Mansfield J
This case concerned a dispute over the distribution of mining royalties among the Rirratjingu, Gumatj, and Galpu Yolngu clans. The relevant mining operations are on certain Aboriginal land in the Gove Peninsula, North East Arnhem Land, Northern Territory.
The Rirratjingu Aboriginal Corporation (RAC) and 16 senior members of the Rirratjingu clan prosecuted the claim. The respondents were the Northern Land Council (NLC), the Gumatj Aboriginal Corporation (the GAC), Djalu Gurruwiwi (a senior member representing the Galpu in the proceedings), and an Aboriginal senior member of the Gumatj said to represent that clan.
It is worth noting that there was controversy about the Rirratjingu’s representation and that a number of the senior members of the Rirratjingu clan who were also applicants in the matter did not support the proceedings.
Background
Under an agreement made on 26 May 2011 (the Gove Agreement) between:
Swiss Aluminium Australia Pty Ltd and Gove Aluminium Ltd (RTA);
the Arnhem Land Aboriginal Land Trust (Land Trust);
the Northern Land Council (NLC); and
representatives of the Rirratjingu, Gumatj and Galpu (together considered by the NLC to comprise the traditional Aboriginal land owners)
The NLC was tasked with receiving mining royalties and making payments of an amount equal to the amount received to, or for the benefit of, traditional Aboriginal land owners. These payments were to be made quarterly, and were apportioned by the NLC in accordance with a geographical breakdown [23] of traditional Aboriginal ownership as:
26.87% to the Rirratjingu;
72.61% to the Gumatj; and
0.49% to the Galpu
The Rirratjingu applicants alleged that the NLC had disbursed the Gove Agreement mining royalties to members of the Yolngu clans in a way that was inconsistent with its obligations under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the ALRA). The alleged proper apportionment was set out at [31] as:
49.755% to the Rirratjingu;
49.755% to the Gumatj; and
0.49% to the Galpu.
The Galpu also made a cross-claim criticising the validity of the decisions about apportionment in relation to their share discussed at [38].
Main Issues
On 23 January 2015, Mansfield J announced his decision on the allocation and distribution of a particular claim, where there was some urgency that a decision be made. In the present case, his Honour addressed the following two remaining claims:
The applicants’ trust claim:
whether the payments received by the NLC were held in trust for the traditional Aboriginal owners of the area and, if so, whether the NLC had the role of deciding how they should be allocated between the three clans, at [30]; and
The applicants’ and the Galpu’s judicial review claim:
whether decisions of the NLC unders 35(4)of the ALRA are decisions to which the Administrative Decision (Judicial Review) Act 1977 (Cth) (ADJR) applies and, if so, whether they have not been made or have not been properly made, at [37].
Mansfield J refused the applicants’ claims and the Galpu’s cross-claim.
Issue 1: The trust claim
The applicants asserted that the quarterly payments received by the NLC, in the interim period when the NLC has yet to disburse those funds, were held on trust for the benefit of the Rirratjingu, Gumatj and Galpu. The applicants contended that the payments were held in a fixed and simple trust where the beneficial interest is held by each clan in proportions which reflect the particular interests in [the relevant land], at [68].
Under that fixed trust, there was no role for the NLC to decide the appropriate proportions of each group. The applicants asserted the proper proportions were based on a consideration of geographical breakdown and other relevant factors including, at [69]:
the significance of the land under Aboriginal tradition;
the nature and extent of environmental impact of the use of those areas; and
the importance of those areas.
The Galpu also argued, at [70], that their share should be greater after considering the importance of that land in relation to their tradition and culuture and the mining impacts suffered.
Mansfield J rejected this argument, finding, at [83], that the proper statutory construction of sub ss 35(4) and 35(8) of the ALRA does not give rise to a fixed trust [and] [n]or do the terms and provisions in the Gove Agreement.
Additionally, at [102], his Honour rejected the argument that disputes about the allocation of income between Aboriginal landowners under the ALRA were to be determined by the Court as the primary decision-maker. His Honour found instead, at [109], that the decision of apportionment belonged to the NLC under s 35(4) of the ALRA and s 16 of the ADJR does not entitle the Court to make the decision required by the ALRA.
Issue 2: The judicial review claim
The applicants’ sought review of:
NLC's decision or failure to make a decision about the ‘respective entitlements’ of the three clan groups as required by s 35(4) of the ALRA; and
engaged in conduct for the purpose of making a decision which disqualifies it from making a decision under s 35(4).
The applicants’ main contention was that the NLC, as decision-maker, had failed to meet its obligation to obtain the relevant information, and treat the parties fairly (at [125]). The Galpu’s cross-claim adopted a very similar position (at [139]).
Mansfield J rejected these arguments on the basis that NLC's conduct during the negotiation and eventual execution of the Gove Agreement and events that followed were not covered by review rights under the ADJR, at [131].
However, given there was a ‘significant contest’ about the relevance of NLC’s conduct prior to the making of the Gove Agreement, rather than summarily dismissing the claim the parties were given the opportunity to consider the Court's reasons for rejecting the judicial review claim.
Mansfield J also left the Galpu clan’s cross-claim open, stating that the proceeding would be listed for further directions.