, decision of which he complains. In my opinion this case is not in that category. In the view I take of the matter the appeal will succeed and his Honour's orders will be set aside. Nevertheless I do not think that it was right to include the qualification made by his Honour to his orders which is the subject of the cross-appeal. I have been in two minds as to whether the appropriate order is 45. nevertheless dismissal of the cross-appeal because his Honour''s orders will be set aside. But on reflection I would uphold the cross-appeal. I would make no order as to the costs of it. In summary then, I would allow the appeal, set aside the orders made by his Honour, set aside the Minister's decision of 15 March 1983 and refer the matter to the Minister to be reconsidered by him according to law. I would allow the cross-appeal. I would order the respondent Minister to pay the appellants' costs of the appeal and of the proceedings before Beaumont J. I would make no order as to the costs of the other respondent either before Beaumont J. or on the appeal. I would make no order as to the costs of the cross-appeal. { certify that this and the Ak prececing pages are a true copy of tne reasons for judgment herein of The Honourable Mr Justice Sheppard. 4 AL se~ Associate Dated "7S KEZEBRVAAY 1978S IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION BETWEEN : ewe vevurwny No. G.155 of 1984 ON APPEAL FROM THE FEDERAL COURT OF AUSTRALTA PEKO-WALLSEND LIMITED PEKO EXPLORATION LIMITED PEKO-WALLSEND OPERATIONS TIMTTED ELECTROLYTIC ZINC COMPANY OF AUSTRALASTA LIMITED Applicants MINISTER FOR ABORIGINAL AFFAIRS NORTHERN LAND COUNCIL Respondents REASONS FOR JUDGMENT BOWEN CJ, SHEPPARD AND WILCOX JJ 15 FEBRUARY 1985 SYDNEY I 'agree in substance with the views expressed by Bowen CJ and Sheppard J in relation to the extent of the Minister's obligation in considering, under s.11]1 of the Aboriginai Land Rights (Northern Territory) Act 1976, whether to recommend to the Governor-General the grant in fee simple of land to a Land Trust. In Re Toohey; ex parte Meneling Station Pty. Limited (1982) 57 ALJR 59 at p 72 Brennan J held that the Minister is not merely ee re a ee ee ee re ee ee entitled but is bound to take into account any comments in the Commission's report relating to detriment. That must be because, under the statutory scheme, detriment is a material matter for consideration in the exercise of the statutory discretion committed to the Minister. The usual rule is that material matters must be considered upon the basis of the information available to the decision maker at the date of his decision. There being no express provision to the contrary in the present case, any limitation excluding from the ambit of his consideration information on detriment placed before him otherwise than through the Commissioner's report may be justified only upon the basis that such a limitation is necessary to the effective operation of the legislative scheme embodied in the Act. The matters mentioned by Beaumont J provide support for the view that there is such a limitation but I have reached the conclusion that those matters should not he regarded as determinative. As Bowen CJ has pointed out, a considerable period may elapse between the delivery of the Commissioner's report and the Minister's decision. It is not difficult to think of examples of matters arising in that time which it would be absurd for a Minister to be required to ignore: strategic developments or technological changes giving rise to a need for an important new defence facility affecting land the subject of a claim; changes in the public importance of the exploitation of a particular mineral deposit because of new technology or of a major variation in the cost or in the availability of alternative sources of energy; the modification or discontinuance of relevant activities by a person reported as potentially suffering detriment, so that the reported detriment will in any event be reduced or eliminated. As the examples indicate, the new facts may cut either way, tending to support or to reduce the case for a land grant. Consequently, it cannot be said that to ignore new events is necessarily conducive to the attainment of the objects of the Act; it may serve to frustrate that attainment. It is true, as Beaumont J pointed out, that regard for new events may create administrative problems but there are available methods of resolving any factual issue. As was pointed out in Meneling Station: see Wilson J at p 67 and Brennan J at p 72, the ultimate decision is a political decision required to be made by a Minister responsible to the Parliament. It is, I think, inherently unlikely that Parliament would require a practising politician to make a political decision which ignored current facts and policies bearing upon any matters the subject of comment under s.50(3) of the Act. For those reasons I accept the submission of the appellants that it is the duty of the Minister, in considering his recommendation under s.il, to have regard to material before him which updates the findings of the Commission, or which provides new information, upon the matter -of detriment. It does not follow that the Minister is bound to accept the correctness of the new assertions made to him; to do so in any case where there was room for dispute would be potentially unfair to other parties and may lead to an erroneous decision. But if the new material, having regard to its source and its content, is prima facie credible and relevant to the existence or extent of detriment there is an obligation upon the Minister at least to consider whether to seek confirmation of the accuracy of that material for the purpose of taking it into account as relevant factual matter. ~The Minister may take the view that confirmation would serve no useful purpose;-that—even-if-the assertions were confirmed the decision would be the same; but I think that the Minister must at least ask himself or herself the question. The third category of new material mentioned in argument on behalf of the appellants, the correction of errors or the explication or ambiguities in the Commissioner's report, presents greater difficulties of principle. There remains the duty of the Minister to consider matters listed under s.50(3) as at the date of his or her decision; so that if an "error" has been "corrected" in a letter from a party received between the date of the report and the date of decision then the contents of that letter are a material matter for consideration. Once again, of course, the Minister is not bound to accept the accuracy of the "correction". Unless the Commissioner's mistake is manifest, the Minister has nothing more than an assertion of error by an interested party. The Minister's duty could not rise above an obligation to consider the necessity of investigating whether or not there was an error. Having considered that question, the 5. Minister might decide that it is not necessary to resolve the matter because - even accepting the correction - the decision would be the same. There were occasions during the argument when the appellants' counsel seemed to suggest that, if Mr Holding had a duty to consider matters of detriment arising otherwise than out of the Commissioner's report, he was bound to take into account as facts the assertions made to his predecessor, Senator Baume, in various communications from the appellants. Although it does not appear that Mr Holding ever saw the correspondence with Senator Baume, I agree that the Court should treat that correspondence as being before Mr Holding when he made his gecision. The various letters were written to Senator Baume in his capacity as Minister for Aboriginal Affairs. They related to a statutory responsibility of that Minister and to a decision which Senator Baume, or a successor in that office, would one day have to make in that capacity. Under those circumstances, and in the absence of evidence to the contrary, it should be inferred that the correspondence was not treated by Senator Baume as personal communications but was received on to the relevant departmental file so as to be available to any subsequent Minister. Upon that basis Mr. Hulding, who had access to the departmental file, must be regarded as having constructive knowledge of the correspondence, so that the lack of actual knowledge becomes immaterial. 6. However, that conclusion merely means that the case is to be judged on the same basis as if it were shown that Mr Holding had actual knowledge of the letters but had resolved to put them out of his mind when considering his decision. He would not have been obliged to accept at face value the accuracy of the factual assertions in the letter; indeed to do so, without providing to them an opportunity to be heard, would have been unfair to other parties and especially the claimants for land grants. At its highest the appellants' case may amount merely to a claim that, if the assertions had prima face credibility, Mr Holding was bound before reaching a decision to ask himself the question whether he should carry out an investigation of their accuracy in point of fact. Not without hesitation, I have come to the conclusion that Mr Holding was under an obligation, in exercising his statutory discretion, to consider whether he should investigate the claims made by the appellants. The claims were relevant toa matter falling for his consideration: the degree of detriment that would be suffered by the appellants if the land was granted to the Aboriginal claimants. As I have pointed out, Mr Hoiding was not only not bound to accept the appellant's assertions on that matter; ne would not have been entitled to do so without proper notice to the other interested parties. He was not even bound to enquire into the accuracy of the appellant's assertions; he would have been entitled to take the view that, even if the accuracy of the assertions was established, his decision would be unaffected, that other considerations should result in the land grant proceeding. He would, in my opinion, have been entitled to take into account the circumstances under which, and manner in which, the assertions were made; taking the view that there was an important distinction, in terms of the proper administration of the Act, between the investigation by the Minister of an alleged error of a Commissioner in understanding or accurately reporting frank, clear and accurate evidence placed before him by the person now asserting error and an alleged error occasioned by the asserter himself. But, although all of those matters might have been taken into account in considering the matter, the duty remained for the Minister to ask himself whether he should investigate the appellants' assertions. Mr Holding, being in fact unaware of the assertions, did not ask himself that question with the result that his decision was technically invalid. Ordinarily, that would be enough to dispose of the matter. As a general rule an invalid decision taken in the 'exercise of a statutory discretion should be set aside by the Court and the matter remitted for further consideration in accordance with the law. It may be that the ultimate decision will be to the same effect as the decision set aside by the Court but that is not for the Court to predict; and, even if the result is the same, such a course will vindicate the public interest in requiring statutory decision makers to act only within the strict confines of the law. However, s.16 of the Administrative Decisions (Judicial Review) Act 1977 makes the grant of relief under the Act dependent upon the exercise of the Court's discretion in favour of the applicant for relief. in so doing, the Act recognises that there may exist circumstances outweighing that general public interest and under which even a legally invalid statutory decision ought not to be set aside. Without in any way attempting to define those circumstances, or to circumscribe the exercise of the Court's discretion, it seems to me that one such occasion will be where it can be seen that to grant relief will tend to militate against the proper operation of the relevant Act in future cases. This is, in my opinion, the present situation. It appears that the problem which confronted the Minister, and which now confronts the Court, arose out of a tactical decision by the appellants not to reveal to the Commissioner the precise whereabouts of Ranger 68: information relevant to his task and which the appellants now complain should have been taken into account by the Minister in considering the Commissioner's report and the decision proper to be made under s.11. To uphold their claim would be to encourage parties in other cases to subvert the statutory procedure in the same way, to by-pass the Commissioner and to rely upon statements of fact made directly to the Minister. Such a course must necessarily deprive the Minister of the assistance envisaged by the Act: the Commissioner's comments and the testing of the accuracy of allegations of fact by other parties and by the Commissioner himself. 9. It is' important to my view of the present case that there were no relevant new events between the date of the hearing before the Commissioner and the date of the Minister's decision. According to the written statement of evidence tendered to Toohey J of Mr J NW Elliston, a qualified geologist holding the offices of Director and of Group Executive - Technology of Peko Wallsend and the appellants' principal witness before the Inquiry, such drilling as had occurred in the Ranger 68 area - summarized by him as "8 holes in an incomplete pattern which were not all drilled to depth" - ail took place in 1976 and 1977. It has never been suggested that any further drilling occurred after Mr Elliston's evidence was given. It follows that, when his Honour heard the evidence for the appellants in February 1981, they had available to them the whole of the material which could have been taken into account by the Minister, or by anyone else, in deciding what detriment would be suffered by the appellants as a result of a decision in March 1983 to proceed with a land grant. They knew exactly what land they described as Ranger 68; they knew where the exploration holes had been drilled and with what results. According to their subsequent assertions, Ranger 68 is predominantly within the area claimed by the Mirarr Kundjey'mi. According to a map revealed to the Minister and the Aboriginal claimants for the first time only at the hearing before Beaumont J, the deposit lies at the extreme north east of the general area described by the appellants as the Barote lease area. The Barote lease area was described by Mr Elliston in his oral evidence to the Commissioner - looking at the map tendered to Beaumont J, 10. correctly to my eye - as being 90% within the Dadjbaku claim area with the balance in Mirarr Kundjey'mi land. Immediately thereafter, and referring to the Barote lease area, Mr Elliston went on to say: "There were two mineralised prospects in that - Ranger 4 and Ranger 68 are the significant ones. Ranger 5 also appears within it. Ranger 4 is to the southern extremity of it and Ranger 68 is in the centre of it". That evidence in relation to Ranger 68 is inconsistent both with the claims subsequently made to Senator Baume and with the map tendered before Beaumont J. The map puts the centre of the Barote lease area, about which Ranger 68 was said to lie, well into Dadjbaku land. The parties have proceeded before us upon the assumption that the map is accurate. Upon that assumption the evidence placed by the appellants before Toohey J was grossly misleading. At no stage has any explanation been offered either for Mr Elliston's initial error or for the failure of the appellants to correct the error with the Commissioner. The appellants were represented by senior and junior counsel and by solicitors, to whom a transcript of Mr Elliston's evidence was available. It is possible that the appellants deliberately misled Toohey J into thinking that the majority of Ranger 68 was in the Dadjbaku claim area - perhaps because they erroneously thought that this claim would prove to be stronger than that of the li. Mirarr Kundjey'mi, perhaps to mislead their competitor, Pan Continental - but I think that this is unlikely. The case presented, from first to last, both to the Commissioner and to Senator Baume, was for the excision from any land granted to Aboriginal claimants of the whole of the lands in which they were interested. To speak generally of $6 million expenditure incurred and of uranium in Ranger 68 worth $280 million at current prices, as they did, might be thought supportive of such acase. To specify with any exactitude the precise location of the mineralised areas might encourage consideration whether particular areas, out of the whole, might reasonably be granted to the claimants. In his letter to Senator Baume of 25 September Mr GH Mackay, the Managing Director of EZ, said that "for various reasons" the appellants "did not specify in our evidence precisely where Ranger 68 is". I think that this accurately states the tactical course they adopted. I think that they did not intend to inform the Commissioner of the whereabouts of the deposit, that the error unwittingly occurred in the course of deliberate - and, for a scientist, probably untypical - vagueness by Mr Elliston and that, if the error was noticed, it was thought better left uncorrected since any correction would inevitably involve a precise disclosure of the true position. Although I am prepared to accept that there was no intention actively to deceive Toohey J, there was an intention to provide him with something less than full and frank information upon a subject in relation to which he was required by the Act to report the facts to the Minister. For tactical reasons the appellants chose to 12. ignore the obligations placed upon them by the statutory procedure. They pinned their hopes upon the success of an "excise all areas" approach. That having failed, the Minister having rejected the proposition that all lands over which there were mining interests should be withheld from grant, the appellants now seek the assistance of the Court in compelling the consideration of a different case; one calling for the identification and exclusion of that particular part of their holdings which they call Ranger 68. And, ironically, it is the incorrect information supplied to Toohey J which furnishes the basis of their claim. But for that incorrect information there would be no "error" to be "corrected". The comments made by Toohey J in his report only reflected the substance of Mr Elliston's evidence. The position is that the Court is asked to intervene to set aside the Minister's decision and to compel him to consider whether he will investigate the accuracy of the claim now made that Toohey J erred in accepting evidence given on behalf of the appellants whose inaccuracy was a direct function of the policy of vagueness adopted by the appellants. If it were not previously apparent, the consequences of the appellants' tactics of vagueness and of Mr Elliston's error must have become apparent upon the release of the Commissioner's report. The appellants had read the report by 2 September 1981. On that day Mr Holcroft, Chief Executive of Peko Wallsend, wrote to Senator Baume enclosing an 18 page submission, which contained this passage: i3. "Among the mineral lease applications on land recommended for grant is the uranium prospect known as Ranger 68 which is by far Peko ard 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 unsuccessfully 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'mi and the qualification in paragraph 320 must be read accordingly." Mr Holcroft did not tell the Minister that the Commissioner's non-awareness of the relationship between Ranger 68 and the boundary of the Mirarr Kundjey'mi land was a result of inaccurate evidence of Mr Elliston. The Minister was not asked to address himself to the desirability of identifying and excluding from the recommended Mirarr Kundjey'mi grant the land within Ranger 68. Rather, in the words of Mr Holcroft's letter: "In short, what Peko and EZ are saying in the submission is that you should not he satisfied that all land recommended for grant by the Commissioner be granted to a Land Trust; further, you should excise from any such land the land the subject of Peko and EZ's mineral lease applications and any land necessary to get access thereto". Senator Baume replied on 6 October 1981, acknowledging Mr Holcroft's letter and promising to take the submission into account. In the meantime, on 25 September 1981, Mr Mackay of EZ wrote to Senator Baume referring to a meeting which he and Mr 14. Holcroft had had with two other Ministers, Mr J D Anthony and Senator Carrick, the previous evening at which they had "discussed the case for excision of our Barote mineral lease applications from any grant of land to be made to aboriginals". The letter went on to refer to two maps handed over at that discussion. One of these maps was described as "a detailed one of the Barote area showing our drill holes, and clearly indicating that the mineralised Ranger 68 drill holes are all within the area recommended for grant to aboriginals by Toohey J". The letter referred to the view expressed by Toohey J that the possible detriment to the companies was lessened by the fact that only the eastern prospects of the companies fell within the land recommended by him for a grant and went on: "Thus we believe that the E-Z/Peko detriment is far greater than was found in the Report by Toohey J, as, for various reasons, we did not specify in our evidence precisely where Ranger 68 is. Unless this area is excised from any grant, all our known mineralised areas within Barote will become Aboriginal land and then be subject to the veto power." Neither the letter nor - apparently - the maps identified the limits of Ranger 68 so as to permit the Minister, if he had been so inclined, to exclude that particular area from any grant. This was not the request that the companies were making. As before, they were seeking the excision of the whole of their Barote leases from any grant. That position was ! { i | cee ne ee ee ee ee 15. confirmed in a letter of 28 September 1981 from Mr Holcroft to Mr Anthony - a copy of which Mr Holcroft sent to Senator Baume - in which he referred to the meeting of 24 September 1981 and said: "During the course of the meeting you will recall asking us what precedents or authority we could provide which would entitle the Minister for Aboriginal Affairs to do as we are now requesting, namely, to excise from any land to be granted to a Land Trust for the Mirarr Kundjey'mi that relatively small area of land, being part of the Barote lease block, which is the subject of our mineral lease applications". On 25 November 1981 Senator Baume forwarded to Mr Holcroft a telex in which he referred to an announcement made by him on 22 July - presumably when he released the Commissioner's report - that a period of two months would be given to any party wishing to lodge a legal challenge in respect of the findings of the Commissioner. Senator Baume pointed out that it was then four months since that announcement had been made and he expressed the view that ample time had elapsed for the preparation of a legal challenge. He said that if the company did propose to lodge a legal challenge it should do so within fourteen days, failing which he would proceed on the basis that there is to be no legal challenge. On 4 December 1981 Mr Holcroft wrote to Senator Baume pointing out that the company had recently commenced proceedings in the High Court of Australia in respect of the report of the Commissioner in relation to the Finniss River land claim: the Meneling Station case. However, the letter went on to say that the companies "have no objection ~ ere 16. to your making a decision with respect to that land claim provided that you make the excision Peko and E-Z have sought from the land recommended for grant". On 18 January 1982 Senator Baume responded to Mr Holcroft indicating that in view of the application lodged with the High Court in connection with the Finniss River claim he was prepared to defer his decision in relation to those parts of the Alligator River Stage II claim area recommended for grant and over which Peko and E-Z had made application for mining interests. He sought "a listing and descriptions of the areas involved". On 10 February 1982 Mr Holcroft wrote to Senator Baume enclosing a list of the interests of Peko and E-Z in relation to land recommended by the Commissioner for grant to Aboriginal land trusts. The list identified various areas by reference to the mining lease application number, the totality of the land within each specified area being the subject of a metes and bounds description. The areas known as Ranger 4, Ranger 34, Ranger 35, Ranger 57, Ranger 64, Ranger 65, Ranger 66 and Ranger 67 were identified as such with a statement of the relevant mining lease application numbers and metes and bounds descriptions. There was no similar identification of Ranger 68. Rather the area which, as the evidence now appears, includes Ranger 68 was treated 17. simply as part of a large area described as "Barote area", in relation to which there was supplied a list of mining lease application numbers and an overall metes and bounds description. It is, I think, relevant to note that, notwithstanding their awareness of the misunderstanding of Toohey J resulting from the evidence as to location given to him, the appellants did not at any stage take Senator Baume - or either of his successors - into their confidence-as-to-the-precise location of Ranger 68. They supplied no map to locate that deposit. At a time when they supplied metes and bounds descriptions of each of the other Ranger deposits they simply included Ranger 68 in a large parcel of land straddling the boundary of the land recommended for grant and described as "Barote area". No submission was ever put to any Minister that if the companies' "excise all areas" approach were rejected the Minister ought to exclude any specifically identified area because of its special importance. The nearest the appellants came to such a submission was in Mr Mackay's letter of 25 September but even this letter was extremely vague. It did not claim that the whole of Ranger 68 was in Mirarr Kundjey'mi land, still less provide details to support such a claim. It merely stated that all the existing drill holes - the Minister had previously been told that there were only eight - were in Mirarr Kundjey'mi land. That 'statement was not inconsistent with the understanding of Toohey J that Ranger 68 was partly, although only to a minor degree, in Mirarr Kundjey'mi land. 18. The companies may have been confident of the ultimate success of the case they put first to Toohey J and then to Senator Baume: the total exclusion of all leased areas. That case having been rejected, they now attack the failure of Mr Holding to consider a case on detriment which they never explicitly put to anyone and which arises out of an error forced upon Toohey J by their tactics of vagueness and their erroneous evidence. In my view the Court should not permit them to do so. The second matter relied upon by the appellants may be disposed of more briefly. The departmental memo recommending the decision which the Minister made referred shortly to the comment upon detriment to the appellants made by the Commissioner in his report. There was undisputed evidence before Beaumont J that the Minister had in his possession copies of that report and that he had been seen reading it. There was nothing before the trial judge to establish that, at the date of his decision, the Minister was in fact unaware of the totality of the comments of the Commissioner upon the matter of detriment. There is therefore no basis for any submission of actual failure to have regard to those comments, and indeed no such submission was put. The appellants contend, however, that there was a constructive failure to pay regard to the Commissioner's comments on the matter of detriment. They refer to the Minister's letters of 26 April 1983 in which he informed Mr Copeman and Mr Mackay of Ce me ee ee ee ee ee ee 19. his decision without making express reference to the detriment which their two organisations would suffer as a result of that decision, his reasons for decision notified pursuant to s.13 of the Administrative Decisions (Judicial Review) Act on 24 May 1983 and certain material obtained by the appellants under the Freedom of Information Act 1982 and tendered in evidence in this case. The letters of 26 April do nothing to advance a case of constructive failure to pay regard to the matter of detriment. Those letters are merely communications of the fact of the decision. In their content they are neutral on the question whether the Minister had considered the detriment to the companies of a decision to recommend a grant; it was not incumbent on the Minister to spell out his reasoning in conveying his decision. The fact that they were sent at all tends to support the inference that the Minister was aware that the two companies' interests would be affected by his decision; an inference consistent with his having considered the issue of detriment. The s.13 reasons have been quoted by Sheppard J. They include the reason that "the detriment, if any, which might result from the grant of this land is not sufficient to warrant refusing the grant recommended". The reasons, therefore, assert that the Minister was aware of an issue of detriment. Reference was made in argument to the qualification "if any" but this must be read in the light of Toohey J''s use of the words "potential ov 20. detriment". As the Commissioner pointed out, in para 316 of his report, there was - even in the absence of a land grant - "no guarantee that the companies would be given permission to mine in those areas found to be viable" and, of course, the viability of mining any area, even Ranger 68, had yet to be established. Finally, the material obtained under the Freedom of Information Act shows that in respect of some other claims, in relation to other types of detriment, fuller information was given by the Department to the Minister and that, in some cases, the Minister required further investigation of particular matters or the obtaining of undertakings before proceeding with a decision to recommend a grant. The circumstances of those cases are so dissimilar to those of the subject case that they provide no support for the appellants' submission. In my opinion the appeal should be dismissed. Beaumont J dismissed the Application but he added an order - order 2 - in relation to which both respondents have cross-appealed: that the dismissal of the Application be without prejudice to any right of the applicants to bring fresh proceedings ciaiming relief pursuant to s.50(1)(d) or 5.51 of the Land Rights Act. His Honour did not hold that the applicants did have any such right but merely intended to make clear that it was open to the applicants to seek from the Minister a decision referring to the Commissioner for advice the question raised by 21. the appellants' submission to Senator Baume. It is clear that the decision to refer a matter under s.50(1)(d) is for the Minister alone and that no other party is entitled to compel that step to be taken. The cross-appellants have submitted that the supplementary order adds nothing to the rights of the appellants to make such representations for a reference as they may wish and that it is inappropriate, and potentially misleading, to make a specific order in relation to the matter. The cross-respondents, the mining companies, concede that the order adds nothing to their rights. JI am of the opinion that it is unnecessary, and therefore undesirable, to retain this order. The cross-appeal should be allowed and order 2 set aside. The appellants should pay the costs of both the appeal and the cross-appeal. I certify that this and the "wenby (26) preceding pages are a true copy of/ the Reasons for Judgement herein of his Honour Mr Justice Wilcox. Associate Kad] WMA EIS Q eo