CATCHWORDS ADMINISTRATIVE LAW - Administrative Decisions (Judicial Review) Act 1977 - Indication by Minister of intention pursuant to s. 11 of Aboriginal Land Rights (Northern Territory) Act 1976 to proceed with recommendation to Governor-General for the making of land grants - scheme of Land Rights Act discussed - whether decision made by Minister to recommend land grant is subject to review under Judicial Review Act - whether relevant decisions were made by Governor-General and therefore within exclusion of sub-s. 3(1) of the Judicial Review Act - whether "decision" had yet been made by Minister - whether legally binding agreement for future use of land claimed could be made between the Northern Territory and the Central Land Council before land granted - whether the possibility of future Commonwealth legislation is a relevant consideration for Minister in deciding whether land grant should be recommended to Governor-General - whether Minister failed to take into consideration requirements of Land Rights Act - whether Court's discretion should be exercised. Aboriginal Land Rights (Northern Territory) Act 1976: ss. 1l, 12, 14, 50, 67 and 74, Acts Interpretation Act 1901: s. 16A. Administrative Decisions (Judicial Review) Act 1977: ss. 3 and 5. THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA v. MINISTER FOR ABORIGINAL AFFAIRS and GEORGE BROWN JUNGARRAYI, J.AWRENCE KELLY JAITAMARRA No. G 378 of 1986 COURT: LOCKHART, NEAVES and GUMMOW JJ. 23° JULY 1987 SYDNEY THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G. 378 of 1986 GENERAL DIVISION wwe we ww On Appeal from a Single Judge of the Federal Court of Australia BETWEEN: THE ATTORNEY GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA Appellant AND: MINISTER FOR ABORIGINAL AFFAIRS First Respondent AND: GEORGE BROWN JUNGARRAYI LAWRENCE KELLY JAITAMARRA Second Respondents JUDGES MAKING ORDER: LOCKHART, NEAVES and GUMMOW JJ. DATE OF ORDER: 23 JULY 1987 WHERE ORDER MADE: SYDNEY MINUTE OF ORDERS THE COURT ORDERS THAT: NOTE: The appeal be dismissed. The appellant pay the costs of the first and second respondents. SETTLEMENT AND ENTRY OF ORDERS IS DEALT WITH IN ORDER 36 OF THE FEDERAL COURT RULES. THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G. 378 of 1986 wwe rev wv GENERAL DIVISION On Appeal from a Single Judge of the Federal Court of Australia BETWEEN: THE ATTORNEY GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA Appellant AND: MINISTER FOR ABORIGINAL AFFAIRS First Respondent AND: GEORGE BROWN JUNGARRAYI LAWRENCE KELLY JAITAMARRA Second Respondents COURT: LOCKHART, NEAVES and GUMMOW JJ. 23 July 1987 REASONS FOR JUDGMENT Lockhart and Gummow JJ. Introduction This is an appeal from the decision of a single judge of this Court dismissing an application for review under the Administrative Decisions (Judicial Review) Act ("the ADJR Act"). The appellant was the applicant for review and the first respondent ("the Minister") the decision maker. The enactment under which the Minister had exercised powers in the manner complained of by the appellant was the Aboriginal Land 2. Rights (Northern Territory) Act 1976 ("the Land Rights Act"). The controversy was precipitated by the Minister notifying the Chief Minister of the Northern Territory by letter dated 23 December 1985 that he was satisfied that certain land comprised in what is known as the Tennant Creek Water Control District should be granted to land trusts to be established under the Land Rights Act and that he would recommend to the Governor-General that a qrant of an estate in fee simple be made under the Land Rights Act to those trusts to be held for the benefit of certain aboriginals, as traditional owners. The application for review was resisted both on the ground that there was no "decision" to which the ADJR Act applied and on the ground that, even if there had been such a decision, no ground for review within the meaning of s.5 of the ADJR Act had been made out. The learned trial Judge held he had = jurisdiction, there having been the necessary "decision", and dismissed the application on the merits, holding that no ground for review had been established. This made 1t unnecessary for his Honour to rule upon a submission that, even 1f a ground for review had been made out, the Court, as a matter of discretion, should withhold relief. All these matters were agitated upon the appeal. The relevant primary facts were not in dispute, but there was disagreement between the parties as to the 3. inferences to be drawn from the correspondence that was in evidence. In particular, there was no direct evidence from the Minister as to what considerations were included in and excluded from consideration by him in reaching the decisions impugned by the appellant; and the Court was invited to reach varied conclusions from its consideration of the documentary material. The Legislation It 1S appropriate first to describe those provisions of the Land Rights Act against which the facts are to be understood. The legislation has been taken as it stood in December 1985 at the time of the decision of the Minister which 1s complained of. It has since been further amended, but not in any way presently material. Under s.50 of the Land Rights Act the Aboriginal Land Commissioner inquires into, and reports to the Minister and the Administrator of the Northern Territory upon claims made by or on behalf of aboriginals who assert a traditional land claim to areas of land in the Territory. The Commissioner 1S reguired to comment in his report, inter alia , upon "the detriment to persons or communities ... that might result if the claim were acceded to either in whole or in part": para. 50(3)(b). Sections 11 and 12 deal with the making of recommendations for a grant of, and the granting of, land in 4. respect of which the Commissioner has made a recommendation. Those sections, so far as material, provide: "11.(1) Where -- (a) the Commissioner has, before the commencement of the Aboriginal Land Rights Legislation Amendment Act 1982, recommended, or, after the commencement of that Act, recommends, to the Minister ina 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 - (1) that the land, or a part of the land, should be granted to a single Land Trust to be held for the benefit of Aboriqinals who are the relevant Aboriginals in relation to that land or that part of that land; or (ii) that different parts of the land should be granted to different Land Trusts so that each Land Trust holds the land granted to it for the benefit of Aboriginals who are_ the relevant Aboriginals in relation to that last-mentioned land, the Minister shall-- (c) establish-- (1) in a case where he is satisfied that the land, or a part of the land, should be granted to a Single Land Trust- a single Land 5. 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 (11) in a case where he is satisfied that different parts of the land should be granted to different Land Trusts- 2 or more Land Trusts under section 4 respectively to hold those different parts of that land for the benefit of Aboriginals who are the relevant Aboriginals in relation to the parts of the land respectively proposed to be held by each of those Land Trusts; (d) where land in respect of which a Land Trust has been or 1s 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 (e) after any acquisition referred to in Paragraph (d) has been effected in relation to land and a Land Trust has_ been established in accordance with paragraph (c) in respect of that land, recommend to the Governor-General that a grant of an estate in fee simple in that land be made to that Land Trust. (4) In this section, 'relevant Aboriginals', in relation to an area of land, means Aboriginals entitled by Aboriginal tradition to the use or occupation of that area of land, whether or not the traditional entitlement is qualified as to place, time, circumstance, purpose or permission." "12.(1) Subject to this section, on the receipt of a recommendation under section 10 or 11 with respect to land, the Governor-General may - (a) ain the case of a recommendation under sub-section 10(1) or section 1ll- execute a deed of grant of an estate in the land in accordance with the recommendation = and deliver it to the grantee; or (b) in the case of a_recommendation under sub-section 10(2)- execute a deed of grant of an estate in the land in accordance with the recommendation and deliver it to the Land Council referred to in the recommendation on the condition that it he held by the Land Council in escrow, and subsequently delivered to the grantee, in accordance with the recommendation. The High Court has held that, in exercising his powers under para.1l1(1)(b), the Minister 1s bound to take into account the comments' of the Commissioner on the matters in para.50(3)(b) dealing with what we shall compendiously describe as "detriment": Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1986) 66 A.L.R. 299. The applicant for review in this case, the appellant before us, argued that in exercising his powers' under para.11(1)(b) the Minister failed to take into account the question of detriment to the Northern Territory in respect of the water supply to Tennant Creek. It was also argued that the Minister, in the course of exercising those powers, took irrelevant considerations into account and committed an error of law. Section 74 provides that the Land Rights Act "does not affect the application to Aboriginal land of a law of the 7. Northern Territory to the extent that that law 1s capable of operating concurrently with this Act". Section 70 prohibits persons from entering and from remaining upon Aboriginal land unless, amongst other circumstances, they enter pursuant to a law of the Northern Territory. "Aboriginal land", so far as presently material, is defined in sub-s. 3(1) as meaning land held by a Land Trust for an estate in fee simple. [Land Trusts are bodies corporate established by the Minister (s.4), primarily to hold title to land vested in them in accordance with the Act (s.5). No Land Trust is empowered to accept or give a valid discharge for moneys owing to 1t; such moneys may be paid to the Land Council for the area in which the Land Trust holds or 18 established to hold land (s.6). Land Councils are bodies corporate established by the Minister (ss. 20, 21) whose functions include negotiation on behalf of traditional Aboriginal owners of land in their respective areas, being held by a Land Trust, with persons desiring to use, occupy or obtain an interest therein (para. 23(1)(e)). Section 67 prohibits the compulsory acquisition of Aboriginal land under any law of the Northern Territory. Sub-section 14(1) provides, in part, that where, on the vesting in a Land Trust of an estate in fee simple in land, the land is being occupied or used by the Crown, the Crown 15 entitled to continue that occupation or use for such period as the land 1s required by the Crown. The expression "the Crown" 8. includes the Crown in the right of the Commonwealth and in the right of the Northern Territory (sub-s.3(6)). Finally, sub-s.19(4) provides that, with the consent in writing of the Minister and at the direction in writing of the relevant Land Council, a Land Trust may, inter alia, grant a lease or licence in respect of the whole or any part of the land vested in it to any person for any purpose. The Facts A brief narration of the facts 1s not possible; but in compensation the case 1s one of those where an understanding of the facts suggests the true answer. In November 1978 two applications under the Land Rights Act for land grants were lodged with the Aboriginal Land Commissioner. The first was entitled after amendment,the Warlmanpa, Warlpiri, Mudbura and Warumungu Land Claim ("the Warlmanpa claim"). Between October 1980 and June 1981 the Aboriginal Land Commissioner, Toohey J., acting pursuant to s.50 of the Act, took evidence and heard addresses regarding this claim. On 30 September 1981 he presented his report. The report recommended the grant to a Land Trust of most of the unalienated Crown land in the claim area; but the Commissioner drew attention to the fact that the Warrego Water Control District, as constituted in accordance with s.1fA of the 9. Control of Waters Act 1938 (NT), lay within the claim area. He referred to evidence of a proposal to constitute a much larger area of land as the Tennant Creek Water Control District. went on: the Kaytej, claim"). report of the Commissioner was dated 26 March 1982. "332. The continuation of the Warrego Water Control District and the constitution of the Tennant Creek Water Control District would not be affected by a grant of land to a Land Trust. The constitution of a water control district does not affect the status of the land and the regulation of activities within such a district is preserved by s.74 of the Land Rights Act to the extent that the Northern Territory law is capable of operating concurrently with that Act. ... 333. There was evidence of an intention by the Water Division of the Northern' Territory Department of Transport and Works to 'carry out investigation drilling over the whole of the Wiso groundwater basin area and this will necessitate the clearing of access tracks, drill sites and camp sites' ... Such activities appear to be authorised by s.16FA of the Control of Waters Act and consistent with s.74 of the Land Rights Act. Section 70(1) allows a person to enter and remain on Aboriginal land in the performance of functions under a law of the Northern Territory; should a permit be required to enter Aboriginal land, s.6 of the Aboriginal Land Act provides that the Minister may 1SsSue a permit to a person employed under or by virtue of an Act of the Northern Territory. 334. The Northern Territory Government owns no water-related capital assets within the claim area but expressed concern that bores sunk on the land would become the property of the traditional Aboriginal owners ..." The second claim was known, again after amendment, It was heard in December 1981 and January 1982. He as Walpiri and Warlmanpa Land Claim ("the Kaytej The Toohey J. recommended the grant to a Land Trust of the whole of the land 10. claimed. But, once again, he referred to the proposed Tennant Creek Water Control District. He mentioned the significance of an increased supply of water to the town of Tennant Creek and commented at para. 129: "To the extent that the town and adjacent areas are dependent upon water, it is important that some arrangement be made guaranteeing the supply of water in the event that the land becomes Aboriginal land. To say that 1s not to suggest that the claimants would not be prepared to enter into such an arrangement, but in the interests of all concerned it is better that the matter be resolved now." Shortly after the presentation of the second report, the Minister for Transport and Works of the Northern Territory abolished the Warrego Water Control District and constituted the Tennant Creek Water Control District. By his instrument, and pursuant to sub-s.16B(1) of the Control of Waters Act, the Minister prohibited the sinking or constructing of any well or water bore within the District except in accordance with a permit granted under that section. The instrument was later amended to extend the prohibition to the use of any well or water bore. The recommendations of the Commissioner enlivened s. 11 of the Land Rights Act. On 8 September 1983, the Minister announced by press release his acceptance of the recommendations for grants contained in the two reports. He referred to "the need to ensure that the water supply for the town of Tennant Creek be supplemented from the claim areas 1f ll. necessary" but expressed his confidence that "the traditional owners and the Land Council are prepared to make reasonable arrangements to meet the needs of others". On 14 September 1983 the then Chief Minister of the Northern Territory wrote to the Minister seeking information as to the basis for his statement as to the attitude of the traditional owners and the Land Council. There was no immediate direct response to this letter. However, on 23 September 1983, an officer of the Department of Aboriginal Affairs wrote to the Director-General of the Department of the Chief Minister giving certain details about "assurances given by the Land Councils and the traditional owners" in relation, inter alia, to these two land claims. On the topic of detriment to water supply, in respect of the Kaytej claim, the letter stated that: "the traditional owners clearly indicated to the Central Land Council that they are mindful of the detriment issues which the Commissioner mentioned in his report and are keen to make arrangements with the parties concerned. In particular, they are willing to make arrangements for the development and use of water supply facilities in the Tennant Creek West Borefield area". On 19 October 1983, in a direct response to the Chief Minister's letter of 14 September, the Minister' said: "As to the details of arrangements to protect the interests of other parties, I was concerned to ensure before making my decision on both the Warlmanpa and Kaytej claims, that persons presently using parts of the claim areas do not 12. suffer undue detriment as a result of the land being granted to Land Trusts. I therefore obtained written assurances from the traditional Aboriginal owners and the Central Land Council, as detailed below. Town of Tennant Creek The traditional owners have undertaken to make appropriate arrangements for the development and use of water supply facilities in the Tennant Creek West Bore Field area." A few days later, on 25 October 1983, the Minister elaborated: "Further to my letter of 19 October concerning the Warlmanpa and Kaytej land claims, I expect that your Government will wish to enter unto an agreement with the relevant Aboriginal Land Trust zn respect of the development and use of water supply facilities in the Tennant Creek West Borefield area. The agreement would be signed immediately after title has been granted to the Land Trust. I wish to inform you that title will not be granted to the Trust until your Government has had sufficient time to settle the details of the agreement. My officers will liaise with yours in respect of progress in this matter." On 6 December 1983 the Minister added that the Central Land Council had indicated to his officers "that the traditional owners have no intention of seeking unreasonable conditions for the use of their land by ..., in respect of the future water needs of Tennant Creek, the Northern Territory Government", 13. So far as the evidence indicates, there was no further communication between the two governments concerning those land claims for a period of fifteen months. On 11 March 1985 the Minister wrote to the Chief Minister, a letter expressing concern at "the time being taken in finalising arrangements to provide for the interests of some parties affected by these claims". In particular, he noted that no agreement had been reached with the Central Land Council regarding the interests of the Northern Territory. The Minister indicated that he had decided to grant all of the land recommended for grant by Toohey J. in both claims except the area forming Tennant Creek Water Control District, in respect of which area he said that he had "reserved" his decision for the time being. The letter went on: "I would hope that your Government can finalise its negotiations with the Central Land Council in this matter as soon as possible. I would be prepared to assist in arranging for an Arbitrator to be provided should there be difficulties in finalising this matter as I am anxious to deal with the remainder of the land in both claims as soon as practicable. However, 1f those negotiations are not settled within a reasonable time I may, unless there are compelling reasons for me not to do so, arrange for the remainder of the land to be granted without further notice." The response of the Chief Minister, dated 12 April 1985, did not take up the suggestion of negotiations but canvassed broader matters. After stating his Government's commitment "to advancing the interests of Aboriginals in the Northern Territory in a fair, balanced and harmonious way" the 14. letter went on to express the "firm" view of the Northern Territory "that public purpose lands should not be available for claim, nor should they be granted". The letter noted the policy of various States concerning public purpose lands and claimed that "significant parts" of the Control of Waters Act cannot apply to Aboriginal land because of the "restrictions" contained in s.74 of the Land Rights Act. He complained that his Government, unlike the State governments, "1s denied the power to acquire any interests in Aboriginal land for public purposes no matter how vital or important that public purpose may be", The Chief Minister expressed the belief that negotiations could not, and should not, be finalised until Maurice J. presented his report in relation to a further land claim, the Warumungu (Tennant Creek) Land Claim. The letter stressed "that 1t has been my Government's consistent submission that while you have a broad discretion under section ll of the Aboriginal Land Rights Act, it is the Commonwealth's responsibility and duty to resolve and alleviate any detriment flowing from this Commonwealth legislation". On 14 June 1985 the Minister replied to the Chief Minister's letter of 12 April 1985, in the following terms: "The policy of the Commonwealth Government 1s to ensure that the provision of water within the Northern Territory is not disturbed as a result of the grant of title to Aboriginal Land Trusts 15. under the Aboriginal Land Rights (Northern Territory) Act 1976. I do not think, however, that this policy requires that land claimed forming part of a water control district should be excised from a grant unless suitable arrangements in respect of the land under Aboriginal ownership cannot be made. In the case of the Warlmanpa and Kaytej claims, there 1s no reason yet to reach the conclusion that the interests of the Northern Territory Government cannot be accommodated satisfactorily. I understand that the Central Land Council has expressed a willingness to enter into negotiations regarding the land in the Tennant Creek Water Control District relating to the Kaytej and Warlmanpa land claim areas, and I would hope that your Government would wish to finalise negotiations in this matter as quickly as possible. It might be useful if these negotiations could be conducted so as to provide for all land that might become Aboriginal land in the Tennant Creek Water Control District in order that agreed arrangements in respect of the Warlmanpa and Kaytej claims could be readily extended to the relevant land in the Warumungu claim if that land is recommended for qrant by the Aboriginal Land Commissioner. I have suggested this approach to the Central _ Land Council. In the meantime, I am moving to have the' land in both claims, with the exception of the Water Control District, granted as soon as practicable." The Chief Minister responded to this letter on 7 August 1985. The material portion of that letter reads as follows: "Thank you for your letter of 14 June 1985. I am heartened by your statement of the Commonwealth Government's policy to ensure that the provision of water within the Northern Territory 1s not disturbed by grants under the Land Rights Act. This I take to mean that the Territory will retain all its powers under its legislation such that the Territory of 1ts own motion and without consent would be able to fully regulate and control the land, protect the resources and 16. environment, enable it to investigate and monitor, drill, establish permanent facilities such as bores, pumping facilities or whatever, extract water, lay pipes wherever, prevent occupation of sensitive areas which might foul the resources or obstruct the activities of the Government Agencies, and do all things necessary and convenlent to the foregoing. In the context of Water Control Districts and the Control of Waters Act, you are aware from Mr Justice Toohey's review, 'Seven Years On', that there are major problems with the Land Rights Act and in particular sections 67 and 74 of that Act, and there are doubts as to the vesting of groundwater. All need urgent legislative attention, As Toohey J. said, talking of constraints arising from section 74 of the Land Rights Act, which would prevent the Territory from drilling, laying pipes and supplying water: 'It is undesirable that these matters be left entirely to the context of a particular land claim. Section 74 should be amended to make 1t clear that' the Control of Waters Act is capable of operating concurrently with the Land Rights Act.' It is our firm and sincere view that under the current legislation it is neither desirable nor possible by means of covenants to make satisfactory arrangements acceptable to_ the Territory. The draft covenants sent to me by the Land Council would effectively deny the Territory its right to control and supply water. I believe all State Governments would find such proposals unacceptable. I have previously put the Territory Government's position that public purpose lands, especially such land vital to the existence and_ the development of Central Australia, ouqht not be the subject of a grant under the Land Rights Act. That 1s not to say that under' Territory legislation my Government will not make suitable arrangements for the grant of parts of the land within the District." It may be noted, with reference to the penultimate paragraph of this letter that on 26 April 1985 the Director of 17. Legal Services of the Central Land Council had written to an officer of the Northern Territory Department of Law enclosing a draft form of covenant "in order to resolve the concerns over water control in the Tennant Creek region." On 10 September 1985 the Minister wrote to the Chief Minister a letter in which he referred to his intention to introduce a bill for amendments to the Land Rights Act into the Parliament at the Autumn 1986 Session. The significance of this and the reference to the interim and longer term needs of the Northern Territory in respect of the Tennant Creek water supply were much debated in submissions on the appeal. The letter of the Minister reads; "IT have given careful consideration to the interests of your Government and TI am inclined to believe that a grant of the land in the Tennant Creek Water Control District (TCWCD) on the basis of assurances set out below would result in minimal, if any, detriment to your Government. As you point out, the concerns about detriment suffered in this claim arise largely from doubts about the extent to which the Control of Waters Act (NT) is capable of operating concurrently with the Aboriginal Land Rights (Northern Territory) Act 1976. You are aware of my intention to introduce a package of amendments to the Land Rights Act into the Parliament in the Autumn 1986 sittings. T will be recommending to Cabinet that these amendments should allow the Northern Territory Government to undertake works on Aboriginal land in accordance with the Control of Waters Act and to transport water off the land consistent with recommendations made by Mr Justice Toohey. The passage of these amendments will, therefore, fully protect the rights of the NT Government to control and use water on Aboriginal land. I intend to seek Cabinet endorsement of these amendments in the near future. 18. I note that your Government has not put forward any firm proposals regarding intentions to carry out works on the land in the TCWCD, although I understand that it is unlikely that any major works will be carried out within the next S years Or so. It seems likely that any work that will be carried out prior to the passage of these amendments can be done under the legislation as 1t currently stands. Further, I note that your Government's immediate needs may be accommodated under sl4 of the Land Rights Act. I believe that the section affords your Government adequate security for the interim period prior to the passage of amending legislation in 1986. There is no reason, of course, why your Government could not enter into some form of agreement with the Central Land Council for this interim period, if you thought that was necessary." By letter of 26 October 1985 the Chief Minister responded to the Minister's letter and reiterated the policy position stated in his letter of 7 August 1985 that public purpose lands ought not to be the subject of grant under the Land Rights Act. He said: "I wish to emphasise again the Territory Government's support for the grant of the balance of the land in both the Warlmanpa and Kayte) land claims. However, the Government cannot support the inclusion of the land designated as a Water Control District under the Control of Waters Act, and I ask you to give further serious consideration to the detriment that will flow from any contrary action. I note that your letter of 10 September 1985 does admit the possibility of detriment. I would also ask you again to consider directing the Central Land Council to approach me with the view of seeking the excision of areas under Territory legislation to cater for Aboriginal needs. I firmly believe that this process will prove to be the most apropriate way of reaching agreement on this complex and sensitive issue to the satisfaction of all parties concerned." 19. The Minister replied to that letter on 23 December 1985. He did so after receipt of a Ministerial Submission dated 6 December 1985. This recounted the history of the Matter including the question of detriment and concluded as follows: ", The Northern Territory Government's concerns about detriment suffered in this claim arise largely from doubts about the extent to which the Control of Waters (NT) Act is capable of operating concurrently with Aboriginal Land Rights (Northern Territory) Act 1976 (the Act) and 'in principle' objection to the granting of public purpose lands. . As it is unlikely major works will be carried out within the next 5 years there is little likelihood of any significant detriment in the shorter term. . Section 14 of the Land Rights Act guarantees continued occupation or use of land by the Crown or an Authority for such periods as the land 1s required. Section 70 would enable access in accordance with the NT legislation and Section 74 enables regulation of activities within such a district to the extent that the Northern Territory law 1s capable of acting concurrently with the Act. Justice Toohey expressed the view that this would not authorise the construction of permanent facilities to draw water and pipe it to places outside the claim area. . Detriment in the longer term would relate to having to negotiate terms and conditions for construction of new works with the Central Land Council as provided for in Section 19(3). Justice Toohey also made the following comments, 'In these circumstances, it must be a matter for a Minister to consider whether he is satisfied that there should be a grant of the land recommended, at any rate of the North Eastern Portion, unless satisfactory arrangements can be made to ensure the supply of water thereafter to be needed.' He also states, 'to the extent that the town and adjacent areas are dependent upon water, it is important that some arrangement be made guaranteeing the supply of water in the event that the land becomes Aboriginal land.' 20. The Northern Territory Government has been given reasonable opportunity to come to an agreement with the Central Land Council concerning the Water Control District. There 1S no reason to suppose the Land Council will in the future seek to impede capital developments for water supply purposes. The options available to you are as follows; (I) (IT) (III) grant the claim area excluding the Water Control District. (no change in current position) Current action 1S proceeding on this basis following your decision of March 1985 to take this action while arrangements with respect to Peko and the Northern Territory Government were finalised. grant the claim area excluding the Water Control District and announce your intention to grant the balance of the land when the Act 1s amended to put_ the interests of the NT beyond doubt and avoid potential detriment. To reconcile potential detriment under this option suffers from uncertainty with respect to the final form and passage of amendments. With other avenues available to the NT Government, the disadvantage suffered by Aborigines in the claim area in not granting the land needs to be balanced with potential detriment to the NT Government. The 'in principle' objections to granting lands reserved for a public purpose are essentially not in our view a detriment issue. grant the claim area excluding the Water Control District and indicate this land will not be granted if the NT provides for excisions. This 1s the option advocated by the NT Government. [In our view denial of a land claim to public purpose lands on the basis of prospective amendments which would preclude scope for it 1s in effect imposing both hypothetical and retrospective criteria to the claim process. 21. (IV) Grant the entire claim area as soon as possible. All issues of detriment with the exception of potential detriment to the Northern Territory Government with respect to future capital developments in the Water Control District have been resolved. This detriment issue could in our view have been resolved if the NT Government chose to negotiate with the Central Land Council. As 3 1/2 years have elapsed Since Justice Toohey presented his report 1t is a matter for judgement whether Aboriginal interests should continue to be disadvantaged. Suggested Response to Mr Tuxworth . Indicates you intend to grant the entire claim area including the Tennant Creek Water Control District (TCWCD). . Indicates you are seeking assurances from the CLC regarding cooperation in the TCWCD but you consider a formal agreement with the CLC more satisfactory. . Correspondence in similar terms has heen drafted to Bruce Donald, Director of Legal Services of the Central Land Council." The next step shown by the evidence, is, as we have said, the Minister's letter to the Chief Minister of 23 December 1985. The contents of this letter furnished the immediate basis of the application before the trial Judge in these proceedings and we shall quote it at length: "I have noted the Territory Government's continued support for the grant of the Warlmanpa and Kaytej land claims with exception of the area designated as a Water Control District under the Control of Waters Act. As you know legislation is proposed which will substantially accommodate the Northern Territory's position concerning the operation of the 22. Control of Waters Act, and concerning future claims on designated public purpose lands. I am, however, satisfied that any potential detriment for the Northern Territory Government arising from a arant of all of the land in the claim area can be satisfactorily mitigated through the existing provisions of the Land Rights Act and co-operation with the Central Land Council. While it is a matter for your Government, I would have thought a formal agreement between your Government and the Land@ Council would enable any final reservations concerning detriment to be put to rest. I do not regard the seriousness of potential detriment to he such to warrant holding up the grant in the absence of such an agreement. The Central Land Council has assured me of 1ts continued willingness to make appropriate arrangements with the Territory Government to allay fears of possible detriment through a grant of the TCWCD. Your letter indicates, however, that you have not sought to negotiate. To the extent you have proposed negotiations they are premised on the basis of an excision of the TCWCD. The Commonwealth's policy 1s to ensure that the provision of water within the Northern Territory is not disturbed as a result of the Land Rights Act, and I do not believe this policy requires that land claimed forming part of a water control district should be excised from a qrant unless suitable arrangements in respect of the land under claim cannot be made. It is now over 9 months since I announced my decision on the balance of the claim area and every opportunity has been provided to you and your Government to reach an agreement acceptable to both parties. I can only conclude that your reluctance to negotiate is politically motivated. Your failure to use this period constructively can be no longer allowed to Operate to deprive the Aboriginal community of the benefits of the recommendations of Justice Toohey. I am therefore informing you of my decision to recommend the 23. inclusion of the area of the TCWCD in the Warlmanpa and Katyej land grant. In making my decision to recommend a grant of all of the land claim area I am also mindful that over 3 1/2 years have expired since Justice Toohey reported on this claim and that all other issues of detriment have been resolved. Further delays in granting the land would seriously disadvantage Aboriginals in the claim area. I am sure you would also recognise, whatever your views on granting public purpose lands, that 1t would be unjust to change retrospectively the basis upon which land claims were heard and dealt with." It is apparent from the Minister's letter of 23 December 1985 that his response was consistent with option (IV) in the Ministerial Submission of 6 December 1985, although there was no direct evidence as to the reasoning which led the Minister to the conclusions communicated in that letter. No formal steps had been taken by the Minister to implement his recommendation to the Governor-General when these proceedings for review under the ADJR Act were instituted. Jurisdiction The first respondent, by notice of contention, challenged the jurisdiction of the Court to entertain the application for review. He submitted that the primary Judge had erred in holding that the decision under review did not fall within the exclusion in sub-s.3(1) of the ADJR Act of 24. decisions "by the Governor-General". Paragraph 11(1)(e) of the Land Rights Act provides that in the circumstances there described the Minister "shall eee recommend to the Governor-General that a grant of an estate in fee simple" be made, Paragraph 12(1)(b) provides that on receipt of such a recommendation "the Governor-General may ... execute a deed of grant of an estate in the land in accordance with the recommendation and deliver 1t to the Land Council referred to in the recommendation...". Section 16A of the Acts Interpretation Act 1901 produces the result that, in the absence of the contrary intention, these powers or functions conferred on the Governor-General are to be read as_ referring to_ the Governor-General acting with the advice of the Federal Executive Council. It was not contended before us that there was any contrary intention in ss. 11 and 12 of the Land Rights Act to displace the operation of s.16A. An example of such a contrary intention 1s provided by s.19A of the Crimes Act 1914 which was considered in Thongchua v. Attorney-General for the Commonwealth of Australia (1986) 66 A.L.R. 340. That section, in terms, vested the power in question in the Governor-General acting with the advice of the Attorney-General. We should add that, at this stage, there have been no decisions by the Governor-General in Council. This is because, as we have mentioned, the Minister deferred taking steps to 25. give effect to his decisions to recommend gqrants' under s.ll(1)(e) of the Land Rights Act. Nevertheless, it was submitted that the application for review of the decisions of the Minister was an impermissible attempt to obtain in advance judicial review, by collateral means, of what would be the otherwise unreviewable decisions of the Governor-General in Council. To assess this submission it 1s appropriate to turn first, and briefly, to the position of the Federal Executive Council. Section 62 of the Constitution provides for a Federal Executive Council to advise the Governor-General in the government of the Commonwealth. However, other provisions of the Constitution (ss. 32,33,54,67,70,72,83,103) vest a number of functions in the Governor-General in Council. Section 63 of the Constitution requires that provisions in the Constitution which refer to the Governor-General in Council be construed as containing references to the Governor-General acting with the advice of the Federal Executive Council. In addition, various legislation has vested powers and functions in "the Governor-General" and, as we have noted, in the absence of the contrary intention, this refers to the Governor-General in Council. Sections 11 and 12 of the Land Rights Act provide examples. The question of the amenability at general law of decisions of the Governor-General in Council to judicial review 26. has been a vexed one. But, putting to one side issues that may still arise where a power or function 1s vested by the Constitution itself in the Governor-General in Council, it 1s now settled that, where legislation is the source of the power or function in question, judicial review under the general law is not precluded by the identity or nature of the Executive Council or the office of the Governor-General in what otherwise would be an appropriate case for judicial review for ultra vires or denial of natural justice: The Queen v. Toohey; Ex parte Northern Land Council (1981) 151 C.L.R. 170; F.A.L. Insurances Ltd v. Winneke (1982) 151 C.L.R. 342. As the primary Judge in this case pointed out, what 1s now settled law was not so when the ADJR Act was passed. The reservation from review of decisions of the Governor-General under any enactment (ADJR Act, sub-s.3(1)) may be seen as reflecting what was orthodox thinking in 1977 as to the scope of judicial review at general law. It should also be borne in mind that, at general law, and quite apart from the above difficulties with respect to review of Federal Executive Council decisions, the determination of the Minister in the present case to recommend inclusion in the grants of the Tennant Creek Water Control District (evinced by the letter of 23 December 1985) might not have attracted judicial review. The objection may have been that review would be premature as there were not as yet any decisions "affecting rights": cf Testro Bros. Pty.Ltd. v. Tait (1963) 109 C.L.R. 353. 27. On the other hand,the application of the ADJR Act to the decisions involved in this present litigation is not completely at odds with the situation at general law. This is so because there has been no general law immunity from judicial review in cases where (a) legislation laid down conditions precedent to the exercise of the power of the vice-regal representative in Council, (b) the issue was whether that condition precedent had been satisfied and (c) judicial review took place (as in the present case) before the matter had gone to the Council: e.g. Brettingham-Moore v. Warden, Councillors and Electors of Municipality of St.Leonards (1969) 121 C.L.R. 509 at 525. Nor has there been immunity from judicial review at general law where the decision-maker was not the Governor-General in Council, but a Minister: The Queen v. Toohey (supra) at 192, 202-204, 223-224, 234-235. These complexities and uncertainties of the general law are dissolved by the ADJR Act in its operation upon the various steps provided for by s.1l of the Land Rights Act. As Gibbs C.J. observed in The Queen v. Kearney; Ex parte Northern Land Council (1984) 158 C.L.R. 365, s.1ll of the Act, in its application to cases such as the present, posits as independent discretions (a) the recommendation of the Minister to the Governor-General in Council and (b) the advice of the Federal Executive Council that the Governor-General make the proposed grant of land to the Land Trust in question. The first of 28. these steps is a decision to which the ADJR Act applies viz, "a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment ...." The second would also be of this character, but for the exclusion from the definition of decisions by the Governor-General in Council. In our view the exclusion of the second decision from review does not bring the first decision within the protective umbrella of that exclusion. In this setting, undoubtedly it 1s true that the participation of the Governor-General 1s formal in the sense that the advice tendered by the Executive Council must he accepted. In any event, ss. 11 and 12 of the Land Rights Act vest powers or functions only in the Governor-General acting on the advice of the Federal Executive Council. Without that advice the power or function has not been exercised. No power or function 1s reposed in the Governor-General as such by these provisions of the Land Rights Act. Further, in considering the position of the Federal Executive Council, one should bear in mind both the careful procedures which attend the tender and content of submissions to the Federal Fxecutive Council (as to which see Sankey v. Whitlam (1978) 142 C.L.R. 1 at 52-53) and the composition of the Federal Executive Council as a collegiate body which, on a particular occasion, may include Ministers other than the Minister from whom the business in hand comes. See generally, F.A.I. Insurances Ltd. v. Winneke 29. (supra) at 364-5, 383, 400-401; Sawer "Councils Ministers and Cabinets in Australia" [1956] Public Law 110 at 120-122; and Crisp "Australian National Government" 4th Ed., 1978, pages 350-352. It is difficult to see how for the purposes of the ADJR Act an organ of government such as the Federal Executive Council does not reach a decision distinct from, albeit sequential to, that of a Minister exercising a power under an Act to make a recommendation to the Federal Executive Council. As we have already noted, the first respondent submitted that to review the decisions of the Minister in this case to make recommendations to the Governor-General in Council would be to expose the latter body to collateral attack. That assumes an identity in the nature and quality of the powers and functions reposed by the Land Rights Act in the Minister and the Governor General in Council which in our view does not exist. Also to point to the limited role of the Governor-General is not to deny that the Governor-General in Council is a decision-maker for the purposes of the ADJR Act. Indeed, the existence of the exception in favour of that organ of government, to shield it from review, suggests the contrary. The first respondent relied upon the decision of the Full Court of this Court in Thongchua v. Attorney-General for Commonwealth of Australia (supra) as support for the proposition that the decisions of the Minister in this case to recommend actions to the Governor-General in Council were 30. immune from review. This reliance was not well placed. The statutory provision at the centre of the earlier case was, as we have already mentioned, not one which vested any power in the Governor-General in Council. The majority of this Court took the view that under that legislation only one decision was made for the purposes of the ADJR Act, that of the Governor-General upon the direct and sole advice of a particular Minister. This decision then fell within the words of exclusion from the application of the ADJR Act. Accordingly, our conclusion is that the primary Judge correctly reached the view that he had jurisdiction under the ADJR Act. Grounds of Appeal In his notice of appeal the appellant challenged the first respondent's decisions on various grounds, some of which were abandoned during the hearing of the appeal. Three grounds are now relied on by the appellant. The first of these 1s that, when making his decisions, the first respondent took the view that a legally binding agreement could be made between the Northern Territory and the Central Land Council on behalf of the traditional owners of the land in relation to the future development and use of water resources in the Tennant Creek Water Control District before 31. the grant of the relevant land was made to a Land Trust. The primary Judge found that if the Minister had approached the matter on this basis he would have erred in law in respect of a material matter so that any decision to proceed with a recommendation for a grant would have been vitiated. His Honour found that the first respondent did not take this view. After a grant of land has been made by the Governor-General to a Land Trust, pursuant to sub-s. 12(1) of the Land Rights Act, the Land Trust may, at the direction in writing of the relevant Land Council, grant a lease or licence in respect of land vested in 1t to the Northern Territory for any public purpose (sub-s. 19(3)). Obviously that power cannot be exercised before the Land Trust acquires title to the land. A power of negotiation is expressly conferred upon. Land Councils by para. 23(1)(e) of the Land Rights Act; but it is plain from the language of that provision that the power of negotiation to which it refers cannot be invoked before the grant of the land has been made to the Land Trust. Of course, there is no bar to a Land Council engaging in informal discussions or negotiations before the land grant is made. Indeed, in the ordinary course of events 1t would not be unusual for a grant of land to be preceded by negotiations between the relevant Land Council and the persons desiring to use, occupy or obtain an interest in the land. The legal right of a Land Council to negotiate an agreement between it on behalf of the traditional owners and third persons can only 32. arise, however, once the grant is made. A legally binding agreement is not possible before the grant of title. It 1s clear from the correspondence that the Minister correctly understood the position and was under no misapprehension that a legally binding agreement for the future use and development of the land within the Warlmanpa and Kayte} land claims could be made between the Central Land Council and the Northern Territory Government before the land was granted to the Land Trust. The letter dated 23 September 1983 from the Department of Aboriginal Affairs to the Department of the Chief Minister stated: "Although neither a Land Council nor a Land Trust can be legally bound by any undertakings given before the land becomes Aboriginal land, it 1s reasonable to expect that undertakings which have been given in these cases will be honoured." The first respondent said in his letter dated 25 October 1983 to the Chief Minister: +e. IT expect that your Government will wish to enter into an agreement with the relevant Aboriginal Land Trust in respect of the development and use of water supply facilities in the Tennant Creek West Borefield area. The agreement would be signed immediately after the title has been granted to the Land Trust." 33. Counsel for the appellant based his'- submission essentially upon the following passage in the letter dated 23 December 1985, in particular the words which we have emphasised: ",.. I am, however, satisfied that any potential detriment for the Northern Territory Government arising from a grant of all the land in the claim area can be satisfactorily mitigated through the existing provisions of the Land Rights Act and co-operation with the Central Land Council. While it 1s a matter for your Government, I would have thought _a_ formal agreement between your Government and the Land Council would enable _ an final reservations concerning detriment to be put to rest. I do not regard the seriousness of potential detriment to be such to warrant holding up the grant in the absence of such an agreement." The underlined passage must be read in the context of the correspondence as a whole passing between the two Governments with respect to the Warlmanpa and Kaytej land claims and, in particular, to the question of the future use of the land within the Tennant Creek Water Control District. The discussions and correspondence between the two Governments relating to this matter had been proceeding for years. The first respondent recognised that the grant of land included within the Tennant Creek Water Control District could have a substantial detrimental effect on the development of the township of Tennant Creek; but he held the view that satisfactory arrangements could be made between the Central Land Council and the Northern Territory Government to secure the future supply of water for the township. 34. It was open to the Northern Territory Government to negotiate with the Central Land Council before the land grants were made with a view to securing agreement in principle as to the security of the future supply of water for Tennant Creek, A legally binding agreement could not be reached because the land had not been granted to the Land Trust; but, in his letter of 23 December 1985, the first respondent was saying that the Commonwealth had given every reasonable opportunity to the Northern Territory, in particular over the previous nine months, to discuss the future land use with the Central Land Council preparatory to the making of the grants and that the Northern Territory had done nothing about it. The fair interpretation of the expression "formal agreement", when read in the context of the whole of the letter of 23 December 1985 and the correspondence generally, is that the first respondent was alluding to the possibility of the Northern Territory making an agreement in principle, not legally binding, but in the nature of heads of agreement or an informal arrangement which might be consummated by legally binding agreements after the land grants had been made. This attack on the first respondent's decisions fails. The first respondent's decisions were challenged on a second ground, namely, that he had taken into account the possibility of future Commonwealth legislation being enacted to secure the availability of water resources to the township of 35. Tennant Creek in mitigation of the detriment which the Northern Territory Government would otherwise suffer. It was submitted that it was impermissible for a decision-maker to take into account, for the purposes of exercising an administrative discretion, the possibility of an amendment to the law. Reliance was placed in support of this proposition upon various cases including: Ramsey v. Aberfoyle Manufacturing Co. (Aust.) Pty. Ltd. (1935) 54 C.L.R. 230 especially per Starke J. at 253; Willow Wren Canal Carrying Co. Ltd. v. British Transport Commission [1956] 1 W.L.R. 213 at 216; R. v. Whiteway; Ex parte Stephenson [1961] V.R«s 168 at 171; Fitzgerald v. Muldoon [1976] 2 N.Z.L.R. 615 at 621-3; In Re S (Infants) (Adoption by Parent) [1977] Fam. 173 at 176-7; Sydney City Council v. Ke-Su Investments Pty. Ltd. [1985] 1 N.S.W.L.R. 246 at 257; and Wingate Holdings Pty. Ltd. v. Pan Continental Gold Mining Areas Pty. Ltd. 1986, judqment of the Full Court of the Supreme Court of Western Australia (Burt C.J., Wallace and Olney JJ.), 28 February 1986, unreported. In Ramsey v. Aberfoyle Manufacturing Co. (Aust) Pty. Ltd. (supra) Starke J. said at p. 253 (the passage upon which reliance was placed): "Courts of law, however, can only act upon the law as it 1s, and have no right to, and cannot, speculate upon alterations in the law that may be made in the future." 36. In Wingate Holdings Pty. Ltd. v. Pan Continental Gold Mining Areas Pty. Ltd. (supra) application was made by Pan Continental Gold Mining Areas Pty. Ltd. to the Supreme Court of Western Australia for an order that a hearing by the Court, which had been set down to commence on 6 March 1986, be adjourned until the June 1986 sittings of the Court. It was argued that the West Australian Minister for Minerals and Energy intended to introduce a Bill into Parliament which, 1f passed, would render the proceedings academic. Burt C.J. said in his reasons for judgment (the paragraph relied on by counsel for the appellant): "The Courts are charged with the high responsibility of administering justice according to the law as it is. A party invoking the jurisdiction of the Court must be permitted to seek his justice upon that basis and the Court cannot deny him that right because of a _ reasonable expectation that at some future date the law will be changed and with that change that his rights according to law will be changed. It may well be that his victory, should he enjoy one, will be pyrrhic. Tf£ it is, then so be it. That 1S a matter for him." Finally a reference should be made to Willow Wren Canal Carrying Co. Ltd. v. British Transport Commission (supra) where Upjohn J. said at pp. 215-216 (the passage relied on by counsel for the appellant): oe. Sitting in this court, it 1S my duty to see that litigants have their cases tried, as they are entitled to, and that I cannot take into account the possible effect of some Bill now before Parliament which, if passed into law in 1ts present 37. form, may have some effect on the rights of the parties. That seems to me to be a correct formulation of the law. This court 1s not concerned with what Parliament may think it wise to do in relation to the rights of the parties, but the plaintiffs are entitled to come to this court and say, 'In the normal course of events our action will very soon be ripe for hearing. We desire that the court should hear it.' ... But 1t 1s plain that it 1s not right for this court either now or at the hearing to take into account the possible effect of some Bill at present before Parliament which, so far as this court 18S concerned, may never be passed into law at all, or, if passed into law, may ultimately contain provisions which do not affect the rights of the parties before the court at all. In other words, it 1s a matter of speculation on which this court will not embark as to whether a Bill at present before Parliament will be passed into law in its present form." The facts of the cases to which we were referred have little 1n common with each other and nothing in common with the facts of the present case. They, together with the other cases to which we were referred, concern facts and questions quite different from those which are presently relevant. Although we have considered all of these cases we see no useful purpose in referring to them further. The submission of counsel for the appellant was that the first respondent was not entitled to take into account the possibility of amendments to the Land Rights Act to allow the Northern Territory to undertake works on land within the Tennant Creek Water Control District. The first respondent proposed to seek Federal Cabinet approval to this amendment and, 1f£ approved, to introduce a Bill to Federal Parliament. It was common ground that no draft Bill existed at any material 38. time. The principal correspondence upon which reliance was placed by counsel for the appellant commenced with the letter of 10 September 1985 in which the first respondent said to the Chief Minister: "You are aware of my intention to introduce a package of amendments to the Land Rights Act into the Parliament in the autumn 1986 sittings. I will be recommending to Cabinet that these amendments should allow the Northern Territory Government to undertake works on Aboriginal land in accordance with the Control of Waters Act and to transport water off the land consistent with recommendations made by Mr. Justice Toohey. The passage of these amendments will, therefore, fully protect the rights of the NT Government to control and use water on Aboriginal land. I intend to seek Cabinet endorsement on these amendments in the near future." In the letter of 23 December 1985 the first respondent said to the Chief Minister: "I have noted the Territory Government's continued support for the grant of the Warlmanpa and Kayte} land claims with exception of the area designated as a Water Control District under the Control of Waters Act. As you know legislation is proposed which will substantially accommodate the Northern Territory's position concerning the operation of the Control _ of Waters Act, and concerning future claims on designated public purpose land. I am, however, satisfied that any potential detriment for the Northern Territory Government arising from a grant of all of the land in the claim area can be satisfactorily mitigated through the existing provisions of the Land Rights Act and co-operation with the Central Land Council." In the departmental submission to the first respondent of 6 December 1985 which preceded the letter of 23 December 1985, the following passage appears: 39. ", The Northern Territory Government's concerns about detriment suffered in this claim arise largely from doubts about the extent to which the Control of Waters (NT) Act is capable of operating concurrently with Aboriginal Land Rights (Northern Territory) Act 1976 (the Act) and 'in principle' objection to the granting of public purpose lands. . As it is unlikely major works will be carried out within the next 5 years there is little likelihood of any significant detriment in the shorter term. e Section 14 of the Land Rights Act guarantees continued occupation or use of land by the Crown or an Authority for such periods as the land is required. Section 70 would enable access in accordance with the NT legislation and Section 74 enables regulation of activities within such a district to the extent that the Northern Territory law 1s capable of acting concurrently with the Act. Justice Toohey expressed the view that this would not authorise the construction of permanent facilities to draw water and pipe it to places outside the claim area." The reference to the recommendations of "Mr. Justice Toohey" in the letter of 10 September 1985 and to his Honour's views in the departmental submission is doubtless to his Honour's review "Seven Years On" where he said in effect that there were major problems with the Land Rights Act, in particular ss. 67 and 74, and that there were doubts as to the vesting of title to ground water, all of which needed legislative attention. In relation to the Northern Territory's powers to drill, lay pipes and supply water Toohey J. said: "It is undesirable that these matters be left entirely to the context of a particular land claim 40. hearing. Section 74 should be amended to make it clear that the Control of Waters Act 1s capable of operating concurrently with the Land Rights Act." Upon a fair reading of the correspondence as a whole, including the two letters to which we have referred of 10 September and 23 December 1985, it is clear that the first respondent expressed the following views:- - that legislation as it then stood was sufficient to enable the existing use of the land within the Tennant Creek Water Control Area to be continued for the purposes for relief it was then being used: - that it did not seem likely that any major works on the land would be needed until at least five years had passed; - that any detriment which would attend the Northern Territory Government's future proposals with respect to water resources to service the township of Tennant Creek could be mitigated under the law as 1t then stood, without the necessity for amending legislation, in view of the expressed attitude of the Central Land Council that it desired to co-operate with the Northern Territory to make appropriate arrangements with 1t for the future use of the land; and 41. - that, 1f it proved to be necessary, amending legislation to mitigate detriment could be passed by the Federal Parliament. The first respondent's view, revealed by the correspondence was that grants of land could proceed independently of any proposed legislation because detriment to the Northern Territory with respect to water resource questions could be satisfactorily resolved between it and the Central Land Council. The first respondent's view, as expressed, was that the grants should not be delayed further, especially as in his view the Northern Territory had delayed for a considerable time without endeavouring to conduct negotiations with the Central Land Council. There 1s no substance in this second submission of counsel for the appellant. We turn to the remaining point on which reliance was placed by counsel for the appellant. The submission was that before September 1985 the first respondent had taken the view that detriment to the Northern Territory could be alleviated by appropriate arrangements being made between the Central Land Council and the Northern Territory. By December 1985 the first respondent had shifted his stance by thereafter regarding the solution to the provision of water within the Northern Territory for the township of Tennant Creek as a problem to be solved by proposed amendments to the existing legislation. Although the correspondence refers to the first respondent's 42. intention to submit to Federal Cabinet proposals to amend the legislation with a view to removing the perceived deficiencies, the legislation has never in fact been introduced. Yet, the first respondent, so it was submitted, proposed to make the land grant. It was submitted that in these circumstances the first respondent, in exercising his power under para. 11(1)(b) of the Land Rights Act, failed to take into account the matters mentioned in paras. (b) and (c) of sub-s. 50(3) of the Land Rights Act. It is plain that, at all material times (indeed up to the writing of the last of the relevant letters, namely, the letter of 23 December 1985 from the first respondent to the Chief Minister) the first respondent recognised the fact of detriment to the Northern Territory if the land included within the Tennant Creek Water Control District was qranted to the Land Trust. The detriment was perceived to exist because s. 14 of the Land Rights Act, which authorises the continuation of the prior occupation or use by the Crown (or by an authority with the Crown's permission) of land included in a grant, does not extend to other or extended occupation or use. There was no other relevant statutory provision authorising the Northern Territory to carry out works on the land. The first respondent appears to have held the view that the land in the Tennant Creek Water Control District could continue to be used for purposes of testing and exploration for water and associated matters because that is the present use. But the construction 43. of permanent facilities to hold water or to extract it from sub-terranean basins as part of the facilities to provide Tennant Creek with a permanent water supply was a use of land not permitted by s. 14 and a use requiring either agreement of the Central Land Council and the Land Trusts after title to the relevant land was acquired by the Land Trust or legislative authority by amendment to the Land Rights Act or, perhaps, both. At one stage the first respondent informed the Chief Minister by his letter of 11 March 1985 that he had decided to grant all of the land to the relevant Land Trust except the area forming part of the Tennant Creek Water Control District. As we sald earlier, the first respondent intended to seek Cabinet approval for the introduction of amending legislation to deal with problems of the kind to which Toohey J. had referred in para. 209 of his Peport "Seven Years On". For the reasons which we have given already the first respondent did not perceive the enactment of this legislation as essential either before the making of land grants or thereafter to ensure that the future water needs of the township of Tennant Creek were secured. The first respondent had plainly reached a view that satisfactory arrangements could be made between the Central Land Council and the Northern Territory to ensure future water supplies for the township. He regarded the essential negotiators as the Northern Territory itself and the Central Land Council, yet the Northern Territory had, in the 44, first respondent's view, taken the stance that it would not treat with the Central Land Council and that legislation hy the Commonwealth was essential if the future water needs of the township were to be secured. Although different considerations received varying degrees of emphasis by the first respondent from time to time, there was no essential change in the first respondent's attitude to the question of detriment evident by December 1985 or at any other time. Real questions arise as to the extent to which the existing provisions of the Land Rights Act provide sufficient security to the Northern Territory after a land grant is made. There 1s also a real question as to whether s. 74 of that Act preserves the operation, in respect of aboriginal land, of the provisions of the Control of Waters Act (N.T.). The impugned decisions of the first respondent were made in the circumstances to which we have referred and in our opinion do not reveal that he failed to take into account the matters which paras. (b) and (c) of sub-s. 50(3) of the Land Rights Act require him to take into account. 45. Discretion The first respondent submitted that even if the appellant otherwise made out a case for review, relief should be refused in the exercise of the Court's discretion. This submission was made to the primary Judge, but as we have mentioned, his Honour did not find it necessary to deal with it, having regard to his view upon the merits. On the appeal the gravamen of the submission as to discretion was that the Northern Territory had dragged its feet in pursuing negotiations for an agreement to secure its interest in the development and use of the water supply for Tennant Creek. In our view, the history of this matter, as appears from the correspondence between the parties, 15S indicative of a deep cleavage in governmental policy. It would not be appropriate to assess the position by use of doctrines such as laches, acquiescence and delay which were developed to ald in adjusting private rights. In particular, 1f a case for review under the ADJR Act had been made out in respect of one government's conduct, we would not have considered it an appropriate exercise of discretion to stultify the public interest in that review on grounds which reflected a contrary view by the other government which was party to the dispute of matters of high policy. 46. Conclusion We would dismiss the appeal with costs. I certify that this and the preceding forty-five (45) pages are a true copy of the reasons for judgment herein of their Honours Mr. Justice Lockhart and Mr. Justice Gummow. \ Dated: 23 July 1987 ' AsSociate, IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G 378 of 1986 ) ) GENERAL DIVISION QN APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN : THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA Appellant AND: MINISTER FOR ABORIGINAL AFFAIRS First Respondent GEORGE BROWN JUNGARRAYI and LAWRENCE KELLY JAKAMARRA Second Respondents CORAM: Lockhart, Neaves and Gummow JJ. DATE: 23 July 1987 REASONS FOR JUDGMENT NEAVES J. The first question raised by this appeal is whether the Court had jurisdiction to entertain the application by the Attorney-General for the Northern Territory for an order of review under the Administrative Decisions (Judiciai Review) Act 1977 (Cth). I agree with the other members of the Court in thinking that an affirmative answer must be given to that question. I also agree in the reasons which 2. their Honours have advanced to support that conclusion. I do not wish to add anything. In relation to the substantive question, I have reached a conclusion different from that of the other members of the Court. In my opinion the appeal should be allowed and the decision of the first respondent set aside. To justify that conclusion it will be necessary to re~-state much of the factual material before the Court. In terms, s.50(3) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("the Act") requires an Aboriginal Land Commissioner, in making a report in connexion with a traditional land claim, to comment upon four specified matters. One of those matters is the detriment to persons or communities that might result if the claim were acceded to either in whole or in part (par.(b)). Another 1s 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 (par.(c)). It is now well established by decisions of the High Court that the Minister, in deciding whether he 1s satisfied for the purposes of s.11(1)(b) of the Act that land should be granted toa Land Trust to be held for the benefit of Aboriginals, 1s bound to take those matters into account: The ueen v. Toohey; Ex parte Meneling Station Pty. Ltd. (1982) 158 C.L.R. 327; Minister for Aboriginal Affairs v. Peko-Wallsend Ltd. (1986) 66 A.L.R. 299. The rationale for this conclusion 18, in the words of Mason gd. ain the latter case (at p.311), that: "because the Commissioner 1s neither bound nor entitled to have regard to detriment in making his recommendation, the respondents' only opportunity to have the detriment to them taken into account 1s at the stage when the Minister 15 considering whether he 1s satisfied that the land grant should be made." Expanding on that theme, his Honour said (at p.312): "The Act does not expressly state that the Minister 1s bound to take into account the Commissioner's comments on the matters in paras (a) to (d) of s.50(3) in exercising his power under s.11(1)(b) to decide whether or not he is satisfied that a land grant should be made. But a consideration of the subject matter, scope and purpose of the Act indicates that such a finding 1s necessarily implied by the statute. The factor that leads irresistibly to this conclusion 1s the specific requirement in s.50(3) that the Commissioner comment in his report om each of the four matters enumerated in the sub-section, ancluding of course detriment. That provision recognizes that the granting of land to a Land Trust may adversely affect the interests of many people, in some cases in a very substantial way. The legislature was clearly concerned that the Minister should not overlook erucial considerations which might counterbalance or outweigh the fairness and justice of granting the land when making his decision under s.11(1)(b). Accordingly, it provided the means whereby such factors would be analysed and drawn to his attention for the purpose of having them taken into account. That purpose would not be achieved if the Minister was merely entitled, but not bound, to consider these factors. Furthermore, this court's decision in Meneling Station, by removing from the Commissioner both the obligation and the entitlement to reflect in his recommendation to the Minister any question of detriment, has the result that the Minister 1s the sole forum in which these matters may be taken into account. A finding that the Minister is not required to take into account the matters in s.50(3)(a)-(d) would deny the respondents the opportunity of compelling a consideration of the 4. detriment that may be occasioned by the granting of land to a Land Trust. For the reasons already given, such an interpretation of the Act cannot be accepted." It is also now established that the Minister is bound, in exercising his power under s.1ll(1l)(b), to take into account not only such comments as the Commissioner may have made in his report upon the matters specified in s.50(3), but also whatever further material 1s available to him which corrects, updates or elucidates the Commissioner's comments. Thus, in Minister for Aboriginal Affairs v. Peko-Wallsend Ltd. (supra), Gibbs C.J. said (at p.301): "The duty of the Minister is to consider the matters mentioned in s.50(3) in the light of the actual facts as disclosed by the material in his possession at the time when he considers whether or not he 1s_ satisfied for the purposes of s.11(1)(b), and not on a false assumption (whether the falsity is due toa change of circumstances or to an error on the part of the Commissioner) concerning the matters mentioned in s.50(3)." Similarly, Mason J. said (at p.312): "Once it 1s accepted that the subject matter, scope and purpose of the Act indicate that the detriment that may be occasioned by a proposed land grant is a factor vital to the exercise of the Minister's discretion, 1t 1s but a short and logical step to conclude that a consideration of that factor must be based on the most recent and accurate information that the Minister has at hand." The Aboriginal Land Commissioner (Toohey J.), in the reports which be made to the Minister under s.50(1) of 5. the Act in connexion with the two land claims here relevant, commented upon the effect which acceding to the claims might have on the supply of water in the relevant area. The first of those reports 1s dated 30 September 1981 and is described as relating to "The Warlmanpa, Warlpiri, Mudbura and Warumungu Land Claim". That claim was to a large area west and north-west of the township of Tennant Creek. The Commissioner recommended that there be a grant to a Land Trust of the unalienated Crown land within the claim area save for a particular section in the north-western corner. The report, after noting that the interest of the Northern Territory Government in the supply of water in the area might be considered as an aspect of detriment, of land usage, or both, referred to the constitution 1n June 1971 by the Administrator of the Northern Territory of the Warrego Water Control District in the south-eastern section of the claim area and the prohibition (with some exceptions to which 1t 1s unnecessary to refer) promulgated in December 1971 on the sinking, constructing or using a well or bore in the area without a permit. Reference was also made toa proposal to constitute the Tennant Creek Water Control District which would include a much larger part of the southern claim area and would be subject to the same prohibitions. The comment was made that the continuation of the Warrego Water Control District and the constitution of the Tennant Creek Water Control District would not he affected by a grant of land to a Land Trust. It was said that the constitution of a water control district does not 6. affect the status of the land and that the regulation of activities within such a district was preserved by s.74 of the Act "to the extent that the Northern Territory law is capable of operating concurrently with that Act". Paragraphs 333 and 334 of the report read as follows: "333. There was evidence of an intention by the Water Division of the Northern Territory Department of Transport and Works to 'carry out investigation drilling over the whole of the Wiso groundwater basin area and this will necessitate the clearing of access tracks, drill sites and camp sites' (Exhibit 69). Such activities appear to be authorised by s.16FA of the Control of Waters Act and consistent with s.74 of the Land Rights Act. Section 70(1) allows a person to enter and remain on Aboriginal land in the performance of functions under a law of the Northern Territory; should a permit be required to enter Aboriginal land, s.6 of the Aboriginal Land Act provides that the Minister may issue a permit to a person employed under or by virtue of an Act of the Northern Territory. 334. The Northern Territory Government owns no water-related capital assets within the claim area but expressed concern that bores sunk on the land would become the property of the traditional Aboriginal owners (transcript p.1420, Exhibit 69)." In the summary of findings, recommendations and comments, the Commissioner expressed the opinion that the continuation of the water control districts would not be affected by a grant of land to a Land Trust. It may be convenient to note at this point that s.74 of the Act provides that the Act does not affect the application to Aboriginal land of a law of the Northern Territory to the extent that that law 1s capable of operating concurrently with the Act. Section 70, which enacts a general prohibition on persons entering or remaining on Aboriginal land, provides that the general prohibition does not prevent a person entering or remaining on such land in the performance of functions in accordance with a law of the Northern Territory. Aboriginal land, however, may not be resumed, compulsorily acquired or forfeited under any law of the Northern Territory (s.67). The second report is dated 26 March 1982 and relates to "The Kaytej, Walpiri and Warlmanpa Land Claim", a claim to avery large area south-west of the township of Tennant Creek. In recommending that there be a grant of the land claimed to a Land Trust, the Commissioner commented upon the significance of the claim area aS a source of water. This aspect was discussed in pars 120-129 of the report as follows: "120. The matter arises in this way. For some time the water division of the Department of Transport and Works has been carrying out investigatory drilling immediately west of Tennant Creek pastoral lease. The object 1s to ensure a continued ground water supply for Tennant Creek. To date, some thirty-five bores have been drilled of which twenty-five are regularly monitored by the division. This requires access tracks. Further drilling and test pumping may be carried out and it is likely that a pump station and a rising main will be constructed to augment the town's water supply. The area concerned was described during the hearing and in documents tendered as the Tennant Creek West Bore Field. It occupies roughly the north-eastern quarter of grazing licence No.2067, mentioned in para.6 and discussed at length later in this report. 121. The Northern Territory Government proposes to constitute the Tennant Creek Water Control District. The boundaries of the proposed district appear on one of the maps accompanying 8. this report. As will be seen it takes in the south-western corner of Phillip Creek pastoral lease, the whole of Tennant Creek pastoral lease, the whole of G.L. 2067, the northern portion of McLaren Creek pastoral lease, and the north-eastern portion of the claim area. 122. In the Warlmanpa report I commented: The continuation of the Warrego Water Control District and the constitution of the Tennant Creek Water Control District would not be affected by a grant of land to a Land Trust. The constitution of a water control district does not affect the status of the land and the regulation of activities within such a district 1s preserved by s.74 of the Land Rights Act to the extent that the Northern Territory law is capable of acting concurrently with that Act (para.332). In the present hearing no one challenged that statement and I believe it to be correct. But there are considerations present in this claim that were not present in the Warlmanpa claim and the statement just quoted must be taken only as a starting point. A failure to appreciate this may well have been behind the absence of any proposal from the Land Council or the Government that might accommodate the range of interests involved. 123. The Control of Waters Act s.16A empowers the Minister by notice in the Gazette, to constitute any portion of the Northern Territory to bea water control district. Section 16B authorises the Minister, again by notice in the Gazette, to prohibit, within a water control district, the range of acts there specified, except in accordance with a permit granted under the section. The range of activities that may be prohibited include the destruction of trees; the construction of a drain, trench or channel; the construction, alteration or removal of an embankment; altering or impeding the course of or flow or movement of water; and sinking, constructing or using a well or water bore. Section 16E empowers the Controller of Water Resources to require the owner or occupier of land within a water control district to take various steps or refrain from taking steps where the supply of water may be affected. 124. In broad terms, what the Act seeks to do is to enable a water control district to be constituted in the interests of preserving a source of water, and by a range of prohibitions ensure that nothing is done to interfere with 9. that source. As I said in the Warlmanpa report, I see no reason why that range of controls cannot operate in regard to Aboriginal land. In terms of s.74 of the Land Rights Act such a law '1s capable of operating concurrently with this Act'. 125, But the Government may wish to do more than maintain the land ina passive state. It may wish to carry out exploration, drill bores and, 1f a satisfactory water supply 1s available and 1s required, carry that water to the town of Tennant Creek or wherever else it 1s needed. Section 16F empowers the Minister to authorise a person to enter upon land within a water control district and, in effect, do anything necessary to control water or protect it from pollution. And s.16F permits the Controller of Water Resources, 'for the purposes of investigating the water resources of the Territory or of controlling the use or movement of water', to make surveys, take levels, carry out pumping tests, take samples of soil or water; install gauges, instruments and appliances; and construct access tracks, landing grounds for helicopter operations, fuel depots and temporary camps. Section 16FA 1s not confined to land within a water control district but in the main 1t is aimed at exploratory work. 126. Section 6 of the Aboriginal Land Act would enable permits to 1ssue to employees of the water division 1f the land within the proposed water control district became Aboriginal land. It would allow those employees to do what 15s contemplated by ss.16F and 16FA of the Control of Waters Act. In my view it would not authorise the construction of permanent facilities to draw water and pipe it to places outside the claim area. 127. The anability of the Northern Territory Government to acquire Aboriginal land compulsorily has been mentioned in several recent reports. In contrast with the stand taken by the Northern Land Council in the Daly River land claim, the Central Land Council offered no undertaking or assurance as to the provision of water from the claim area if 1t became Aboriginal land. I take this to be because the Land Council had not adequately assessed the implications of a grant. And the Government, while first submitting that the Control of Waters Act offered 1t all the protection it needed, saw the dangers in that approach and in the end submitted that there was a real question of detriment involved. 128. In these circumstances, 1t must be a matter for the Minister to consider whether he 1s satisfied that there should be a grant of the 10. land recommended, at any rate of the north-eastern portion, unless satisfactory arrangements can be made to ensure the supply of water thought to be needed. 129. The Tennant Creek region currently receives its water from the Cabbage Gum, Kelly Well and Kelly Well West bore fields and they have adequate capacity for present usage. The growth of Tennant Creek 1s dependent upon an assurance of additional water supplies. To what extent Tennant Creek itself will grow, and at what rate, clearly is a matter of debate and to some extent speculation. The Town Council 1s optimistic, notwithstanding the difficulties associated with Mining at the present time. Through its Town Clerk, Mr McRae, 1t made a written submission (Exhibit 45) which Mr McRae elaborated orally. The town, with the approval of the Government, has endorsed a four-year strategy aimed at broadening and diversifying the economic base of Tennant Creek and at achieving a stable population of not less than 5000 by December 1985. In four particular respects - town beautification and recreational facilities; residential development; industrial and commercial development; and rural and agricultural pursuits - water 1s essential to this development. Whether or not the anticipated population 1s achieved is not really the point. To the extent that the town and adjacent areas are dependent upon water, it 1S important that some arrangement be made guaranteeing the supply of water inthe event that the land becomes Aboriginal land. To say that is not to suggest that the claimants would not be prepared to enter unto such an arrangement, but in the interests of all concerned it is better that the matter be resolved now. These comments must be read in conjunction with what 1s said later in the report regarding G.L.2067." Subsequent to the making of those two reports the Minister for Transport and Works of the Northern Territory, pursuant to s.16A of the Control of Waters Act (N.T.), by notice published in The Northern Territory Government Gazette on 25 June 1982, abolished the Warrego Water Control District and constituted a parcel of land containing an area of 8854 square kilometres as the Tennant Creek Water Control ll. District. By the same notice the Minister, pursuant to s.16B of the Control of Waters Act (N.T.), prohibited the sinking or construction of a well or water bore within the Tennant Creek Water Control District except in accordance with a permit granted and in force under that section. By a subsequent notice published in the Gazette on 1 October 1982 the using of such a well or water bore was also prohibited except in accordance with a permit. In his initial consideration of the matter the first respondent recognised that there was "a need to ensure that the water supply for the town of Tennant Creek be supplemented from the claim areas 1f necessary". This was said ina press release dated 8 September 1983 in which the first respondent announced his acceptance of the recommendations for grants contained in the two reports to which reference has been made. In the same press release the first respondent expressed his confidence that "the traditional owners and the Land Council are prepared to make reasonable arrangements to meet the needs of others". Some clarification of the position was set out ina letter dated 23 September 1983 from the Department of Aboriginal Affairs to the Department of the Chief Minister of the Northern Territory in the following terms - "In respect to water, the traditional owners Clearly indicated to the Central Land Council that they are mindful of the detriment issues which the Commissioner mentioned in his report and are keen to make arrangements for the development and use of water supply facilities in the Tennant Creek West Borefield area." 12. The letter acknowledged, however, that "neither a Land Council nor a Land Trust can be legally bound by any undertakings given before land becomes Aboriginal land". On 25 October 1983 the first respondent wrote to the Chief Minister of the Northern Territory in the following terms: "Further to my letter of 19 October concerning the Warlmanpa and Kayte) land claims, I expect that your Government will wish to enter into an agreement with the relevant Aboriginal Land Trust in respect of the development and use of water supply facilities in the Tennant Creek West Borefield area. The agreement would be signed immediately after title has been granted to the Land Trust. I wish to inform you that title will not be granted to the Trust until your Government has had sufficient time to settle the details of the agreement. My officers will liaise with yours in respect of progress in this matter." The evidence does not disclose any further correspondence between the first respondent and the Government of the Northern Territory until early in 1985. By letter dated il March 1985 the first respondent informed the Chief Minister of the Northern Territory that he did not intend to delay the grants any longer and that he had decided to grant all the land recommended for grant by the Commissioner in both claims except the area forming part of the Tennant Creek Water Control District. The first 13. respondent said that he reserved his decision in respect of that area for the time being. The letter continued: "I would hope that your Government can finalise its negotiations with the Central Land Council in this matter as soon as' possible. I would be prepared to assist in arranging for an Arbitrator to be provided should there be difficulties in finalising this matter as I am anxious to deal with the remainder of the land in both claims as soon as practicable. However, 1f those negotiations are not settled within a reasonable tame I may, unless there are compelling reasons for me not to do so, arrange for the remainder of the land to be granted without further notice." The Chief Minister of the Northern Territory responded by letter dated 12 April 1985 putting forward the view that public purpose lands should not be available for claim and should not be the subject of a grant under the Act and the further view that a decision upon the claims under consideration should be deferred pending the receipt of a report by an Aboriginal Land Commissioner 1n connexion with another claim under the Act. The only evidence of the arrangements which the Central Land Council was prepared to make for the protection of the water supply for Tennant Creek and the surrounding area is contained in a letter dated 26 April 1985 from the Council to the Department of Law of the Northern Territory. Enclosed with the letter was a draft form of covenant Proposed to be entered into by the Council and by the two relevant Land Trusts when established. By that draft the Council and the proposed Land Trusts were to covenant for 14. themselves and on behalf of the traditional owners of the land comprised in the grants to the Land Trusts that - "Ll. The Control of Waters Act of the Northern Territory of Australia and regulations thereunder presently in force in respect of the said lands shall continue to apply to the said lands concurrently with the Land Rights Act provided that the Northern Territory exercises its powers under the Control of Waters Act and regulations to preserve the reasonable water resource requirements of the traditional owners of the said lands from time to time and provided nothing herein permits any resumption or acquisition of an interest in the said lands. 2. They shall negotiate in good faith with the administration of the Northern Territory concerning amendments to the Control of Waters Act and/or the Land Rights Act to resolve uncertainties concerning the mutual operation of those laws. 3. This deed shall terminate upon the Commonwealth Government amending the Land Rights Act to provide for the concurrent operation of the Control of Waters Act and the Land Rights Act." By letter dated 14 June 1985 the first respondent informed the Chief Minister of the Northern Territory as follows: "The policy of the Commonwealth Government is to ensure that the provision of water within the Northern Territory is not disturbed as a result of the grant of title to Aboriginal Land Trusts under the Aboriginal Land Raghts (Northern Territory) Act 1976. I do not think, however, that this policy requires that land claimed forming part of a water control district should be excised from a grant unless suitable arrangements in respect of the land under Aboriginal ownership cannot be made. In the case of the Warlmanpa and Kaytej claims, there is no 15. reason yet to reach the conclusion that' the interests of the Northern Territory Government cannot be accommodated satisfactorily." The first respondent again stated that he was moving to have the land in both claims, with the exception of the Water Control Dastrict, granted as soon as practicable. By letter dated 7 August 1985 the Chief Minister of the Northern Territory responded. What was said included the following: "In the context of Water Control Districts and the Control of Waters Act, you are aware from Mr Justice Toohey's review, 'Seven Years On', that there are major problems with the Land Rights Act and in particular sections 67 and 74 of that Act, and there are doubts as to the vesting of groundwater. All need urgent legislative attention. As Toohey J. said, talking of constraints arising from section 74 of the Land Rights Act, which would prevent the Territory from drilling, laying pipes and supplying water: 'It 35 undesirable that these matters be left entirely to the context of a particular land claim. Section 74 should be amended to make i1t clear that the Control of Waters Act is capable of operating concurrently with the Land Rights Act.' It is our firm and sincere view that under the current legislation 1t 18 neither desirable nor possible by means of covenants to make satisfactory arrangements acceptable to the Territory. The draft covenants sent to me by the Land Council would effectively deny the Territory 1ts right to control and supply water. I believe all State Governments would find such proposals unacceptable. I have previously put the Territory Government's position that public purpose lands, especially such land vital to the existence and the development of Central Australia, ought not be the subject of a grant under the Land Rights Act. That 1s not to say that under Territory 16. legislation my Government will not make suitable arrangements for the grant of parts of the land within the District." In his report "Seven Years On", Toohey J. (par.159) drew attention to the circumstance that there 1s nothing in s.23 (which 1s concerned with the functions of Land Councils) or elsewhere in the Act that contemplates the negotiation of an agreement by a Land Council on behalf of traditional owners before a grant 1s made. His Honour noted (par.160) that since s.5(2) precludes a Land Trust from exercising its functions except in accordance with a direction given to it by the Land Council and requires the Trust to comply with any such direction, the implication 1s that agreements with regard to Aboriginal land are to be made by the Land Council rather than the Land Trust. Toohey J. vrecognised (par.166) that, in some circumstances, a detailed undertaking or agreement in advance of title may not be possible, one such circumstance being where the future use of unalienated Crown land for a_ public purpose has not yet reached a stage in planning where the land required can be identified with precision. In relation to water resources, reference was made (par.191) to s.12(2) of the Act which provides that any grant of land under the Act 1s subject to a reservation of minerals in favour of the Commonwealth or the Northern Territory as the case may be, "minerals" being defined for that purpose to include water. His Honour expressed the view (par.193) that while the effect of 5.12(2) and of the 17. Control of Waters Act (N.T.) was to vest natural waters in the Crown in the right of the Northern Territory, the position with regard to ground water 1s not so clear. Referring to ss.70 and 74 of the Act, Toohey J. expressed the view (pars 202-3) that s.74 allows what had been described as "passive" water management powers to apply to Aboriginal land and that s.70 was wide enough to permit government officers to enter Aboriginal land to see whether a breach of the law had occurred. He recognised, however, that there was an area of uncertainty surrounding regulatory acts that require actual occupation of, and interference with, land by the Crown on a continuing basis (par.204). Accepting that various controls under the Control of Waters Act (N.T.) could operate concurrently with the Act, Toohey Jd. thought that there was doubt as to the power of the Northern Territory to carry out exploration, drill bores and (if a satisfactory water supply were available and required) to carry that water to a nearby town (par.209). The first respondent replied to the letter dated 7 August 1985 by letter dated 10 September 1985. That letter included the following paragraphs: "T have given careful consideration to the interests of your Government and I am inclined to believe that a grant of the land in the Tennant Creek Water Control District (TCWCD) on the basis of assurances set out below would result in minimal, if any, detriment to your Government. As you point out, the concerns about detriment suffered in this claim arise largely from doubts about the extent to which the Control of Waters 18. Act (NT) is capable of operating concurrently with the Aboriginal Land Rights (Northern Territory) Act 1976. You are aware of my intention to introduce a package of amendments to the Land Rights Act into the Parliament in the Autumn 1986 sittings. I will be recommending to Cabinet that these amendments should allow the Northern Territory Government to undertake works on Aboriginal land 1m accordance with the Control of Waters Act and to transport water off the land consistent with recommendations made by Mr Justice Toohey. The passage of these amendments will, therefore, fully protect the rights of the NT Government to control and use water on Aboriginal land. I intend to seek Cabinet endorsement of these amendments in the near future. I note that your Government has not put forward any firm proposals regarding intentions to carry out works on the land inthe TCWCD, although I understand that 1t 1s unlikely that any major works will be carried out within the next 5 years or so. It seems likely that any work that will be carried out prior to the passage of these amendments can be done under the legislation as it currently stands. Further, I note that your Government's immediate needs may be accommodated under s.14 of the Land Rights Act. I believe that the section affords your Government adequate security for the interim period prior to the passage of amending legislation in 1986. There 1s no reason, of course, why your Government could not enter into some form of agreement with the Central Land Council for this interim period, 1f you thought that was necessary. I hope that you will not construe this approach as an attack upon the interest of your Government as I believe the case I have presented represents a balanced accommodation of the interests of the Northern Territory and the traditional owners. I will delay making a decision on this matter until [I have received your views. I have sent a copy of this letter to the Central Land Council." The submission that was before the first respondent at the time he agreed to the sending of the letter dated 10 September 1985 1s in evidence. After referring generally to the history of the matter, to the recommendations made by 19. Toohey J. in his report "Seven Years On", to the proposals for legislative changes and to the writer's perception of the attitide of the Northern Territory Government, the submission proceeded: "It appears that no major developments will take place in the area for the next 5 - 10 years, the exact timing depending largely on the population growth of Tennant Creek. In the meantime, 1t may be that the provisions of the Control of Waters Act relevant to the needs of the NT Government are capable of operating concurrently with the Land Rights Act. Conversely, 1t may be that the needs of the NT Government will not be provided for. If the former case 18S correct, then the grant of the land is being unnecessarily delayed. If the latter 1s correct, then amendments to the Land Rights Act and the Self-Government Act early next year will ensure the NIT Government's interests are protected in the long term (note that the amendment to provide for conditional grants may also be used to ensure protection of the NTG's interests in these circumstances)." The Chief Minister for the Northern Territory replied by letter dated 26 October 1985 reiterating the matters previously put to the first respondent. The correspondence culminated ina letter dated 23 December 1985 which 18 the letter relied upon by the appellant as evidencing the decisions in respect of which he seeks an order of review. The letter should be set out in full. It read: "You wrote to me on 26 October concerning the Warlmanpa and Kaytej land claim following my letter of 10 September in which I indicated I was considering whether to make a recommendation for the grant of all the land in both claims. 20. On 11 March I informed you of my decision to grant all the land in the Warlmanpa and Kaytej land claims, except for the land designated as the Tennant Creek Water Control District (TCWCD), and indicated that I may grant the land within the TCWCD without notice if negotiations for an agreement were not settled within a reasonable time. I wrote in similar terms to Peko Wallsend Ltd which has interests with respect to water supplies. Following my announcement Peko Wallsend Ltd and the Central Land Council were able to promptly conclude an agreement. I have noted the Territory Government's continued support for the grant of the Warlmanpa and Kaytej land claims with exception of the area designated as a Water Control District under the Control of Waters Act. As you know legislation is proposed which will substantially accommodate the Northern Territory's position concerning the operation of the Control of Waters Act, and concerning future claims on designated public purpose lands. I am, however, satisfied that any potential detriment for the Northern Territory Government arising from a grant of all of the land in the claim area can be satisfactorily mitigated through the existing provisions of the Land Rights Act and co-operation with the Central Land Council. While it 1s a matter for your Government, I would have thought a formal agreement between your Government and the Land Council would enable any final reservations concerning detriment to be put to rest. I do not regard the seriousness of potential detriment to be such to warrant holding up the grant in the absence of such an agreement. The Central Land Council has assured me of its continued willingness to make appropriate arrangements with the Territory Government to allay fears of posible detriment through a grant of the TCWCD. Your letter indicates, however, that you have not sought to negotiate. To the extent you have proposed negotiations they are premised on the basis of an excision of the TCWCD. The Commonwealth's policy 1s to ensure that the provision of water within the Northern Territory 1s not dasturbed as a result of the Land Rights Act, and I do not believe this policy requires that land claimed forming part of a water control district should be excised froma grant unless Sultable arrangements in respect of the land under claim cannot be made. It 1s now over 9 months since I. announced my decision on the balance of the claim area and every opportunity has been provided to you and 21. your Government to reach an agreement acceptable to both parties. I can only conclude that your reluctance to negotiate is politically motivated. Your failure to use this' period constructively can be no longer allowed to operate to deprive the Aboriginal community of the benefits of the recommendations of Justice Toohey. I am therefore informing you of my decision to recommend the inclusion of the area of the TCWCD in the Warlmanpa and Katyej land grant. In making my decision to recommend a grant of all of the land claim area I amalso mindful that over three anda half years have expired since Justice Toohey reported on this claim and that all other issues of detriment have been resolved. Further delays in granting the land would seriously disadvantage Aboriginals in the claim area. I am sure you would also recognise, whatever your views on granting public purpose lands, that it would be unjust to change retrospectively the basis upon which land claims were heard and dealt with." A submission to the first respondent which preceded the sending of the letter dated 23 December 1985 referred shortly to the history of the matter and suggested that the concerns of the Northern Territory Government arose largely from doubts about the extent to which the Control of Waters Act (N.T.) 1S capable of operating concurrently with the Act and an "in principle" objection to the granting of public purpose lands. Reference was then made to ss.14, 70 and 74 of the Act and to the view expressed by Toohey J. that these sections would not authorise the construction of permanent facilities to draw water and pipe it to places outside the claim areas. Detriment in the longer term was then referred to, that detriment being said to relate to having to negotiate terms and conditions for construction of new works with the Central Land Council pursuant to s.19(3) of the Act. Attention was drawn to the comment by Toohey J. that 22. "1t is important that some arrangement be made guaranteeing the supply of water inthe event that the land becomes Aboriginal land". The options available were then set out. The fourth of these was to grant the entire claim area as soon as possible. The submission continued: "All issues of detriment with the exception of potential detriment to the Northern Territory Government with respect to future capital developments in the Water Control District have been resolved. This detriment 1ssue could in our view have been resolved if the NT Government chose to negotiate with the Central Land Council. As three and a half years have elapsed since Justice Toohey presented his report it 18S a matter for judgment whether Aboriginal interests should continue to be disadvantaged." It seems clear, on the evidence, that at all times prior to September 1985 the first respondent, 1n considering whether he was satisfied for the purposes of s.11(1)(b) of the Act that the land should, in whole or in part, be granted to a Land Trust, recognised the substantial detrimental effect which the grant of the land included within the Tennant Creek Water Control District could have on the growth of the township of Tennant Creek dependent as 1t is upon the assurance of additional water supplies from that district. This is reflected in his decision, conveyed to the Chief Minister of the Northern Territory by his letter dated 11 March 1985, that he had decided to grant all of the land except the area forming part of that district. The fact that the first respondent reserved his decision in respect of that area does not detract from, but rather reinforces, the recognition that there was a real detriment 23. to be addressed in relation to ensuring the future water needs of the township. The first respondent also made it plain that, in his view, satisfactory arrangements could be made between the Central Land Council and the Northern Territory Government to secure the supply of water thought to be needed in the future. However, he also made it clear that, beyond seeking from the Central Land Council an assurance in general terms of a willingness to negotiate with the Northern Territory Government, he himself did not propose to take any steps to overcome or alleviate the perceived detriment. The initiative was passed to the Northern Territory Government. That government, however, took the view that no satisfactory arrangements could be made and that legislation on the part of the Commonwealth was necessary if the future water supply for the township were to be protected. In the light of the shortcomings of the existing legislation adverted to by Toohey J. and the form of the covenants proposed by the Central Land Council, this can hardly be said to have been an unreasonable approach. There is no evidence before the Court to establish that the first respondent, when making the decision evidenced by the letter dated 23 December 1985, had before him material upon which he could be satisfied that satisfactory arrangements could be negotiated or what the nature of those arrangements would be. 24. Thereafter, that is from September 1985 onwards, the first respondent, while maintaining continuity in the Commonwealth's policy of ensuring that the provision of water within the Northern Territory was not disturbed as a result of grants under the Act, took a somewhat different approach to the implementation of that policy in relation to the claims he was' then considering. The emphasis was no longer onthe need for arrangements to be made with the Central Land Council as the means of dealing with the perceived detriment. The emphasis was placed on the existing legislation and on proposed amendments to it. That the emphasis was no longer on arrangements being made between the Central Land Council and the Northern Territory Government is illustrated by the reference inthe first respondent's letter dated 10 September 1985 to such arrangements being made 1f the Northern Territory Government thought that was necessary and then only "for this interim period". This reference appears to be a reference to the period prior to the proposed amending legislation being enacted and brought into force. Similarly, the letter dated 23 December 1985 refers only to co-operation with the Central Land Council and expresses the view that, while it was a matter for the Northern Territory Government, a formal agreement between that government and the Central Land Council would enable "any final reservations concerning detriment" to be put to rest. While placing emphasis on the effectiveness of the existing legislation, the first respondent recognised its 25. deficiencies. The letter dated 10 September 1985 adverted to the absence of provisions in the Control of Waters Act (N.T.) which would authorise the construction of permanent facilities to draw water from the Tennant Creek Water Control District and pipe it outside the claim areas, a matter adverted to by Toohey J. 1n the report dated 26 March 1982 (par.126) and in his report "Seven Years On" (par.209). The letter also referred to the doubt as to the extent to which s.74 of the Act preserves the operation, in relation to Aboriginal land, of the provisions of the Control of Waters Act (N.T.) either in its existing form or as it might be amended to remove the deficiency mentioned above. Notwithstanding this, 1t was suggested that any work that was required to be done in the foreseeable future could be done under the legislation as it currently stood. In this latter regard 1t 1s not without significance to refer to the proposed covenants suggested by the Central Land Council. The first of those covenants proceeded on the basis, for which there 1s no foundation, that agreement between the parties could provide a foundation for the application to Aboriginal land of the Control of Waters Act (N.T.) and that 1t could do so conditionally. The relationship between s.74 of the Act and the Control of Waters Act (N.T.) in its present form is nota matter for resolution in this appeal. For one thing the question has not been the subject of full argument. However, 1t cannot be said that the matter 1s so free from doubt that i1t provides a satisfactory answer to the 26. perceived detriment concerning the future water supply to the township of Tennant Creek. In any event, I do not understand the first respondent to have taken that view. Nor can 1t be postulated in advance that pursuant to s.74 of the Act any amendments to the Control of Waters Act (N.T.) to remove the deficiencies to which reference has been made would operate in relation to Aboriginal land. Another provision of the existing legislation, s.14 of the Act, was also referred to in the letter dated 10 September 1985 as providing adequate security to the Northern Territory in the period prior to the passage of the proposed amending legislation. This suggestion appears to have no foundation whatever. The reference in the correspondence to amending legislation was to proposals which the first respondent intended to put to Federal Cabinet seeking 1ts approval to the introduction into the Parliament of a Bill to amend the Act with a view to removing the identified deficiencies. A timetable was suggested for these amendments, a timetable which, in the event, has not been met. The matters which, by virtue of pars (b) and (c) of s.50(3) of the Act, the first respondent was bound to take into account have been clearly identified in the Commissioner's reports in connexion with the land claims, in the report entitled "Seven Years On" and ain the correspondence. There 1s nothing in the evidence to suggest 27. that the detriment is other than real and the first respondent has not contended to the contrary. It cannot be said that 1t was inherently of no, or no substantial weight. Clearly the possibility, for it 1s nothing more, that the Act may be amended to ensure that the Northern Territory has ample power to secure the future water supply needs of the township of Tennant Creek provides no ground upon which to discount the detriment. Nor, in view of the deficiencies that have been identified, does the existing legislation provide any foundation for its mitigation. Nor was there material before the first respondent upon which he could be satisfied that arrangements ensuring the future water supply for the township could be put in place. Apart from the suggested covenants to which reference has been made, covenants which on any view were entirely inappropriate and insufficient, there was no relevant material. It has not been shown that the first respondent had more than a hope or expectation that satisfactory arrangements could be put in place. He had before him no definitive proposals as to the sufficiency of which he could form an opinion. Further, the recognised effect which the grants could have on the future development of the township of Tennant Creek is not to he ignored because of the failure of the Northern Territory Government to enter into negotiations with the Central Land Council even if its failure to do so was, as' the first respondent seemed to think, politically motivated. The examination which I have made of the decision-making process leads me to the conclusion that the 28. first respondent, in exercising his power under s.11(1)(b) of the Act, failed to take into account the matters referred to in pars 1b) and (c) of s.50(3). The effect of what the first respondent did was to acknowledge that to grant the land claims could result in the existence of a substantial detriment in relation to the securing of the future water supply needs of the township of Tennant Creek but to give that detriment no place in the deliberative process. In justification the first respondent relied on the matters to which I have referred but those matters, as I have shown, provide no foundation for the approach taken. It may be said that what the first respondent did was to take into account irrelevant considerations but, to my mind, the defect in the decision-making process is more fundamental. The evidence does not establish that this 15 a case in which the first respondent formed a different view from either Toohey J. or the Northern Territory as to the seriousness of the detriment that would attend the grants in the absence of reasonably adequate protection for the present and future requirements of the township of Tennant Creek. Nor does 1t seem to me that this 1S a case in which, weighing up the relevant considerations, the first respondent gave greater weight to one factor than other minds might do. That would, of course, be a matter for the first respondent and would provide no basis for the Court's intervention. It isa matter for the first respondent to determine how those conflicting interests are to be resolved. But, in my opinion, the first respondent has not properly assayed the task committed to him by the legislative provisions. The 29. result 1s that the exercise of the discretion which s.11(1)(b) conferred on the first respondent miscarried. I am unable to accept the submission put on behalf of the first respondent that, i1n the event that the appellant established a case for relief, that relief should be denied on discretionary grounds. The appeal should, in my opinion, be allowed with costs, the judgment appealed from set aside and, in lieu thereof, it be ordered that the decision of the first respondent evidenced by the letter dated 23 December 1985 be set aside and that the first respondent pay the costs of the proceedings from which the present appeal is brought. I certify that this the preceding 28 pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Neaves. Associate Dated: 23 July 1987 -L im Counsel and Solicitors for the Appellant: Counsel and Solicitor for the First Respondent: Solicitor for the Second Respondent: Dates of Hearing: Date of Judgment: D.M.J. Bennett 0.C. with J.D. Barrett instructed by Messrs. Clayton Utz. G.K. Downes Q.C. with G. Flick instructed by the Australian Government Solicitor D. Avery 26 and 27 February 1987 23 July 1987