Henry J
In this matter, the Court dismissed a joint application of Hope Vale Aboriginal Shire Council, Russell Kurt Gibson, Gregory Raymond McLean, June Emily Pearson and Neville Ian Bown (Applicants) for judicial review of a decision of the Minister for Finance, Natural Resources and the Arts (Minister) to appoint Hope Vale Congress Aboriginal Corporation RNTBC (Congress) as grantee of the Hope Vale Deed of Grant in Trust (Deed) under s40 of the Aboriginal Land Act 1991 (Qld) (ALA).
The respondents are the Minister and Congress.
Background
In 1986, the Hope Vale Aboriginal Shire Council was granted around 110 hectares of land via a Deed of Grant of Land in Trust to be held ‘in trust for the benefit of Aboriginal inhabitants’ under the Land Act 1962 (Qld). The land is now considered ‘transferable land’ under the ALA.
In 1997, the Federal Court made a native title determination in relation to the land under the Native Title Act 1993 (Cth) (NTA), and in 2002 Congress was appointed as a Registered Native Title Bodies Corporate (RNTBC) to that determination.
On 8 December 2011, the the land covered by the Deed was granted in fee simple to Congress to ‘hold the land in trust for the benefit of Aboriginal people particularly concerned with the land and their ancestors and their descendants’ under the ALA (Decision) . This meant that Congress became both the RNTBC and the grantee of the Deed over largely the same lands. This is the Decision that the Applicants sought to have judicially reviewed.
Appeal Grounds
The applicants claimed that the responsibilities of Congress as grantee of the Deed were incompatible with its obligations as an RNTBC because:
the Deed land and native title land are largely the same area and Congress will be required to act for the benefit of all the Aboriginal people particularly concerned with the land and, at the same time, as an RNTBC, act as agent for the common law native title holders.
under any Indigenous Land Use Agreement Congress will have to obtain the consent of the Native Title holders before undertaking any activity likely to damage or interfere with Aboriginal Cultural Heritage and this unduly fetters the future discretion of Congress in its role as grantee of the Deed.
any money that Congress received as grantee under the Deed will have to be held on trust for the native title holders under Regulation 7(1)(c) and (d) of the Native Title (Prescribed Bodies Corporate) Regulation 1999 (Cth) (‘the Regulations’).
the requirement of consultation and consent of the common law holders before any decision is made affecting their native title rights and interests, is in conflict with the Congress’ obligation as the grantee of the Deed to ‘hold the land in trust for the benefit of Aboriginal people particularly concerned with them, their ancestors and their descendants’.
Various other grounds of appeal were raised:
the Minister knew or ought to have known that Congress would breach its duties as grantee of the Deed and other possible breaches set out in a complaint raised in a submission to the Minister of a foreshadowed inequitable distribution of royalties, and an ex gratia payment of money from royalties, associated with the Cape Flattery Mine.
the Decision was not authorised because the alleged incompatibility of functions and foreshadowed breaches of trust frustrated the ALA’s objects.
the ALA is incompatible with the NTA and section 7 of the Regulations and invalid under s 109 of the Constitution of Australia
the Minister failed to take into account relevant considerations
The Minister took irrelevant considerations into account
the Minister did not have the jurisdiction to make the decision
The applicant sought a declaration that the Decision is void and has no effect and an order quashing or setting aside the Decision.
Consideration
The Court considered the Applicants' submissions and evidence in detailed and found that all of the grounds were unsuccessful and the application should be dismissed.