Minister for Aboriginal Affairs v Peko-Wallsend Ltd
162 CLR 2466 ALR 299
(Judgment by: Deane J)
Between: Minister for Aboriginal Affairs
And: Peko-Wallsend Ltd
Judges:
Gibbs CJ
Mason J
Brennan J
Deane JDawson J
Judgment date: 31 July 1986
Canberra
Judgment by:
Deane J
In Re Toohey; Ex parte Meneling Station Pty Ltd (1982) 57 ALJR 59; 44 ALR 63 , it was decided that, in determining whether "to make recommendations to the Minister for the granting" of land pursuant to the provisions of Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("the Act"), the Aboriginal Lands Commissioner was confined to having regard to the strength or otherwise of the traditional attachment of the claimants to the land claimed. Possible detriment to others, and the other matters mentioned in s 50(3)(a)-(d) of the Act, were required to be made the subject of comment by the Commissioner in his report. Otherwise, he was neither bound nor entitled to have regard to them (see Murphy, Wilson and Brennan JJ. at pp.65-66, 66-67 and 72; pp 77, 79-80 and 90-91 of ALR). Thus, for example, even if the Commissioner's assessment of detriment to others were such as would lead him to conclude that a particular parcel of land should be excised from a grant of an overall area which would otherwise be warranted by reason of the claims of traditional Aboriginal owners, he would nonetheless be constrained to recommend a grant of the overall area including that parcel.
This confinement of the matters to which the Commissioner is entitled to have regard in determining whether to recommend a grant of land under the Act has the (in my view unfortunate) effect of constricting the significance of such a recommendation by limiting the extent to which the Minister can properly rely upon it in deciding whether a grant should actually be made. The Commissioner's "recommendation" is not what it would seem to the uninitiated to be. It is not a recommendation that a grant of land claimed by its traditional Aboriginal owners should in fact be made to them in all the circumstances of the case. Its function is essentially that of an identification and certification of any such traditional owners and of the strength of their claims. It is for the Minister, and not for the Commissioner, to weigh against the claims in justice and morality of those traditional owners any competing claims or considerations, including specific and identified detriment to others, which might militate against a grant: the Commissioner's function, in relation to detriment to others, is "to make an evaluation of the evidence"; "the resolution of competing interests" is left to "government" (see Brennan J. in Meneling Station at p 73; p 92 of ALR quoting from Toohey J's report in relation to the Finniss River Land Claim). Even if it be assumed that it would have been competent for the Commissioner in his comments on detriment to others to have indicated a personal view about whether, in relation to the land involved in the present case, the likely detriment to the respondents was such as to outweigh the claims in justice and morality of the traditional owners, the only entitlement of the respondents to have that likely detriment to them taken into account on the ultimate question whether the particular blocks should in fact be excised from any grant made under the Act was at the stage where that question arose for ministerial decision.
That being so, the Minister was not entitled to adopt the approach that the Commissioner had taken account of detriment to the respondents in deciding to "recommend" a grant of an area including the relevant blocks. Nor does it appear that the Minister mistakenly adopted that approach. To the contrary, the departmental minute which was before the Minister at the time he decided that a grant should be made to the traditional owners carefully described (pars. 2-5) the respective functions of the Commissioner and the Minister in accordance with what had been held by this Court in Meneling Station and pointed out (pars. 3 and 4) that it was for the Minister, and not for the Commissioner, to decide whether other factors, including the matters under s 50(3) of the Act upon which the Commissioner had commented but which he had not been entitled to take into account in making his "recommendation", outweighed "the fairness and justice of making a grant" to the traditional owners.
On the other hand, the Minister was, in assessing the significance of any likely detriment to others, bound to advert to, and entitled to rely upon, the comments made in the Commissioner's report. Those comments had been made by the Commissioner after a public inquiry before which interested parties had been represented and free to call evidence on relevant matters. The material which the respondents had seen fit to place before that inquiry about the position of Ranger 68 had been incomplete and, to a significant extent, positively misleading. Indeed, the evidence of Mr. Elliston, a director of Peko-Wallsend Ltd., to the effect that "Ranger 68 is in the centre" of the Barote area would appear to have been simply wrong. It is plain from the letter of 25 September 1981 written on behalf of the respondents to the Minister that any failure by the Commissioner specifically to identify in his comments the full extent of the likely detriment to the respondents involved in a grant of the relevant parcels to the traditional owners was, at best from the respondents' point of view, the result of a deliberate decision, made by the respondents for "various" but unidentified reasons, to refrain from specifying in the evidence before the Commissioner "precisely where Ranger 68 is".
In these circumstances, there is obviously great force in the conclusion reached by the learned trial judge (Beaumont J.) that the Minister was not bound to advert to the additional material furnished by the respondents about the true location of Ranger 68. The respondents, for reasons best known to themselves, had deliberately withheld that additional material from the open inquiry held for the purpose, among other things, of receiving and assessing evidence about any detriment to others which would result from a grant of the land claimed. In the absence of any satisfactory explanation of why the additional information had been deliberately withheld from the Commissioner, it was, in my view, open to the Minister to examine the information when it was furnished direct and ex parte to him (or his predecessors in office) after the Commissioner had completed his inquiry and made his report and to conclude that he was not prepared to act upon it either to correct or override the Commissioner's assessment of likely detriment to the respondents or to initiate further inquiries by himself, his Department or the Commissioner (under s 50(1)(d) of the Act).
Where I respectfully disagree with the learned trial judge's conclusion that the Minister's decision was unaffected by identifiable error is that it does not appear to me that the Minister was, in the circumstances of the present case, entitled simply to ignore, or to remain uninformed about, the very existence of the additional material. That material was credible on its face. It was obviously of considerable significance to an assessment of the extent of the detriment to the respondents which was likely to flow from a grant of the relevant blocks of land to the traditional owners; the Minister, acting reasonably, could not have been of the view that it was either irrelevant or unimportant to any such assessment or that such an assessment was irrelevant to the function he was performing. As I have indicated, the Minister was, in my view, entitled to consider the information and decide that, in the circumstances of the present case, including the absence of any satisfactory explanation of the failure to have placed the additional information before the Commissioner, he should not himself pay regard to it in determining whether a grant should be made. Furthermore, he was entitled to consider the additional material and conclude that, however important it might be to a precise assessment of likely detriment to the respondents, he need not be troubled by it for the reason that, even if it be assumed to be completely genuine and accurate, it would not have the effect of weighing the scales against the claims in justice and morality of the traditional Aboriginal owners to a grant of the relevant blocks. It seems to me, however, that the proper inference to be drawn from the evidence is that the Minister did neither of those things. He simply failed to advert at all to the existence of the additional material. This he was not, as I see the matter, entitled to do.
Subject to the foregoing and to a further comment, I am in general agreement with the reasons of Brennan J. for concluding that the appeal should be dismissed. The additional comment is that it should be apparent from the foregoing that I consider that, when the matter comes again before the Minister, he will be entitled to decide that, in the absence of any sufficient explanation of the respondents' deliberate failure to place the additional material before the Commissioner, he should not reopen one of the subjects of the Commissioner's public inquiry (i.e. detriment to others under s 50(3)(b)) to correct or override the Commissioner's comments based on the evidence which the parties had seen fit to place before that public inquiry. It will, in my view, also be open to the Minister summarily to conclude (as his statement of reasons under Administrative Decisions (Judicial Review) Act 1977 (Cth) suggests) that a grant of the relevant land should in any event be made for the reason that, even if the additional material be taken into account on the basis of an assumption that it is completely genuine and accurate, the claims in justice and morality of the traditional owners should nonetheless prevail. Otherwise, I agree, for the reasons given by Mason J. and Brennan J., that the Minister will not, in accordance with the requirements of natural justice, be free to pay regard to the additional material without first extending to other interested parties an adequate opportunity of dealing with it.