Federal Court decision on judicial review of land council actions

OUTCOME: Allowed in Part

FEDERAL COURT OF AUSTRALIA

[NAME] v Central Land Council [2018] FCA 35 File number: NTD 60 of 2016

Judge: [NAME] of judgment: 2 February 2018

Catchwords: [NAME] – judicial review – statutory interpretation of [NAME] ([NAME]) Act 1976 (Cth) – whether Central Land Council satisfied that consent of [NAME] given – whether procedural fairness denied – whether legally unreasonable – whether breach of statutory requirement concerning use of seal rendered act invalid – consideration of meaning of "grant" – application allowed in part

Legislation: [NAME] ([NAME]) Act 1976 (Cth), ss 3, 4, 5, 7, 10, 11, 12, 13, 14, 19, 19A, 20, 20B, 21, 22, 23, 27, 28, 29, 29A, 40, 45, 71, 77A [NAME] ([NAME]) Amendment Act 1987 (Cth) [NAME] (Judicial Review) Act 1977 (Cth), ss 4, 5, 6 [NAME] Act 2001 (Cth), s 127 Evidence Act 1995 (Cth), s 135 Fisheries Administration Act 1991 (Cth), s 10 Judiciary Act 1903 (Cth), s 39B [NAME] National Emergency Response Act 2007 (Cth) Associations Incorporation Ordinance 1963 (NT) [NAME] Act (NT) Land Title Act (NT) Local Government Act (NT)

Cases cited: [NAME] v Northern Land Council (1983) 20 NTR 1 [NAME] v [NAME] (1989) 18 ALD 129 [NAME] v [NAME] Protection [2016] FCA 101; 242 FCR 65 [NAME] v [NAME] Protection [2017] FCA 1508 [NAME] v [NAME] Protection [2017] FCAFC 107 Clayton v Heffron [1960] HCA 92; 105 CLR 214 Commissioner of Taxation v [NAME] [2008] HCA 32; 237 CLR 146 [NAME] v South Australia [2014] FCA 101; 218 FCR 148 [NAME] v Minister for Finance, Natural Resources and the Arts [2012] QSC 132; 192 LGERA 118 [NAME] v [COMPANY] and [RESPONDENT] Affairs [2014] FCA 25; 220 FCR 202 [NAME] v [NAME] [1999] FCA 1248; 97 FCR 32 [NAME] v [NAME] Board [1967] 1 AC 551 [COMPANY] v [NAME], Ratepayers and Councillors of the Shire of Maffra [1948] HCA 46; 77 CLR 544 [NAME] v [COMPANY] (1971) 17 FLR 14 [NAME] v [NAME]-[COMPANY] [1986] HCA 40; 162 CLR 24 [NAME] Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 [NAME] and Citizenship v [NAME] [2013] HCA 18; 249 CLR [ADDRESS] Co v Normandin [1917] AC 170 [NAME] v Northern Land Council [2006] FCA 1130; 154 FCR 324 [NAME] v [NAME] and Citizenship [2012] FCA 478 [NAME] v [NAME] [COMPANY] [2008] HCA 29; 236 CLR 24 Plaintiff S156/2013 v [NAME] Protection [2014] HCA 22; 254 CLR 28 Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; 211 CLR 476 [COMPANY] v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; 144 CLR 13 R v Toohey, Ex parte [COMPANY] [1982] HCA 69; 158 CLR 327 R v [NAME] (No 9) [2001] TASSC 97; 162 FLR 290 Repatriation Commission v Strickland (1990) 12 AAR 343 [NAME] v Northern Land Council [2015] FCA 36 [NAME] v Islington London Borough Council [2009] EWCA Civ 578 Szelagowicz v Stocker (1994) 54 IR 302 [NAME] v [NAME] Protection [2017] HCA 34; 347 ALR 405 [COMPANY] v Brisbane City Council [2001] QCA 528 [NAME] v [NAME] Affairs [1985] FCA 449; 8 FCR 167 Wurridjal v Commonwealth [2009] HCA 2; 237 CLR 309

Date of hearing: 26-30 June 2017

Registry: [NAME]: General Division

National Practice Area: [NAME] Rights

Category: Catchwords

Number of paragraphs: 480

Counsel for the Applicants: [redacted]

Solicitor for the Applicants: [redacted]

Counsel for the First and Fifth Respondents: [redacted]

Solicitor for the First and Fifth Respondents: [redacted]

Counsel for the [NAME[NAME]: Mr [COUNSEL] with Mr [COUNSEL]

Solicitor for the [NAME[NAME]: [NAME]

Solicitor for the Third Respondent: [redacted]

Solicitor for [RESPONDENT] Respondent: [redacted]

ORDERS NTD 60 of 2016

BETWEEN: [APPELLANT[NAME] First Applicant

[NAME] [NAME] Applicant

[COMPANY] ([NAME]) Third Applicant

AND: CENTRAL LAND COUNCIL First Respondent

[NAME] [NAME] Respondent

MACDONNELL REGIONAL COUNCIL (and others named in the Schedule) Third Respondent

JUDGE: [NAME] OF ORDER: 2 February 2018

THE COURT ORDERS THAT:

1. The parties are to confer and file, on or before 4 pm on 16 February 2018 joint proposed minutes of orders reflecting the Court's reasons for judgment.

2. In the absence of any agreement as to appropriate orders and relief, on or before 4 pm on 2 March 2018, the parties are to file written submissions, limited to [NAME] pages, supporting the orders for which they contend and attaching copies of their respective proposed orders.

THE COURT DIRECTS THAT:

3. If the parties agree on appropriate orders for costs, and (if applicable) on any lump sum figures for costs, they are to file a joint minute of proposed orders on or before 4 pm on 16 February 2018.

4. In the absence of any joint proposed costs orders, on or before 4 pm on 2 March 2018, the parties are to file and serve submissions, limited to [NAME] pages, on appropriate orders for costs, including whether any costs orders should be made by way of a lump sum and if so, how that lump sum should be determined. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

[NAME]: INTRODUCTION [1] The role of [NAME] in this proceeding [8] Relevant Statutory Provisions [15] The framework and objectives of the [NAME] [15] The [NAME] provisions [16] Judicial review provisions [32] [NAME], the key entities and the general sequence of events [37] The [NAME] status of [NAME] and licence [38] The evidence [45] [NAME] [51] [NAME] [57] The way [NAME] have been organised in remote [NAME] [65] The relevance of [NAME] to the issues in this case [71] The role and structure of [NAME] [78] The [NAME] [79] The [NAME] [87] The general sequence of events [94] The grounds of review and the competing arguments [163] Ground 1: [NAME]'s satisfaction of consent of [NAME] [164] Ground 2: lack of evidence to form satisfaction of consent of [NAME] [173] Ground 3: denial of procedural fairness [177] Ground 4: non-provision of the actual [NAME] [182] Ground 5: failure to consider the identity of the [NAME] and their decision-making processes [185] Ground 6: brief to Mr [NAME] [188] [NAME]'s reliance on s 19(6) of the [NAME] [196] The challenge to the grant of [NAME] by the [NAME] [199] The seal contention [203] The contention that there has been no grant [209] [NAME] position in summary [212] RESOLUTION [220] Preliminary matters [220] The [NAME]'s objectives and scheme [220] Statutory construction [234] Fact finding [240] Fact finding on the applicants' challenge to the [NAME] decision [240] [NAME] [NAME] ownership, the [NAME] and decision-making [242] An observation about the process [262] What occurred at the [COMPANY] meeting [263] The relevance of the witness evidence from [NAME] [276] Mr [NAME] role [291] The application of s 77A of the [NAME] [299] What the [NAME] was given, and what it was told [307] Fact finding on the seal affixing argument [329] The applicants' challenge to the [NAME] decision (Grounds 1-6) [333] Formation of the satisfaction required by s 19(5): Grounds 1 and 2 [333] Procedural fairness: Grounds 3 and 4 [374] Ground 3 [376] Ground 4 [382] Failure to consider relevant material: Ground 5 [396] Legal unreasonableness: Ground 6 [407] Conclusion on the six grounds of judicial review [421] The applicants' challenge to the grant of [NAME] [423] The applicants' challenge to the affixing of the seal [425] The operation and effect of s 19(6) on the grants and the [NAME] decision [476] Appropriate relief [479]

INTRODUCTION 1 This proceeding concerns the grant, in October 2016, of four [NAME] and a licence over [NAME] land as that term is defined in s 3 of [NAME] ([NAME]) Act 1976 (Cth) ([NAME]). The [NAME] ([NAME] [NAME] and [NAME] [NAME] [NAME] respectively) live in the community of [NAME] in [NAME] and are part of that community's [COMPANY] under the [NAME]. The third applicant (the [APPELLANT] or "[NAME]") is a body corporate established by a number of [NAME] from the [NAME]. The first and fifth respondents, the Central Land Council ([NAME]) and the [COMPANY] ([NAME]) respectively, are the entities whose decisions and conduct is impugned in the proceeding. The [NAME], third, [RESPONDENT[NAME] ([NAME], MacDonnell Regional Council, [NAME] and [RESPONDENT] ([RESPONDENT]) respectively) are the [NAME]/licensee of [NAME] and licence granted by the [NAME], at the discretion of [NAME]. 2 The originating application also named three individual members of [NAME] as respondents, however at the commencement of the trial, the proceeding was discontinued as against those respondents. 3 The phrase "[NAME]" is a defined phrase in the applicants' pleadings. The definition essentially limits the phrase to the way it is used in the [NAME] ([NAME] of the land and [NAME] [NAME] with an interest in the land). In these reasons, I use the phrase more colloquially to include those two groups, but also to include all those [NAME] who may be living in the community of [NAME]. 4 On 16 November 2016, the applicants commenced this proceeding seeking relief with respect to two matters. Those matters are: (1) A direction given by [NAME] under the [NAME] to the [NAME] to grant [NAME] and a licence over various parcels of land within the [NAME] to [NAME], the Council, [NAME] and the [RESPONDENT]; and (2) The grant of those [NAME] by the [COMPANY] to each of [NAME], the Council, [NAME] and the [RESPONDENT]. 5 Two events which assume significance in the factual narrative are first, a meeting on 12 October 2016 of [NAME] and [NAME] [NAME], along with [NAME] and [NAME] [NAME] with interests in the [NAME] lands; and [NAME], a meeting on 19 October 2016 of the [NAME] delegated to make the decision about whether or not to give a direction to the [NAME] to grant the impugned [NAME] and licence. 6 The issues raised by the applicants' claims have considerable legal and factual complexity. However, not all of those complex issues need to be finally determined, given the view I have taken of [NAME]'s decision-making and the construction and operation of the [NAME]. 7 For the reasons that follow, I consider the applicants are entitled to relief only in one respect, relating to the execution of [NAME] and licence. I have formed some preliminary views about the kind of relief that is appropriate and have set those views out in these reasons. The parties will be given an opportunity to make submissions about the appropriate form of relief. The application is otherwise to be dismissed.

The role of [NAME] in this proceeding 8 There was some debate between the applicants and [NAME] about the latter's role in this proceeding. [NAME] and [RESPONDENT] took an active role as a contradictor for the two [NAME] in which they had an interest. [NAME] and the Council elected not to do the same, and appeared to have relied on [NAME], [NAME] and [RESPONDENT] to be the active contradictors. [NAME] played no active part in the proceeding. The Council appeared briefly at the hearing and informed the Court it adopted the submissions made on behalf of [NAME] and [NAME], while [NAME] did not appear at the hearing and informed chambers that it "has appeared only as an observer to date and will abide the result of these proceedings". [NAME] played an active role, it also often adopted the submissions made by [NAME]. There were some points of difference, and [NAME] made at least one important additional submission, about the operation of s 14 of the [NAME]. 9 [NAME] however, was the decision-maker. Its role in a judicial review would usually accord with the principles set out in R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; 144 CLR 13. 10 That is certainly how a Land Council's role in [NAME] judicial review proceedings has been viewed. In [NAME] v Northern Land Council [2006] FCA 1130; 154 FCR 324 at [14], [NAME] said: The [NAME] took the view that it should not play an active role in these proceedings except in one respect, because there is a proponent and an opponent to the claims made. That was a proper approach: R v Australian Broadcasting Tribunal; Ex parte [NAME] (1980) 144 CLR 13 at 33-35. It made submissions concerning its powers and the proper construction of the ALRA. It took that position because there was no intervention by the Attorney-General or [NAME] public officer to inform the Court on those issues, beyond the particular interests of the parties. In my view, the [NAME] acted consistently with the decision in [NAME] in adopting that role: see, eg [COMPANY] v Offıce of the Regulator-General (2001) 3 VR 93 at [44]. 11 Ultimately, the applicants did not press for [NAME] to be restrained, formally or informally, from adopting the role it clearly wished to play. Its submissions were of assistance to the Court, however it conducted the proceeding in a truly adversarial way – making a large number of objections to evidence, including to oral evidence, objecting to the course the applicants sought to adopt, and filing a lengthy notice to admit rather than agreeing facts as the Court had invited the parties to do. 12 [NAME] made brief written submissions to the effect that [NAME] was the appropriate contradictor, because of its greater level of knowledge of the course of events, which none of the [NAME] possessed. That submission is factually correct, but it does not address the principles which lie behind the [NAME] approach. 13 [NAME]'s role as the decision-maker and its protective functions under s 23 in the respect of [NAME], [NAME] cross-examined [NAME] in defence of its own decision-making. The decision whether to assume a role as an active and adversarial contradictor in a proceeding such as this should be the subject, in the future, of careful consideration by a Land Council. [ADDRESS] also bears some responsibility for not having taken a more active role early in this proceeding to ascertain whether [NAME] should have been held to a position closer to [NAME] than the one it wished to adopt. 14 Accordingly, I have adopted the approach of referring to submissions made on behalf of [NAME], although that should be understood as submissions adopted by the [NAME], unless [NAME] indicated particular disagreement with a [NAME] submission. I also note here that [NAME] and [NAME] were jointly represented by the same counsel and made joint submissions – where I refer to [NAME]'s submissions, that includes the [NAME]'s position. Likewise, [NAME] and [RESPONDENT] were jointly represented by the same counsel and also made joint submissions. Where I refer to [NAME]'s submissions, that includes the [RESPONDENT]' position.

Relevant Statutory Provisions

The framework and objectives of the [NAME] 15 I deal with the objectives of the [NAME], and what has been said about its operation, at [223] to [236] below. In this part of my reasons, I simply set out the relevant statutory provisions from that Act, and from the [NAME] (Judicial Review) Act 1977 (Cth) (AD(JR) Act).

The [NAME] provisions 16 The [NAME] establishes a process through which [NAME] in [NAME] can secure rights of a proprietary kind in the land over which they have "affiliations" in accordance with [NAME] law and custom. The statutory vehicle through which proprietary rights are held is [COMPANY]. The process of making grants of [NAME] land under the [NAME] is not relevant to this proceeding but its core aspects are found in ss 5, 10, 11 and 12 of the [NAME], together with specific provisions for particular lands and communities. The process is [NAME] with the identification of who are the "[NAME]" (as defined in s 3(1)) for the land, and whether [NAME] [NAME] have interests in the area which should be recognised, or affect a grant to the [NAME]. The [NAME] has held land as a result of this process since 1978, through the [NAME]. 17 The [NAME] version of the [NAME] is the same version as that in force on 19 October 2016, the date of [NAME]'s impugned decisions. The provisions I set out here are taken from this version. 18 Section 4 of the [NAME] provides for the establishment of [NAME]. The fifth respondent, the [NAME], was established under this provision. Those parts of s 4 which relate to the use of the seal of the [NAME] assume some importance in this proceeding. Section 4 relevantly provides: 4 [NAME] (1) The Minister may, by notice published in the Gazette, establish [NAME] to hold title to land in [NAME] for the benefit of [NAME] entitled by [NAME] tradition to the use or occupation of the land [NAME], whether or not the [NAME] entitlement is qualified as to place, time, circumstance, purpose or permission, and, subject to subsections 10(1) and (2), shall so establish [NAME] to hold the land described in Schedule 1. … (1AB) To avoid doubt, the Minister may establish [COMPANY] under subsection (1) for the purpose of it holding land that is to be transferred to it under subsection 19(4). … Legal status of [COMPANY] (3) [COMPANY]: (a) is a body corporate, with perpetual succession; (b) shall have a common seal; (c) subject to this Part, may acquire, hold and dispose of real and personal property; and (d) may sue and be sued in its corporate name. Common seal of [COMPANY] (4) The common seal of [COMPANY] shall be kept by a member of the staff of the Land Council in the area of which the [COMPANY] holds land who has been authorized by the Land Council for the purpose. (5) The common seal of [COMPANY] is to be affixed to a document only with a written authority signed by: (a) if the Trust consists of 4 or more members—at least 3 of those members; or (b) if the Trust consists of 3 members—at least 2 of those members. Note: Section 7 deals with the membership of [COMPANY]. (6) All courts, [NAME] and persons acting judicially shall take notice of the common seal of [COMPANY] affixed to a document and shall presume that it was duly affixed. Notices are not legislative instruments (7) A notice under subsection (1), (1AC) or (2B) is not a legislative instrument. 19 The function of [NAME] and the limitations on the way their functions must be performed are set out in s 5: 5 Functions of [NAME] (1) The functions of [COMPANY] are: (a) to hold title to land vested in it in accordance with this Act; (b) to exercise its powers as owner of land referred to in paragraph (a) for the benefit of the [NAME]; and (c) where the [COMPANY] is named as the [NAME] of land in a deed of grant held in escrow by a Land Council—to acquire, as and when practicable, the [NAME] and interests of [NAME] persons in the land with a view to the surrender to the [NAME] of those [NAME] and interests and the delivery to the [COMPANY] of the deed of grant held by the Land Council. (2) [COMPANY]: (a) shall not exercise its functions in relation to land held by it except in accordance with a direction given to it by the Land Council for the area in which land is situated; and (b) where such a direction is given to it—shall take action in accordance with that direction. (3) The Lands Acquisition Act 1989 does not apply to the acquisition by [COMPANY], under this Act, of an estate or interest in land. 20 Separately, [NAME] are established under s 21 of the [NAME]. Section 22 provides that these Councils are bodies corporate: 22 Land Council to be body corporate etc. (1) A Land Council: (a) is a body corporate, with perpetual succession; (b) shall have a common seal; (c) may acquire, hold and dispose of real and personal property; and (d) may sue and be sued in its corporate name. Note: The Public Governance, Performance and Accountability Act 2013 applies to a Land Council. That Act deals with matters relating to corporate Commonwealth entities, including reporting and the use and management of public resources. (2) All courts, [NAME] and persons acting judicially shall take notice of the common seal of a Land Council affixed to a document and shall presume that it was duly affixed. 21 The functions of [NAME] are set out in s 23. In particular, this provision makes clear that [NAME] are to consult with [NAME] and communities in respect of [NAME] land, and in some circumstances to act only after the consent of [NAME], as a group, has been given (see s 23(3)). 23 Functions of Land Council (1) The functions of a Land Council are: (a) to ascertain and express the wishes and the opinion of [NAME] living in the area of the Land Council as to the management of [NAME] land in that area and as to appropriate legislation concerning that land; and (b) to protect the interests of [NAME] of, and [NAME] [NAME] interested in, [NAME] land in the area of the Land Council; and (ba) to assist [NAME] in the taking of measures likely to assist in the protection of sacred sites on land (whether or not [NAME] land) in the area of the Land Council; and (c) to consult with [NAME] of, and [NAME] [NAME] interested in, [NAME] land in the area of the Land Council with respect to any proposal relating to the use of that land; and (d) where the Land Council holds in escrow a deed of grant of land made to [COMPANY] under section 12: (i) to negotiate with persons having [NAME] or interests in that land with a view to the acquisition of those [NAME] or interests by the [COMPANY]; and (ii) until those [NAME] or interests have been so acquired, to negotiate with those persons with a view to the use by [NAME] of the land in such manner as may be agreed between the Land Council and those persons; and (e) to negotiate with persons desiring to obtain an estate or interest in land in the area of the Land Council: (i) where the land is held by [COMPANY]—on behalf of [NAME] (if any) of that land and of any [NAME] [NAME] interested in the land; and (ii) where the land is the subject of an application referred to in paragraph 50(1)(a)—on behalf of the [NAME] of that land or on behalf of any [NAME] [NAME] interested in the land; and (ea) to assist [NAME] in the area of the Land Council to carry out commercial activities (including resource [NAME], the provision of tourist facilities and agricultural activities), in any manner that will not cause the Land Council to incur financial liability or enable it to receive financial benefit; and (eb) for land that is a community living area and in the area of the Land Council—to assist the owner of the land, if requested to do so, in relation to any dealings in the land (including assistance in negotiating [NAME] of, or [NAME] grants of interests in, the land); and (f) to assist [NAME] claiming to have a [NAME] land claim to an area of land within the area of the Land Council in pursuing the claim, in particular, by arranging for legal assistance for them at the expense of the Land Council; and (fa) to negotiate, and enter into agreements, as necessary, for the purposes of subsection 70(4); and (g) to compile and keep: (i) a register recording the names of the members of the Land Council; and (ii) a register recording the names of the members of the [NAME] holding, or established to hold, [NAME] land in its area and descriptions of each area of such [NAME] land; and (h) to supervise, and provide [NAME] or [NAME] assistance for, [NAME] holding, or established to hold, [NAME] land in its area; and (i) such [NAME] functions as are prescribed by the regulations. (2) A Land Council may, with the approval of the Minister, perform any functions that may be conferred on it by a law of [NAME], including, without limiting the foregoing, functions in relation to: (a) the protection of sacred sites; (b) access to [NAME] land; and (c) schemes for the management of wildlife on [NAME] land. (3) In carrying out its functions with respect to any [NAME] land in its area, a Land Council shall have regard to the interests of, and shall consult with, the [NAME] (if any) of the land and any [NAME] [NAME] interested in the land and, in particular, shall not take any action, including, but not limited to, the giving of consent or the withholding of consent, in any matter in connexion with land held by [COMPANY], unless the Land Council is satisfied that: (a) the [NAME] (if any) of that land understand the nature and purpose of the proposed action and, as a group, consent to it; and (b) any [NAME] or group that may be affected by the proposed action has been consulted and has had adequate opportunity to express its view to the Land Council. (4) The reference in paragraph (1)(e) to an estate or interest in land includes a reference to a licence in respect of that land. 22 The term "[NAME]" is defined in s 3(1) of the [NAME] to mean: [NAME], in relation to land, means a local descent group of [NAME] who: (a) have common spiritual affiliations to a site on the land, being affiliations that place the group under a primary spiritual responsibility for that site and for the land; and (b) are entitled by [NAME] tradition to forage as of right over that land. 23 The powers of [NAME] are set out in s 27: 27 Powers of Land Council (1) Subject to this Act, a Land Council may do all things necessary or convenient to be done for or in connexion with the performance of its functions and, without limiting the generality of the foregoing, may: (a) employ staff; (b) obtain the advice and assistance of persons who are expert in any matter with which the Council is [NAME] (including assistance in connection with the administration of the affairs of the Council); (c) give lawful directions to [NAME] holding land in its area concerning the performance of their functions; and (d) receive moneys due and owing to [NAME] holding, or established to hold, land in its area and give a valid discharge for those moneys. (1A) A Land Council may, on the request of an [NAME] that has received an amount of money from the Council under this Act, provide [NAME] or [NAME] assistance to the corporation. (2) Where a Land Council employs a person as a staff member, the terms and conditions of the person's employment are such as are from time to time determined by the Land Council. (2A) Where a Land Council obtains the advice and assistance of a person under paragraph (1)(b), the terms and conditions of the engagement of that person are such as are approved by the Land Council. (3) A Land Council shall not, without the approval of the Minister, enter into, or permit [COMPANY] holding land in its area to enter into, a contract involving the payment or receipt of an amount exceeding $1,000,000, or, if a higher amount is prescribed, that higher amount. (4) The Minister shall not give an approval under subsection (3) with respect to entering into a contract relating to [NAME] land unless the Minister is satisfied that the [NAME] has, in taking the action that has resulted in the proposed contract, complied with any duty imposed on it by subsection 23(3). 24 [NAME] may appoint a [NAME] of its members to assist the Council with the performance of its functions or the exercise of its powers, in accordance with s 29A: 29A Committees (1) A Land Council may, by notice in writing, appoint a [NAME] or committees of its members to assist the Council in relation to the performance of any of its functions or the exercise of any of its powers. Content of notice (2) The notice must specify: (a) the name of each [NAME] member; and (b) if [NAME] is appointed in relation to a particular area of the Land Council—that area. Number of [NAME] (3) A [NAME] must consist of at least 7 members or such [NAME] number as is prescribed by the regulations. Rules for conduct of meetings (4) The Land Council must make written rules providing for and in relation to the convening of meetings, and the procedure for the conduct of meetings, of a [NAME] appointed under this section. The rules are not a legislative instrument. (5) The Land Council must give a copy of the rules made under subsection (4) to the Minister. Minutes (6) A [NAME] must keep minutes of its meetings. Inspection (7) The Land Council must allow: (a) the [NAME] of [NAME] land in the area of the Council; or (b) any [NAME] living in the area of the Council; to inspect, at any reasonable time without charge: (c) rules made under subsection (4); or (d) the minutes of [NAME] meetings ([NAME] than any part of the minutes that relates to an excludable matter). 25 [NAME] may delegate their functions and powers to a [NAME] in accordance with s 28(2): Delegation to [NAME] (2) A Land Council may, in writing under its common seal, delegate to a [NAME] appointed under section 29A any of the Council's functions or powers under this [NAME] than the following: (aa) the making of a request under section 21E; (a) the making of determinations under section 35; (b) any function or power prescribed by the regulations. 26 In relation to dealings with land occupied by the [NAME], s 14 provides particular entitlements to the [NAME]: 14 Occupation etc. by the [NAME] etc. of [NAME] land vested in [COMPANY] (1) Where, on the vesting in [COMPANY] of an estate in fee simple in land, the land is being occupied or used by the [NAME] or, with the licence or permission of the [NAME], by an Authority, the [NAME] or the Authority is entitled to continue that occupation or use for such period as the land is required by the [NAME] or the Authority. (2) During the period for which, by virtue of subsection (1), the [NAME] or an Authority is entitled to the occupation or use of land, any buildings and improvements on that land shall be deemed to be the property of the [NAME] or the Authority. (3) Nothing in this section prevents the granting by [COMPANY] of a lease of land referred to in subsection (1) to the Commonwealth, [NAME] or an Authority, as the case may be, and, if such a lease is granted, the land ceases to be land to which this section applies. (3A) Nothing in this section prevents [COMPANY] granting a lease of land to an [NAME] under section 19A that includes land referred to in subsection (1) of this section. (3B) If land (the applicable land): (a) is of a kind referred to in subsection (1); and (b) is part of land that is leased to an [NAME] under section 19A; nothing in this section prevents the [NAME] granting a sublease of the applicable land to the Commonwealth, [NAME] or an Authority, as the case may be. (3C) If such a sublease is granted, the applicable land ceases to be land to which this section applies. (4) This section does not apply in relation to an occupation or use of land that is authorized by the Atomic Energy Act 1953 or any [NAME] authorizing mining for minerals and this section does not prejudice the operation of the Atomic Energy Act 1953 or that [NAME], as the case may be. 27 Within this context of the functions of the [NAME] and [NAME], the requirements to consult with [NAME] and the occupation of land by the [NAME], s 19 of the [NAME] provides for the dealings and disposals of interests in land by [NAME]. It commences with a prohibition about dealing with [NAME] land and then sets out the circumstance in which that prohibition does not apply. Section 19 relevantly states: 19 Dealings etc. with interests in land by [NAME] (1) Except as provided by this section or section 19A or 20, [COMPANY] must not deal with or dispose of, or agree to deal with or dispose of: (a) any estate or interest in land vested in it; or (b) the land described under the heading "JABIRU" in Part 4 of Schedule 1. … (2) With the consent, in writing, of the Minister, and at the direction, in writing, of the relevant Land Council, [COMPANY] may, subject to subsection (7), grant an estate or interest in land vested in it to an [NAME] or an [NAME]: (a) for use for residential purposes by: (i) [NAME] and his or her family; or (ii) an employee of [NAME] or the corporation, as the case may be; (b) for use in the conduct of a business by [NAME] or the corporation, not being a business in which a person who is not an [NAME] has an interest that entitles him or her to a share in, or to a payment that varies in accordance with, the profits of the business; or (c) for any community purpose of the [NAME] or group for whose benefit the [COMPANY] holds the land. (3) With the consent, in writing, of the Minister, and at the direction, in writing, of the relevant Land Council, [COMPANY] may, subject to subsection (7), grant an estate or interest in land vested in it to the Commonwealth, [NAME] or an Authority for any public purpose or to a [NAME] for any [NAME] purpose. (3A) If [COMPANY] is considering granting a lease under subsection (3), the relevant Land Council may, by notice in writing given to the Minister, request that, if the [COMPANY] and the Commonwealth intend to enter into the lease, the Executive Director: (a) enter into the lease on behalf of the Commonwealth; and (b) administer the lease. (3B) If the Minister receives a request under subsection (3A), the Minister must, by notice in writing given to the relevant Land Council, agree or refuse to agree to the request. (3C) A notice given under subsection (3A) or (3B) is not a legislative instrument. … (4) With the consent, in writing, of the Minister and at the direction, in writing, of the relevant Land Council, [COMPANY] may: (b) transfer to [NAME] [COMPANY], or surrender to the [NAME], the whole of its estate or interest in the whole, or any part of, the land vested in it. Note: See also section 20A (which deals with the application of the law of [NAME] relating to the transfer of land). (4AA) Any right, title or [NAME] interest in land transferred under subsection (4) that existed immediately before the transfer is preserved as a right, title or interest in that land after the transfer. (4AB) Any agreement in respect of land transferred under subsection (4) that was entered into by the transferor [COMPANY] and that is in force immediately before the transfer is taken to have the same force and effect, after the transfer, as the agreement would have had if it had been entered into by the transferee [COMPANY]. (4A) With the consent, in writing, of the Minister, and at the direction, in writing, of the relevant Land Council, [COMPANY] may, subject to subsection (7), grant an estate or interest in the whole, or any part, of the land vested in it to any person for any purpose. (5) A Land Council shall not give a direction under this section for the grant, transfer or surrender of an estate or interest in land unless the Land Council is satisfied that: (a) the [NAME] (if any) of that land understand the nature and purpose of the proposed grant, transfer or surrender and, as a group, consent to it; (b) any [NAME] or group that may be affected by the proposed grant, transfer or surrender has been consulted and has had adequate opportunity to express its view to the Land Council; and (c) in the case of a grant of an estate or interest—the terms and conditions on which the grant is to be made are reasonable. (6) Where a Land Council, in giving a direction for a proposed grant, transfer or surrender of an estate or interest in land, fails to comply with subsection (5), that failure does not invalidate that grant, transfer or surrender unless the person to whom the grant, transfer or surrender was made procured the direction of the Land Council by fraud. (7) The consent of the Minister is not required for the grant under subsection (2), (3) or (4A) of an estate or interest the term of which does not exceed 40 years. (8) The [NAME] of an estate or interest under this section is not empowered to transfer his or her interest as such [NAME] to [NAME], or to grant to [NAME] an interest dependent upon his or her interest as such [NAME], except with the consent, in writing, of the relevant Land Council and, if the consent of the Minister was required to the grant of that estate or interest to the [NAME], the consent, in writing, of the Minister. (8A) A Land Council may give a consent under subsection (8) at the time it gives a direction under subsection (2), (3), (3F), (3H) or (4A) or at any later time. (8B) The Minister may give a consent under subsection (8) at the time he or she gives a consent under subsection (2), (3), (3F), (3H) or (4A) or at any later time. (8C) A consent of the Minister or a Land Council under subsection (8) relating to a transfer or grant may: (a) be general; or (b) be expressed to be limited to a [NAME] or a person included in a [NAME] class. (9) Where a grant of an estate or interest is invalidated, by virtue of subsection (6), on account of fraud, that invalidity does not affect the rights of a person who has, for value and without notice of the fraud, accepted the transfer of that estate or interest or been granted an interest dependent upon that estate or interest. (9A) When the Minister is satisfied that a Land Council has refused, or is unwilling, to give a direction under subsection 11A(5) to [COMPANY] to grant an estate or interest in land in accordance with an agreement entered into by the Land Council under subsection 11A(2), the Minister shall, in the name of, and on behalf of, that Land Council, give the [COMPANY] that direction. (9B) Where the Minister is satisfied that [COMPANY] has refused, or is unwilling, to comply with a direction given under subsection 11A(5), or subsection (9A) of this section, to grant an estate or interest in particular land on particular terms and conditions, the Minister shall, in the name of, and on behalf of, that [COMPANY], grant that estate or interest in relation to that land on those terms and conditions. (10) In this section, relevant Land Council, in relation to land, means the Land Council for the area in which the land is situated. (11) A reference in this section to an estate or interest in land includes: (a) a reference to a licence granted in respect of that land including, but without limiting the generality of the foregoing, a licence granted under a law of [NAME] relating to the mining or [NAME] of extractive mineral deposits; or (b) a reference to a lease or [NAME] interest in that land, or a right granted in respect of that land, under such a law. (12) The preceding provisions of this section do not authorise the grant by [COMPANY] of the fee simple in land vested in it except in the circumstances referred to in paragraph (4)(b). (13) If [COMPANY] grants an estate or interest in [NAME] land under this section, then, at the direction, in writing, of the relevant Land Council, the [COMPANY] may, in writing, authorise a [NAME], or any person included in a [NAME] class of persons, to enter or remain on the land for a [NAME] purpose that is related to that estate or interest. Note: Section 70 will not apply to a person who enters or remains on the land in accordance with such an authorisation: see subsection 70(2B). (14) A direction or an authorisation under subsection (13) is not a legislative instrument. 28 "Grant" is defined in s 3(1): grant, in relation to an interest in land (including any interest referred to in a paragraph of subsection (2) of this section), includes the doing of any action by reason of which the interest arises. 29 In relation to the phrase "estate or interest in land", subsection 3(2) states: (2) Unless the contrary intention appears, a reference in this Act to an estate or interest in land includes a reference to an interest by way of a right against the [NAME] to a grant of an estate or interest in land, but does not include a reference to: (a) a mining interest; (b) an interest arising out of the operation of the Atomic Energy Act 1953 or any [NAME] authorizing mining for minerals; (ba) a lease or [NAME] interest in land, or a right granted in respect of land, under a law of [NAME] relating, in whole or in part, to the mining or [NAME] of extractive mineral deposits; (c) an interest arising out of the taking possession, mining or occupation of land by virtue of a [NAME]'s right; or (d) an interest by way of the occupation or use, with the licence or permission of the [NAME], of land by an Authority or a [NAME]. 30 Section 77A is an important provision, although it did not feature much in the parties' submissions, a problem to which I return. It is expressed to have a deeming effect, and deals with the circumstances in which the consent of [NAME] can be taken to have been given: 77A Consents of [NAME] Where, for the purposes of this Act, the [NAME] of an area of land are required to have consented, as a group, to a particular act or thing, the consent shall be taken to have been given if: (a) in a case where there is a particular process of decision making that, under [NAME] tradition of those [NAME] or of the group to which they belong, must be complied with in relation to decisions of that kind—the decision was made in accordance with that process; or (b) in a case where there is no such process of decision making—the decision was made in accordance with a process of decision making agreed to and adopted by those [NAME] in relation to the decision or in relation to decisions of that kind. 31 The [NAME] rights of [NAME] to use or occupy [NAME] land are made subject to grants such as those made under s 19: 71 [NAME] rights to use or occupation of [NAME] land (1) Subject to this section, an [NAME] or a group of [NAME] is entitled to enter upon [NAME] land and use or occupy that land to the extent that that entry, occupation or use is in accordance with [NAME] tradition governing the rights of that [NAME] or group of [NAME] with respect to that land, whether or not those rights are qualified as to place, time, circumstances, purpose, permission or any [NAME] factor. (2) Subsection (1) does not authorize an entry, use or occupation that would interfere with the use or enjoyment of an estate or interest in the land held by a person not being [COMPANY] or an incorporated association of [NAME]. (3) A reference in this section to an estate or interest in [NAME] land includes a reference to: (a) a licence granted under section 19; and (b) a licence granted by the [NAME] of a lease granted under section 19A; and (c) a licence granted by a sublessee of a sublease of a lease referred to in paragraph (b); and (d) a licence of a kind prescribed by the regulations for the purposes of this paragraph. (4) Subsection (3) does not limit section 66.

Judicial review provisions 32 The applicants invoke this Court's jurisdiction under both s 39B(1A)(c) of the Judiciary Act 1903 (Cth) and ss 5 and 6 of the AD(JR) Act. The operation and effect of s 19(6) of the [NAME] on the supervisory jurisdiction of this Court under both pieces of legislation is a key question in this proceeding, if any of the applicants' grounds of judicial review otherwise have force. The applicants' contentions about the scope and operation of the AD(JR) Act in the light of s 19(6) are somewhat novel, and it is necessary to set out some of the key provisions upon which the applicants rely. 33 Section 39B relevantly provides: 39B Original jurisdiction of Federal Court of Australia Scope of original jurisdiction (1) Subject to subsections (1B), (1C) and (1EA), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth. (1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter: (a) in which the Commonwealth is seeking an injunction or a declaration; or (b) arising under the Constitution, or involving its interpretation; or (c) arising under any laws made by the Parliament, [NAME] than a matter in respect of which a criminal prosecution is instituted or any [NAME] criminal matter. Note: Paragraph (c) does not prevent [NAME] laws of the Commonwealth conferring criminal jurisdiction on the Federal Court of Australia. 34 In form, the applicants rely on all grounds in s 5(1) of the AD(JR) Act except s 5(1)(h), although it is fair to say the focus was on paragraphs (a), (c), (d) and (e). Section 5 of the AD(JR) Act relevantly provides: 5 Applications for review of decisions (1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds: (a) that a breach of the rules of natural justice occurred in connection with the making of the decision; (b) that procedures that were required by law to be observed in connection with the making of the decision were not observed; (c) that the person who purported to make the decision did not have jurisdiction to make the decision; (d) that the decision was not authorized by the enactment in pursuance of which it was purported to be made; (e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made; (f) that the decision involved an error of law, whether or not the error appears on the record of the decision; (g) that the decision was induced or affected by fraud; … (j) that the decision was otherwise contrary to law. (2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to: (a) taking an irrelevant consideration into account in the exercise of a power; (b) failing to take a relevant consideration into account in the exercise of a power; (c) an exercise of a power for a purpose [NAME] than a purpose for which the power is conferred; (d) an exercise of a discretionary power in bad [NAME]; (e) an exercise of a personal discretionary power at the direction or behest of [NAME]; (f) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case; (g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power; (h) an exercise of a power in such a way that the result of the exercise of the power is uncertain; and (j) any [NAME] exercise of a power in a way that constitutes abuse of the power. … 35 The applicants also rely on the following parts of s 6 of the AD(JR) Act: 6 Applications for review of conduct related to making of decisions (1) Where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies, a person who is aggrieved by the conduct may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the conduct on any one or more of the following grounds: … (b) that procedures that are required by law to be observed in respect of the conduct have not been, are not being, or are likely not to be, observed; (c) that the person who has engaged, is engaging, or proposes to engage, in the conduct does not have jurisdiction to make the proposed decision; (d) that the enactment in pursuance of which the decision is proposed to be made does not authorize the making of the proposed decision; … (f) that an error of law had been, is being, or is likely to be, committed in the course of the conduct or is likely to be committed in the making of the proposed decision; … (j) that the making of the proposed decision would be otherwise contrary to law. … 36 Section 4 of the AD(JR) Act assumes some prominence in the arguments of the applicants about the effect of s 19(6) of the [NAME]. It is a compact provision, which provides: 4 Act to operate notwithstanding anything in existing laws This Act has effect notwithstanding anything contained in any law in force at the commencement of this Act.

[NAME], the key entities and the general sequence of events 37 The matters I set out in this section were the subject of notices to admit, and of affidavit evidence as to facts in dispute from those notices, as well as additional affidavit evidence. None of the factual matters I set out here are critical to the resolution of any of the applicants' grounds. Fact finding which falls into that critical category is dealt with in a later section of these reasons. I am satisfied that all of the matters to which I refer in this section have been proven on the evidence before the Court, through the admissions made, documents tendered, or unchallenged evidence.

The [NAME] status of [NAME] and licence 38 The impugned direction to grant [NAME] and licence in issue was given by [NAME] to the [NAME] on 19 October 2016, at a [NAME] meeting in [NAME]. I return to the details of the chronology in more detail below. [NAME] and licence in issue are as follows. A lease from the [NAME] to the [RESPONDENT]: a s 19(3) lease over Lots 95, 189 and 190 for [COMPANY] for a 12-year term commencing on the date the last party to execute the lease does so. There is an option to extend the lease for up to 40 years. [RESPONDENT] is a not-for-profit subsidiary wholly owned by the [COMPANY], established to support the provision of electricity, water and sewerage [COMPANY] to remote [RESPONDENT] communities in [NAME], including to the [NAME], under an agreement with the [NAME]. This lease relates to a sewer pump station, treatment ponds and overflow so as to provide the sewage infrastructure for the [NAME]. A lease from the [NAME] to the [NAME]: a s 19(3) lease over Lot 88 for [COMPANY] for a 12-year term, commencing on the date the last party to execute the lease does so. It includes an option to extend the lease for up to 40 years. This lease relates to the [NAME]. A lease from the [NAME] to the Council: a s 19(4A) lease over Lots 61, 162 and 187 for [COMPANY] for a 12-year term, commencing on 1 July 2014. It includes an option to extend for up to 40 years. This lease relates to Council offices, a works depot and landfill, and was the only lease to grant rights of possession retrospectively. A licence from the [NAME] to the Council: a s 19(4A) licence over Lots 79, 182 and 188 for community parks for a 12-year term commencing on the date the last party to execute the licence does so. It includes an option to extend the licence for up to 40 years. This licence relates to community parks and recreational facilities. A lease from the [NAME] to [NAME] over Lot 60 for a [NAME] for a 12-year term commencing on the date the last party to execute the lease does so. This lease makes no provision for an extended term. According to the terms of this lease, it was made under s 19(3) of the [NAME]. However, [NAME] for [NAME] noted during the trial that this was an error, and that the lease should actually have been made under s 19(2)(c). For the purposes of these reasons, and given that it was not raised as an issue by the applicants, it is not necessary to decide whether the lease was made under s 19(2)(c) or under s 19(3). As the [NAME] considered this lease under s 19(3), I refer throughout these reasons only to s 19(3). 39 It will be apparent from the nature of [NAME] and licence, and it is the fact, that the activities permitted under the lease were all activities that had been undertaken on the land for some considerable time prior to October 2016. 40 [NAME]'s submissions in particular tend to characterise what was occurring through these [NAME] as the regularisation of arrangements which had been in existence for some time. There is some force in that characterisation. However, what had changed, and what underlies this proceeding, is the desire of those members of the [NAME] who support the applicants, and [NAME] as an [RESPONDENT]-run corporation, to take charge of [NAME] themselves and, in effect, to either run the [COMPANY] themselves, or sub-lease them out to entities such as [NAME]. 41 At this point I should make it clear that I do not accept, on the evidence, that there was any urgency for these kinds of [NAME], in the way that [NAME] submits. As Mr [NAME] frankly conceded, [COMPANY] had been provided to the [NAME] prior to 2007 for many decades without any formal proprietary arrangements. That was because, on [NAME]'s argument, of s 14 of the [NAME]. Section 14 continued to have effect, as Mr [NAME] submits. Section 14 would have authorised any urgent repairs or sewerage works. There was no need for these [NAME] and licence to be pushed through for this to occur. 42 After the 19 October 2016 direction was made, only some of [NAME] and the licence were executed: namely those to [NAME] and the Council. [NAME] to [NAME]/[RESPONDENT] were not executed by those parties. None of [NAME] had been registered under the Land Title Act (NT), although at least some of the respondents have evinced an intention to do so and the Council, [NAME] and [RESPONDENT] [NAME] (but not the licence nor the [NAME] lease) each provide for such registration. 43 On 18 January 2017, the applicants applied for interlocutory relief to preserve the status quo pending the hearing and determination of their claims, and sought injunctive relief to preclude the remaining [NAME] from being executed and any of them from being registered under the Land Title Act. All respondents eventually gave undertakings to that effect, which were recognised in orders made by the Court on 2 February 2017. 44 Thus, the position remains as I have set out above. In reality, all of the [NAME] have continued to conduct the activities for which [NAME] provide on the land [NAME], and there has been no practical interruption or alteration to the [COMPANY] provided to the [NAME]. For example, [NAME] has continued to operate the health [COMPANY] for members of the [NAME].

The evidence 45 Considerable evidence, both documentary and by affidavit was adduced. Not all witnesses were required for cross-examination. Documents were adduced either through witnesses, or through a notice to admit filed on behalf of [NAME]. In the end, most of the key documents were agreed. [NAME] took a large number of objections to evidence and where the parties could not agree even after further encouragement, rulings were given. 46 The applicants adduced evidence from four witnesses: (1) [APPELLANT], the first applicant, was the applicants' primary witness. She affirmed four affidavits, giving evidence as to what happened at the key meeting at the [COMPANY] on 12 October 2016, at which she was present. She also gave evidence regarding the interests of her community and the [NAME], of which she was the Senior Community [NAME], and at times, [NAME], as well as evidence concerning [NAME] culture and law, and seniority within the [NAME]. (2) [COUNSEL], the applicants' legal representative, affirmed four affidavits exhibiting correspondence and documents (such as minutes and transcripts of meetings and [NAME]) relevant to the history and background of the dispute. Mr [NAME] was not subject to cross-examination. (3) [NAME] is an "[NAME]" of the [COMPANY], which is part of the [NAME] group of [NAME]. I return to these concepts below. [NAME] [NAME] affirmed an affidavit giving evidence about meetings regarding the management of [NAME] land, and her knowledge of what occurred at the [COMPANY] meeting, at which she was not present. (4) [NAME] is the senior "[NAME]" for [NAME] land. Mr [APPELLANT] gave oral evidence, after being subpoenaed by the applicants, as to whether he expressed consent to the grant of [NAME]. 47 [NAME] adduced evidence from seven witnesses: (1) [NAME] is an "[NAME]", and affirmed an affidavit, giving evidence about what occurred in the lead-up to and during the [COMPANY] meeting, at which he was present. (2) [COUNSEL] is [NAME]'s legal representative and was also present at the [COMPANY] meeting. He has been involved with [NAME]'s day-to-day management since 2015, and affirmed an affidavit giving evidence as to the lease proposals over [NAME] land and the process leading up to the execution of the instruments of grant. (3) [NAME] is the Manager of the Anthropology Section of [NAME]. He affirmed an affidavit giving evidence about the [NAME], including decision-making processes and seniority within the group, and the knowledge of [NAME] in relation to the [NAME]. (4) [NAME] is an anthropologist employed by [NAME], and attended the [COMPANY] meeting. She affirmed an affidavit giving evidence about her understanding of the [NAME] of [NAME] and seniority within the group, as well as what happened at the [COMPANY] meeting. (5) [NAME] [NAME] is a senior [NAME] assistant with [NAME] and affirmed an affidavit giving evidence about the execution of [NAME] and licence. [NAME] [NAME] was not cross-examined. (6) [NAME] [NAME] is an [NAME] officer within the Directorate Section of [NAME] and affirmed an affidavit giving evidence about the minutes and agenda items of [NAME] [NAME] meetings. [NAME] [NAME] was not subject to cross-examination. (7) [NAME] is a senior [NAME] assistant with [NAME] and affirmed an affidavit giving evidence about the signing of authorities by members of the [NAME] on the day that [NAME] [NAME] was absent from work. [NAME] [NAME] was not subject to cross-examination. 48 [NAME] and [RESPONDENT] jointly adduced evidence from four witnesses, none of whom were cross-examined: (1) [NAME] is the Director, Remote Programs and Projects, Land Tenure at the Department of [NAME] and Community [NAME] of [NAME]. She affirmed two affidavits, giving evidence regarding [NAME] and infrastructure on [NAME] land, as well as negotiation processes in respect of [NAME]. (2) [NAME] [NAME] is the CEO of the Department of Education of [NAME] and affirmed an affidavit giving evidence regarding the [COMPANY] located on [NAME] land and the lease arrangements. (3) [NAME] is the Senior Manager [COMPANY], Remote Operations, [COMPANY] and gave evidence regarding the sewerage assets, infrastructure and [NAME] over [NAME] land. (4) [COUNSEL] is the Director of Litigation, at the [NAME], Department of the Attorney-General and Justice. He affirmed an affidavit giving evidence of the circumstances surrounding the filing of the ex parte interlocutory application and originating application in November 2016. 49 The Council adduced evidence from one witness, [NAME] [NAME], the CEO of the Council. Mr [NAME] gave evidence as to the execution of [NAME] and licence and the [COMPANY] provided by the Council at [NAME]. Mr [NAME] was not cross-examined. 50 [NAME] adduced evidence from one witness, [NAME], the CEO of the [NAME]. [NAME] [NAME] affirmed an affidavit giving evidence as to [NAME]' activities, the operation and occupation of the [NAME] in [NAME], and her understanding of the events leading up to the execution of the lease over the [NAME] in 2016.

[NAME] 51 [NAME] is a community which lies about 20 km south-east of [NAME], in the country of the [NAME]. It is about 5.3 square kilometres in size, and was established in the 1960s as an [NAME] reserve. It was scheduled as [NAME] land under the [NAME] in July 1978. 52 In his affidavit, Mr [NAME] describes [NAME] traditions of [NAME] in relation to land. These propositions are not contested, and are broadly consistent with [NAME] [NAME] evidence. He deposes that [NAME] form groups that are connected to particular areas of land known in anthropological literature as "[NAME]". [NAME] [NAME] deposes that such [NAME] are referred to as "[NAME]" in the [NAME] language, a term which I adopt. These [NAME] were formed by the activities of mythological beings during a period known in English as the Dreaming. [NAME] [NAME] agrees that the term "Dreamtime" or "Dreaming Tracks" is sometimes used in English to describe this concept, which in [NAME] is called "Altyerre", but says that these words do not properly express Altyerre. [NAME] [NAME] deposes: This concept [of Altyerre] is very deeply important to us. It is hard to explain, but it concerns our ancestors, our whole system of law. It is about the "creation" and all things. It is also about our ancestors and their powers being deep in us, in our [NAME], in our law and in our ceremonies… it is not just things, and times and places… Altyerre is a continuous creation. You could think of bushfire, rain, re-growth. 53 In relation to [NAME] land, the relevant [NAME] is the [NAME]. The [NAME] with interests in and around [NAME] are a part or a subset of the wider [NAME]. The [NAME] in [NAME] trace their ancestry back to their paternal and maternal grandparents, which is customary for [NAME] societies. The [NAME] is of Penangke/Pengarte patrimoiety or "sub-section", sometimes referred to as "skin". Within this [NAME], there are two important groups of [NAME] who exercise rights and responsibilities in relation to the land: the "[NAME]" and the "[NAME]". There is some disagreement between the parties about what flows from the hierarchy of members in these groups, for the purposes of [NAME] decision-making and I discuss this at [155] below. The [NAME] have responsibilities for the care of [NAME] land and the [NAME] on that land. 54 Prior to the establishment of [NAME], the [COMPANY] ([COMPANY]) was responsible for the management of [NAME], except for NT Portion 568. [COMPANY] was incorporated as an incorporated association under the Associations Incorporation Ordinance 1963 (NT) on 22 July 1975. Under the [COMPANY]'s original constitution, membership was limited to [NAME] accepted by [COMPANY]'s governing [NAME]. Subsequently, [COMPANY] amended its constitution in 1997 to accept membership from all [NAME] persons aged 18 and over who normally reside at [NAME] or who are [NAME] of [NAME]. According to [NAME] [NAME] evidence, which was not challenged on this point and which I accept, until 30 June 2008, [COMPANY] provided [COMPANY] and community [NAME] work at [NAME] for the benefit of the [NAME], including building construction, local employment programs, community [COMPANY] such as aged care, community "night patrol" and a local bus service between [NAME] and [NAME]. 55 According to [NAME] [NAME], the status and operations of the [COMPANY] were affected by the 2007 [NAME]. I discuss the relevance of the Intervention to this proceeding at [72]. In any event, [COMPANY] ceased to exist on 1 July 2008. Legal proceedings were commenced by [NAME] [NAME] and others in relation to the Intervention, with that dispute being settled in 2015. There is no evidence before the Court in relation to that dispute. 56 In September 2012, following meetings within the [NAME], [NAME] and members of the [NAME] decided to establish the [NAME] to succeed the [COMPANY].

[NAME] 57 [NAME] was established in November 2012 under the [NAME] Act 2001 (Cth) as a company limited by guarantee. [NAME] is also registered as a charity with the Australian Charities and Not-for-profits Commission. Membership of [NAME] is open to all [NAME] over 18 years of age who are [NAME]. Its decision-making processes, as set out in its constitution, policies and procedures, are intended to allow decisions about [NAME] to be made in accordance with [NAME], or [NAME] law. 58 [NAME] was established, according to the uncontested evidence of [NAME] [NAME], because some [NAME] and [NAME] [NAME] of [NAME] were [NAME]: (a) to apply [NAME] decision-making processes to the management and [NAME] of [NAME] for the benefit of the [NAME], (b) to see [NAME] properly managed and developed by and for the benefit of the [NAME] of the [NAME] and [NAME] members of the [NAME], (c) to provide government authorities, including [NAME], a practical and meaningful way of properly consulting the [NAME] of [NAME] and/or the [NAME], and (d) to avoid facing further disempowerment and 'intervention' from government authorities including: (i) the Commonwealth Government, and [NAME] under the ALRA; and (ii) the [NAME], and the [NAME] under the Local Government Act (NT). [NAME] has been established to enable [NAME] of [NAME] to assume responsibility for the management of [NAME], as did [NAME]'s predecessor, [COMPANY]. In particular, the establishment of [NAME] was designed to improve the well-being of the [NAME] of the [NAME] and the [NAME] at [NAME]: (a) by managing the rights and entitlements under [NAME] in [NAME] of the [NAME] of [NAME] and the [NAME] resident at [NAME]; (b) by being the vehicle by which the [NAME] of [NAME] and the [NAME] resident at [NAME] exercise their rights and entitlements under [NAME] ([NAME] law) in [NAME], including under the ALRA; and (c) by governing, managing and developing [NAME]. 59 Since its establishment, [NAME] has pursued activities to give effect to its objects, including performing [NAME] repairs and maintenance, and establishing a building company to promote local training and employment. 60 The composition of [NAME] at various points in time was not in dispute. At times it might appear from some of the evidence as if [NAME] was only constituted by [NAME] [NAME]. The evidence shows that is not the case. At the time of the October 2016 meeting, [NAME] distributed a pamphlet which showed the then composition of the Board of [NAME]. It showed the following [NAME]: [NAME]: [NAME] [NAME]: [NAME] Board Member: [NAME] Board Member: [NAME] Board Member: [NAME] Board Member: [NAME] Board Member: [NAME] Board Member: [NAME] Board Member : [NAME] Board Member: [NAME] Board Member: [NAME] Board Member: [NAME] Board Member: [NAME] Board Member: [NAME] Board Member: [NAME] Board Member: [NAME] Board Member: [NAME] Board Member: [NAME] Board Member: [NAME] 61 At the 12 October 2016 meeting, according to the minutes taken by Mr [NAME] and the transcript adduced into evidence, [NAME] [NAME] informed [NAME] that following a meeting in September, a number of the board members had resigned, including Mr [NAME] and [NAME] [NAME]. Some of these resignations were subsequently withdrawn, notably (but possibly not only) [NAME] [NAME] resignation. 62 Management of the [NAME] is conducted through two [NAME] councils: the Tribal Council and the Community Council. The Tribal Council manages town planning, law and culture at [NAME], and comprises senior [NAME], or Akngerre-apate areye. Any Akngerre-apate areye who are not members of the Tribal Council, such as Mr [NAME], are to be invited to Tribal Council meetings. The Community Council manages the day-to-day [COMPANY] and administration at [NAME]. Its members are [NAME] of [NAME], and include [NAME] [NAME] and [NAME] [NAME[NAME]. 63 The fact that there were members of [NAME] who apparently voted in October 2016 against [NAME] to [NAME] (such as Mr [NAME]) was never really explained in the evidence. [NAME]'s own affidavit deposes that he remained a board member of [NAME] at the time the affidavit was made, and appears to suggest he was also a board member at the time of the 12 October 2016 meeting. 64 It is fair to say, on the evidence before the Court, that support for and involvement in [NAME] amongst [NAME] members appears to have ebbed and flowed over recent years. It is also fair to say, on the evidence, that [NAME], as [NAME], was and remains a driving force in [NAME].

The way [NAME] have been organised in remote [NAME] 65 The mechanism by which communities on [NAME] land are serviced (whether as to [NAME], infrastructure or [NAME] [COMPANY]) is through the grant of proprietary interests by way of [NAME] and licences from [COMPANY] to [NAME], which then provide the [COMPANY] back to [NAME]. Once that fact is set out, it is plain there might be [NAME] models available, but that is the [NAME] arrangement. 66 [NAME] in connection with the [NAME] occur is dealt with in [NAME] [NAME] affidavits, and I accept the evidence she gave, which was not contested. What I set out here is the position that, as I understand it, existed at the time of trial. 67 The Land Tenure Unit within the Department of [NAME] and Community [NAME] negotiates [NAME] of [NAME] land on behalf of [NAME] agencies. [NAME] are generally the relevant [COMPANY], Land Council and one of three government agency entities with authority to execute [NAME]: [RESPONDENT], the Department of [COMPANY] or [NAME]. [NAME] is a body corporate established under the [NAME] Act (NT). As I understand [NAME] [NAME] evidence, these three entities and this process applies to what might be called infrastructure or community support [NAME]. 68 Remote community [NAME] in Central Australia is dealt with separately, through the Commonwealth Executive Director of Township Leasing, which is established under s 20B of the [NAME]. This entity secures a [NAME] term lease over the [NAME], and subleases for a shorter term to [NAME]. The sub-[NAME] are for a term consistent with the Commonwealth funding period for the provision of community [NAME]. 69 [NAME] [NAME] deposed that prior to the Commonwealth's "National Emergency Response" in [NAME] in 2007, there had been an absence of formal tenure (i.e. [NAME]) over [NAME] government infrastructure on [NAME] land. She noted in her evidence however, [NAME]'s view of its rights under s 14 of the [NAME], a matter which featured in the submissions for [NAME] in this case and to which I return briefly later in these reasons. 70 [NAME] [NAME] deposes that the [NAME] has never paid rent for the lots the subject of the impugned [NAME]: that is, for the lot on which the [COMPANY] is situated, and the lots for sewerage infrastructure.

The relevance of [NAME] to the issues in this case 71 [NAME] [NAME] explained in her evidence how [NAME] has affected the tenure situation in [NAME] situated on land held under the [NAME]. At [13] of her first affidavit, she deposed: During the period 2007 to 2012, the Commonwealth held compulsory [NAME] year [NAME] over 64 communities in [NAME] under [NAME] National Emergency Response Act 2007 (Cth). Most, but not all, of these communities are located on [NAME] land granted under the ALRA. A small number are located on [NAME] freehold owned by [NAME] [NAME] granted under [NAME] legislation. During this period, the Commonwealth changed the conditions of its funding agreements to require all new capital investment in these communities to be underpinned by a voluntary [NAME] term lease at the expiry of the compulsory [NAME] year [NAME]. This led to the adoption of an [NAME] wide policy from 2008 that the [NAME] negotiate with the relevant [NAME] [NAME] (and [NAME] [NAME]) for the grant of [NAME] over all [NAME] land (and NT freehold land) on which [NAME] infrastructure was situated. (Emphasis added.) 72 It is difficult to see how a lease can be truly "voluntary" if it is required before the [NAME] [NAME] receives any capital investment in its community. It seems to me the word "voluntary" as used by [NAME] [NAME] can only mean "voluntary" as opposed to [NAME] imposed through Commonwealth legislation such as the 2007 Intervention legislation (that is, [NAME] National Emergency Response Act 2007 (Cth) and related legislation). 73 [NAME] [NAME] goes on to describe the task undertaken by the Land Tenure Unit, of which she is a part, since 2008 to set about negotiating these [NAME]. She deposes that since 2008, of the 64 existing communities, 56 now have [NAME] [NAME] in place and eight communities do not have [NAME] [NAME]. [NAME] is one of the communities without [NAME] [NAME]. Sixty-two of those 64 communities have infrastructure [NAME] as at June 2017. [NAME] is one of the communities which does not. [NAME] [NAME] deposes that her understanding of why some communities do not have these [NAME] in place is, at least as one reason, because of what she describes as "[NAME] disputes". 74 [NAME] possibility, it seems to me, is that some communities (or some [NAME] within those communities) are unhappy with the model which underpins these lease arrangements. 75 Once these circumstances are understood, it is not difficult to see why [NAME] will be [NAME] to ensure that [NAME] are granted in a way that continues and secures tenure for government tenants. If they do not achieve this outcome, at least on the way [NAME] [NAME] evidence describes the situation, the Commonwealth may not allocate any funds for capital investment into [NAME]. 76 In a [NAME] affidavit filed late with the leave of the Court, [NAME] [NAME] gives further evidence about the negotiation process for the impugned [NAME]. She deposes that from approximately 2010 onwards, [NAME] commenced negotiations with the [NAME] to secure "template" infrastructure [NAME] under s 19 of the [NAME]. The substantive terms for [NAME], including lease payments, were negotiated through this process. The negotiation process concluded in 2012, and the first [NAME] were granted in that year. 77 I note this coincides with the evidence about the first steps taken by [NAME] to conclude [NAME] over Amoounguna community land, at that time apparently negotiating with [NAME]. How that sits with [NAME] [NAME] evidence, and whether there was ever any realistic prospect of [NAME] securing those infrastructure [NAME] as head [NAME] given [NAME] was negotiating directly on a "template" basis with the [NAME], was not explored during the hearing. However, [NAME] did submit it was not lawfully possible for [NAME] to secure a "head-lease" under s 19. [NAME] accepted [NAME] could do so under s 19A.

The role and structure of [NAME] 78 [NAME] is a statutory body established as a Land Council under s 21 of the [NAME]. Pursuant to ss 23 and 27 of that Act, it has statutory functions and powers in relation to the management of [NAME] land: see the provisions set out at [22]-[24] above. Relevantly, [NAME]'s functions include ascertaining and expressing the wishes and opinions of [NAME] living in the area of [NAME] as to the management of [NAME] land in that area, protecting the interests of [NAME] in that area, consulting with [NAME] with respect to any proposal relating to the use of that land and negotiating on behalf of [NAME] with persons seeking to obtain an interest in that land. [NAME] also has the function and power to direct the [NAME], as the relevant [COMPANY], to grant an estate or interest in land vested in [NAME] to [NAME] under s 19(4A). Importantly, as a Land Council, [NAME] must not take any action in relation to land held by [NAME] unless it is satisfied that the [NAME] understand the nature and purpose of the proposed action and as a group consent to it: s 23(3)(a). There is a direct parallel between the purpose and terms of this provision and s 19(5).

The [NAME] 79 There was no dispute between the parties about who gave the impugned direction under s 19(5), and how the [NAME] was constituted. It was a [NAME] of members of [NAME] established under s 29A of the [NAME]. By s 28(2) of the Act, a Land Council can delegate to a [NAME] appointed under s 29A any of its functions or powers under the Act, aside from those [NAME] in s 28(2). 80 Membership of a Land Council, subject to eligibility requirements relating to such matters as convictions for dishonesty offences, is described in s 29(1) and (2): 29 Membership of Land Council (1) The members of a Land Council shall be [NAME] living in the area of the Land Council, or whose names are set out in the register maintained by the Land Council in accordance with section 24, chosen by [NAME] living in the area of the Land Council in accordance with such method or methods of choice, and holding office on such terms and conditions, as is, or are, approved by the Minister from time to time. (2) A Land Council may, with the approval of the Minister, co‑opt [NAME] living in the area of the Land Council as additional members, but not more than 5 such members may hold office at any one time. 81 The clear intention of s 29, and then of s 29A, is that those [NAME] who are [NAME] for the land in respect of which the Land Council performs its functions and exercises its powers will be the [NAME] who make decisions about the exercise of powers and the performance of functions by the Land Council. 82 Section 28(4) of the [NAME] provides: (4) Where the provisions of this Act require that a Land Council, before performing a function or exercising a power conferred upon it to do, or to consent to the doing of, an act or thing, satisfy itself that: (a) the [NAME] (if any) of the land affected by the performance of the function or the exercise of the power understand the nature and purpose of the act or thing and consent to it; and (b) any [NAME] or group that may be affected by the doing of the act or thing has been consulted and has had adequate opportunity to express its views to the Land Council; then, if that function or power is delegated, the delegate may perform the function or exercise the power if the delegate is satisfied: (c) of the matter referred to in paragraph (a); and (d) that any [NAME] or group that may be affected by the doing of the act or thing has been consulted and has had adequate opportunity to express its views to the delegate. 83 By s 28(4), read with both s 23(3) and s 19(5), as a delegate, [NAME] was required itself to form the requisite state of satisfaction required by s 19(5) as to consent (for [NAME]) and as to consultation, for community members affected by the proposed [NAME]. 84 The members of the [NAME] were drawn from the various regions covered by [NAME]. [NAME] covers [NAME] and [NAME]. [NAME] was the member for this region and [NAME] was the alternate member. There is no evidence one way or the [NAME] whether [NAME] [NAME] or Mr [NAME] are from [NAME]. 85 The [NAME] members, at the relevant time, including alternate members were: [NAME] (Chair) [NAME] (Deputy Chair) [NAME] [NAME] [NAME] [NAME] [NAME] (Alternate) [NAME] (Alternate) [NAME] (Alternate) [NAME] (Alternate) [NAME] (Alternate) [NAME] (Alternate) [NAME] (Alternate) [NAME] / [NAME] (Alternates) 86 This [NAME] was appointed pursuant to s 29A of the [NAME] at a meeting over 16, 17 and 18 August 2016. The resolution following that meeting also confirmed the continuing delegation of powers to [NAME].

The [NAME] 87 The [NAME] is [COMPANY] established under s 4 of the [NAME], and has the function (among others) of holding title to land vested in it under the [NAME]. By notice published in the Commonwealth Gazette on 21 July 1978, and for the purposes of holding title to land "for the benefit of [NAME] entitled by [NAME] tradition to the use or occupation of the land [NAME]" (s 4(1)), the [NAME] holds: All those pieces of land near [NAME] in the [NAME] containing an area of 530.5 hectares more or less being [NAME] 461 and 568 and being more particularly delineated on Survey Plans A 127 and [NAME] 492 respectively lodged with the Surveyor-General for [NAME]. 88 The [NAME] was subsequently granted the following [NAME] in fee simple: (1) by a Deed of Grant dated 30 May 1980, an estate in fee simple to [NAME] 461 and 568 excluding Lot 1 Townsite of [NAME] 2 Townsite of [NAME]; and (2) by a Deed of Grant dated 29 October 1986, [NAME] in fee simple to Lot 1 Townsite of [NAME] 2 Townsite of [NAME] with the Deeds of Grant to be held in escrow by [NAME] under s 10(2) of the [NAME]. 89 On 3 November 2008, [NAME] requested certificates of title to issue for Lot 1 Townsite of [NAME] 2 Townsite of [NAME], with the [NAME] as registered owner. Those certificates as to title were issued on the same day. 90 The [NAME] is constituted by members appointed by the Minister, who must be [NAME] living in the area of [NAME], in that area of land in which the [NAME] is situated, or whose names are set out in a [NAME] register of [NAME]: s 7. The [NAME] members, from 10 November 2011 to 10 November 2016, were [NAME] (Chair), [NAME], [NAME], [NAME], [NAME], [NAME] and [NAME]. From 10 November 2016, and pursuant to an instrument of appointment dated 3 November 2016, the [NAME] members were [NAME] (Chair), [NAME], [NAME], [NAME], [NAME], [NAME] and [NAME]. 91 Clearly some of the members of the Board until 10 November 2016 (including the [NAME] in this proceeding) did not agree with the granting of the impugned [NAME] and licence, and some of those appointed to the Board on and from 10 November 2016 had expressed support for the grant of the impugned [NAME] and licence, such as [NAME] who became the new Chair. However, the new Board also included persons whom the applicants allege had either not been properly consulted or had not agreed to the new [NAME], such as Mr [NAME] and [NAME] [NAME]. 92 As will become apparent later in these reasons, the change in the constitution of the [NAME] was not without significance. 93 The [NAME] may only exercise its functions in relation to that land in accordance with a direction given to it by [NAME]: s 5(2)(a). The power of the [NAME] to deal with interests in land is restricted by s 19, as set out at [28] above.

The general sequence of events 94 In the lead up to the purported grant of interests in land in October 2016, [NAME], and the community of [NAME] at [NAME], had before them two sets of proposals to obtain [NAME] of [NAME] land vested in the [NAME]. The two sets of proposals were, on the one hand, the [NAME]'s proposal to lease the whole of the [NAME] land for 99 years. If granted, the [NAME] would then tender for government contracts for [NAME] maintenance at [NAME], and engage with government authorities, including [NAME], in respect of the grant of subleases and licences and of utility easements. 95 On the [NAME] hand were the proposed [NAME] to the entities I have set out at [39] above. I shall call these the "impugned [NAME]" and include in this description the licence granted to the Council. 96 [NAME] submits that the two sets of proposals were not, in substance, mutually exclusive. It submits that if the [NAME] supported the [NAME] proposal and [NAME] adopted it through a direction under s 19A, then in effect [NAME] could become the head [NAME] to all those entities who are [NAME] of the currently impugned [NAME]. Nevertheless, at the time of the sequence of events with which the proceeding is [NAME] – the meetings in the [NAME] half of 2016 – I am satisfied that the proposals were in substance viewed and presented as alternatives at the community meetings. 97 The desire of members of the [NAME] to have more control over what was happening in their community, and over [NAME] and [COMPANY] delivered to the community, is not a new one. 98 In her affidavit evidence, [NAME] [NAME] set out her perspective on some of these matters, including [NAME] issues at [NAME], which on the evidence arose well prior to the debate which resulted in this proceeding. Some of her views, and the narrative she gave, about [NAME] issues were subject to objection by [NAME], which objection was upheld. However, the following evidence from [NAME] [NAME] was admitted: The piecemeal grant of [NAME] and interests in [NAME] as proposed by [NAME] will prevent the implementation of the [NAME] as a whole of community, viable and sustainable [NAME] strategy. I and [NAME] members of the [NAME] have put in a lot of hard work and effort over the last nine years to try to plan the [NAME] of our community and the restoration of our capacity for self-determination since the [NAME] took everything over in 2007 and 2008. That hard work included us taking court action ([COMPANY] proceedings) that is described in the Originating application. [NAME] has known of our hard work for a [NAME] time and we have had meetings with them to explain what we want. … I believe [NAME] and licences which [NAME] wants to grant to the [NAME], [NAME] and [NAME] will favour the grantees to the detriment of: (a) the self-determination, (b) local employment of members, (c) economic advancement of members, of the [NAME]. 99 This evidence informs an understanding of why [NAME] [NAME], her sister and [NAME] [NAME] who support them, have continued to object to [NAME]'s proposals, and have continued to insist that an [NAME] owned and run organisation should be in charge of how community infrastructure is maintained, and [COMPANY] provided. At a factual level, I am satisfied there was credible, serious and longstanding opposition to the impugned lease proposals. That opposition was based on a different perspective on how a community like [NAME] should sustain itself. 100 The [NAME] proposal had been pursued formally since 27 May 2013 when [NAME] sent a letter to [NAME], the [NAME] of [NAME]. In this letter, [NAME] explained that the reason for the [NAME] proposal was that the [NAME] sought to give expression to their [NAME] responsibilities towards [NAME] and to express their authority over the land. In this letter, Mr [NAME] stated that he represented the "[NAME]". At trial, counsel for the applicants accepted the evidence was unclear about the extent to which Mr [NAME] represented the individual [NAME], and whether he represented the "[NAME]" as a group. Suffice to say that the respondents accepted at trial that Mr [NAME] did represent some individual [NAME]. 101 On 25 July 2013, [NAME] met with members of the [NAME] and [NAME] of the [NAME] land, at the request of [NAME]. The topic of the meeting was the [NAME]'s application for a 99-year lease over [NAME]. The list of community members present was: Present: [NAME] ([NAME], [NAME] Community Council), [NAME] ([NAME], [NAME]), [NAME] ([NAME]), [NAME] ([NAME] Member), [NAME] ([NAME] Member), [NAME] ([NAME] Member), [NAME] ([NAME]), [NAME], [NAME], [NAME] ([NAME] Member), [NAME] ([NAME] [NAME]), [NAME], [NAME] ([NAME]), [NAME], [NAME], [NAME] ([NAME] Member), [NAME], [NAME] ([NAME] Member), [NAME] ([NAME] Member), [NAME] ([NAME]), [NAME]. 102 The document recording the meeting contained the following note. This is of relevance, given the applicants' arguments in this case about who needed to be present for the consent of [NAME] "as a group" to be given: Note: Prior to the meeting: • [NAME] gave his support for the proposed lease, to be conveyed to this meeting by [NAME] & others; and • [NAME] gave her support for the proposed lease, to be conveyed to this meeting by [NAME] & others. 103 The minutes record that [NAME] representative (Mr [COUNSEL]) listed a number of concerns [NAME] had about the ability of the [NAME] to manage the community through any lease arrangement. The points he made were:

1. How will [NAME] put in for Commonwealth/Federal Funding to run the community [COMPANY]? 2. Where will [NAME] get the funding for operational cost to run the community [COMPANY] similar to [NAME]? 3. Who will pay rent and how much? 4. Who will maintain and repairs the houses at [NAME]? 5. Will the TAO benefit from the rent money? 6. How will [NAME] run the service at [NAME]? 104 The minutes record [NAME] [NAME] addressing the meeting to answer these concerns. One of the statements she is recorded as making is the following: Explained to [NAME] and [NAME] [NAME] that we had put in for a lease under section 19(4A) of the [NAME] 1976, as we, the [NAME] of [NAME], want to show the government that we can be successful again in self-determination, in community control and for employment and living - just as we did before through [COMPANY]. 105 [NAME] explained that Mr [NAME] was the lawyer they had been working with for [NAME] years. It was not in dispute in this proceeding that [NAME] [NAME] was frequently at the forefront of the move to place control of the community in the hands of community members through a [NAME], currently [NAME]. 106 The minutes of the meeting state that: [NAME] present confirmed their support for the application by [NAME] for the 99 year lease of [NAME] – and all agreed for the lease to be granted. 107 On 8 October 2013, a letter was sent by a lawyer from [NAME], [NAME] [NAME] [NAME], to Mr [NAME] noting [NAME]'s view that at the meeting of 25 July 2013, "[NAME] was unable to gain instructions from [NAME] in respect of the Lease Application". 108 The evidence did not explain why, in the face of the minutes as I have set them out, [NAME] took this view. Matters appear then to not to have substantially progressed until some correspondence from Mr [NAME] in early 2014. 109 In January 2014, Mr [NAME] sent a letter to [NAME] noting that it appeared the [NAME] had reached an agreement with [NAME] in relation to the management of [NAME] [NAME]. Mr [NAME] sought an undertaking that [NAME] would not grant any estate or interest in [NAME] without prior notification to him (on behalf of his [NAME], who included [NAME] [NAME]). I note, as I have elsewhere, that in Mr [NAME] correspondence it was often unclear precisely on behalf of which [NAME] at [NAME] Mr [NAME] had instructions to act, aside from [NAME] [NAME]. It is clear he acted on behalf of [NAME] but which individuals within [NAME] were instructing him [NAME] than [NAME] [NAME] is also unclear. 110 [NAME] responded on 21 January 2014. In this letter, [NAME] reiterated its view that no instructions regarding the [NAME] lease proposal had been received following the 25 July 2013 meeting. [NAME] stated: Finally, we are particularly [NAME] by your assertion that [NAME] approved and consented to the grant of a lease to [NAME] at the 25 July 2013 meeting. This claim is incorrect and in our view disingenuous. 111 However, on 7 April 2014, [NAME] sent an email to Mr [NAME] saying that it proposed to hold a meeting in [NAME] on 16 April 2014, and that the meeting would consider [NAME]'s proposed lease, as well as the Commonwealth lease application in respect of community [NAME] and [NAME] application to lease infrastructure. There was no reference by [NAME] to the non-[NAME] [NAME], however it would appear that by at least April 2014, two sets of lease proposals had emerged (that is, the [NAME] proposal and the [NAME] proposal). 112 Further correspondence ensued, in which Mr [NAME] questioned the role of [NAME] in proactively approaching (as he suggested was the case) the [NAME] about these [NAME], and in which [NAME] noted the longstanding desire of the [NAME] to secure tenure over existing infrastructure in [NAME]. It is a feature of this proceeding that much time and cost and effort seems to have gone into correspondence but there is little evidence of the parties actually talking to one [NAME], and in particular there is little evidence of [NAME] being especially proactive in taking up face-to-face discussion with Mr [NAME], and (more centrally), with his [NAME]. 113 [NAME]'s scepticism about Mr [NAME] role, including the number of [NAME] views his correspondence could be said to represent, was evident in correspondence from [NAME] on 29 April 2014, after the community meeting in [NAME]. [NAME] informed Mr [NAME] and his [NAME] (at least, [NAME] and [NAME] [NAME]) that [NAME] at that meeting had instructed [NAME] to postpone decision-making on the non-[NAME] lease proposals until a decision was reached in respect of the [NAME] lease proposal. 114 Then, by a letter about a month later (on 26 May 2014), [NAME] informed Mr [NAME] and his [NAME] (at least, [NAME] and [NAME] [NAME]) that a meeting was held with the [NAME] who did not consent to the [NAME] lease proposal, expressing the concerns of what [NAME] described as the "non-consenting [NAME]". The concerns set out by [NAME] were as follows: The non-consenting [NAME] expressed initial concerns: • about whether [NAME] has [NAME] support for the Lease Proposal, particularly with respect to alternative [NAME] management, alternative local government service provision and funding. The non-consenting [NAME] request that approaches be made to the appropriate Commonwealth and NT Ministers as soon as possible to confirm their support. The relevant [NAME] further instruct that they will not consent to the Lease Proposal without this confirmation of support and assurances from Government in relation to funding. • that the decision-making structure proposed under the [NAME] would significantly alter the [NAME] manner in which decision-making in respect of land is exercised. The non-consenting [NAME] are particularly [NAME] that there is no guarantee under [NAME]'s Constitution that each of the [NAME] will be represented on the Tribal and Community Councils. They are also [NAME] that, even to the extent that [NAME]'s decision-making process is amended to ensure family representation, some individuals will necessarily be removed from direct involvement in decision-making. • about the lengthy term of the Proposed Lease, particularly given that [NAME] may be unhappy with the manner in which [NAME] administers the land the subject of the Proposed Lease. The non-consenting [NAME] request a review of the proposed term and the inclusion of a mechanism for terminating the Proposed Lease where certain thresholds are not met by [NAME]. • about the status of [NAME] in [NAME], and seek assurances in the Proposed Lease that [NAME] will not be asked to vacate their [NAME] premises. • with the legal fees that will be accrued by [NAME] is administering the Proposed Lease (and subleases). Non-consenting [NAME] request further details about the Schedule of Costs applicable. 115 [NAME] sought responses from Mr [NAME], on behalf of [NAME]. There is evidence [NAME] sent follow up correspondence in August 2014 and again in October 2014 trying to get a response to its concerns. It does not appear that any response was given. 116 And then, contrary to its attitude to this point, in a way which is really not explained in the evidence at all, on 7 October 2014, [NAME] [NAME] on behalf of [NAME] sent the following email to Mr [NAME]: …I confirm that [NAME] has now received instructions from [NAME] to consent to [NAME]'s lease application, subject to several amendments being made to the proposed lease. Could I trouble you to now forward an electronic draft of the lease (unlocked for editing), so that I can [NAME]-up the necessary amendments for your consideration. (Emphasis added.) 117 On 27 October 2014, an email was sent from [NAME] [NAME] to Mr [NAME] stating that the [NAME] lease would be put to the next [NAME] meeting on 9 December 2014 and that in the meantime, [NAME] [NAME] would send to Mr [NAME] her comments on the draft lease. 118 It appears that further differences then arose between [NAME] and the applicants as to the [NAME]' consent to the [NAME] proposal. The source and contents of those differences are not material to the present application, and are not in any event the subject of detailed evidence in this proceeding. On 17 December 2014, [NAME] [NAME] sent an email to [NAME] [NAME] and Mr [NAME] which, while noting that [NAME] accepted that the [NAME] at a meeting in October 2014 consented to the [NAME] proposed lease, subject to amendments, police had contacted [NAME] "with concerns that conflict has arisen in [NAME] over the past two months, and that this conflict relates to [NAME]." 119 More time passed. It was now more than 18 months after the first [NAME] lease proposal had been made. On 28 January 2015 [NAME] [NAME] informed Mr [NAME] by email that: …[NAME] intends to conduct community consultations to ensure that community members have the opportunity to express their views on [NAME]'s lease. Given reports we have received from police and community organizations with respect to conflict arising around [NAME]'s proposed management of [NAME] township, we consider it important that any such consultations are conducted in a neutral and non-threatening manner. 120 I set these matters out without making any findings whether persons (unknown on the evidence) at [NAME], through [NAME] [NAME], had a reasonable basis to imply, as this email did, that the conflict arose because of [NAME]'s "proposed management of [NAME] township". 121 On 6 February 2015, [NAME] [NAME] sent an email to Mr [NAME] noting that [NAME] conducted consultations with [NAME] in 2014 with respect to lease applications submitted by the [NAME]. She stated that: [NAME] received instructions from [NAME] to enter into that lease [that is, [NAME] lease]. However, before progressing these applications, I note that [NAME]'s whole-of-community Section 19 Lease presents a "competing claim" in respect to these lots.

Accordingly, could I trouble you to confirm whether [NAME] wishes to request a suspension to the progression of these [NAME], until such time as [NAME]'s lease proposal has been determined. 122 Mr [NAME] responded on the same day, apparently an hour later, according to the email time stamp. Mr [NAME] expressed "considerable concern", stating: My several [NAME], including [NAME] and [NAME], have repeatedly informed me that they have repeatedly refused to consent to the grant of any [NAME] being granted to the [NAME] over any land in [NAME]. My letter to [NAME] of 28/04/2014, copy attached, is particularly relevant in this regard; and there is [NAME] relevant communications, none of which suggest that any leasing proposals from the [NAME] are under consideration. In fact, in accordance with advice from my [NAME], by email of 07/10/2014 you confirmed that [NAME] had received instructions from [NAME] to consent to [NAME]'s lease application. You then advised that the consent was subject to several amendments being made to the proposed lease, details of which we are still awaiting, but it cannot be suggested that the exclusion of land by way of prior grants to the [NAME] amounts to an 'amendment' of the lease. Any interests to be granted to [NAME] would be granted by way of sub-[NAME] or licences by [NAME].

Accordingly, with respect to your query, I can (at least) confirm that [NAME] – and my [NAME] [NAME] – wish [NAME] not to proceed to grant any [NAME] or [NAME] interests in [NAME] to any person [NAME] than [NAME]. Could you please confirm that you will not be proceeding to process any applications for [NAME] or licences in [NAME] from the [NAME] or any [NAME] person, apart from [NAME]? Also, could you please provide details of the amendments you suggest be made to [NAME]'s proposed lease as a matter of some priority? 123 Based on the former position taken by [NAME] in its correspondence, the reaction of Mr [NAME] and his [NAME] is understandable. Nevertheless, despite apparently being in negotiation with [NAME], it appears that [NAME] also continued negotiations regarding the draft [NAME] lease. [NAME] [NAME] sent [NAME]'s comments on the [NAME] lease to Mr [NAME] on 13 February 2015, however her email also stated: [NAME] consented to [NAME]'s lease, subject to carving out three lots, which [NAME] wish to lease directly to the [NAME]… 124 It is unclear whether the three lots [NAME] [NAME] refers to are the lots eventually leased to [NAME] or [RESPONDENT], or whether they are [NAME] lots. It is also unclear by what kind of process [NAME] consent was given to this "carve out". 125 On 24 February 2015, Mr [NAME] then wrote to [NAME] [NAME], seeking to clarify his [NAME]' position. Mr [NAME] stated that he writes on the instructions of his [NAME], who he says are "the [NAME] of [NAME] and [NAME]". 126 Again, when Mr [NAME] uses the term "[NAME]", it is unclear precisely to whom he refers. [NAME] [NAME] was one such client, as Mr [NAME] refers to her by name in some of his correspondence. It is also clear that [NAME] was one of Mr [NAME] [NAME], because he also refers expressly to that corporation in correspondence by that descriptor. However, precisely how many [NAME] members of the [NAME], and how many [NAME] "[NAME]" of [NAME] land (as that term is used by the [NAME]) were, at the time of this correspondence, Mr [NAME] [NAME] could have been clarified but was not, in circumstances I will explain briefly. 127 There was an exhibit to Mr [NAME] first affidavit – [NAME] – which is entitled "confirmation of instructions to [NAME]", dated June 2014, and which does indicate who Mr [NAME] represented, including, for example, [NAME] and [NAME]. 128 [NAME] objected to large parts of Mr [NAME] affidavits, including a part where he exhibited [NAME]. I overruled this objection, for reasons I gave at the time, noting this material was no more than background and contextual material, which I considered necessary to understanding what occurred between the parties in 2016. However, [NAME] was one of many exhibits to Mr [NAME] affidavit that was ultimately not read. There was a great deal of additional correspondence and material initially sought to be tendered which counsel for the applicants then sought to reduce. It may be that in engaging in that process, which was entirely proper, [NAME] was excluded when it should not have been. 129 The lack of clarity around this evidence may be more of a matter of impression than critical to the disposition of the applicants' claims. That is because on any view [NAME] [NAME] and [NAME] [NAME[NAME], for whom Mr [NAME] clearly has acted continuously, were recognised as [NAME], whose lack of consent, or opposition, to the impugned [NAME] was communicated to [NAME]. 130 In his 24 February 2015 letter, Mr [NAME] stated: My [NAME] have confirmed that they have not consented to; a) any grant to the [NAME] (or anyone else) of [NAME] (or [NAME] interests) in respect of the sewerage treatment pond, the sewer pump station or the [COMPANY] at [NAME]; nor b) any grant of [NAME]-term residential rights in "[NAME] persons", based simply on prior occupation; nor c) any grant of [NAME] (or [NAME] interests) in the land held in trust by the [COMPANY] to any [NAME] entities. (Footnote omitted.) 131 Mr [NAME] went on in his letter to explain his [NAME]' understanding of a meeting in November 2014, where, Mr [NAME] says, some confusion arose as to the proposed [NAME] lease and the proposed [NAME] lease. Mr [NAME] summarised that: To the extent that you understood that my [NAME] did consent to the (direct) grant by the [NAME] of [NAME] [to] the [NAME], I advise that they no longer so consent and any such consent has been withdrawn and any instructions to [NAME] to enter such [NAME] has been withdrawn. 132 The remainder of the letter then dealt with the position of Mr [NAME] [NAME] and [NAME] in relation to the terms of the proposed [NAME] lease. 133 At the least, then, by 24 February 2015 [NAME] (certainly, those advising the Board and its committees, and communicating on their behalf), were on notice that within the [COMPANY] for [NAME] land there was opposition to the grant of the impugned [NAME], and some [NAME] did not consent to their grant. 134 On 5 May 2015, a letter was sent by Mr [NAME], the legal practice manager of [NAME], to Mr [NAME], responding to Mr [NAME] 24 February 2015 letter. Mr [NAME] indicated that [NAME]'s instructions following the meeting with [NAME] on 6 October 2014 were that the [NAME] agreed to grant: 1. a lease to the [NAME] over the [NAME] [COMPANY] (lot 88), and the sewage pumps and ponds (lots 95, 189 and 190) (the "[NAME]"); and 2. a lease over the remainder of [COMPANY] to [COMPANY] ([NAME]) ("ICN"), subject to amendment to: a. the [NAME] constitution, primarily to secure the representation of all [NAME] [NAME] owner family groups by including reserved positions in the Tribal council; and b. the proposed lease, principally to protect the informal tenancies of the [NAME] [NAME] [NAME] of [NAME], in accordance with the assurances made by [NAME] members at the meeting, and also to entrench decision-making provisions under the [NAME] constitution, and such [NAME] amendments as required. 135 It is unclear on the evidence to what meeting this correspondence refers. [NAME] [NAME] earlier correspondence to Mr [NAME] in October and December 2014 and February 2015 dealt with a meeting of [NAME] prior to 7 October 2014 and it appears this is the meeting to which Mr [NAME] refers. 136 Thus, as at February 2015, aside from the [COMPANY] and the sewerage infrastructure, [NAME] was suggesting to the applicants, through Mr [NAME], that the lease to [NAME] had been approved by [NAME] on 6 October 2014. 137 Mr [NAME] then stated in the letter that: …several [NAME] members are of the view that such instructions were not given, or were not understood by the meeting, and they expressed this view to our Executive meeting on 18 March 2015. We also note your advice that even if given, such consent is now withdrawn by those individual [NAME] which you represent. 138 It is not clear who these "[NAME] members" were, although counsel for the applicants at trial submitted that this included, at least, [NAME] [NAME] and [NAME] [NAME[NAME], the [NAME] respectively. In [NAME] words, [NAME] was identifying that some [NAME] had changed their minds between October 2014 and March 2015, including Mr [NAME] [NAME]. 139 [NAME] [NAME] own evidence is not consistent with the proposition that she and her sister were members of the Tribal Council. According to her affidavit of 7 April 2017, she and [NAME] [NAME[NAME] were not members of the Tribal Council, they were only members of the "Community Council". On her evidence, the Tribal Council consisted of [NAME]. [NAME] [NAME] appeared to accept she was not a "senior" [NAME]. As at 7 April 2017, on [NAME] [NAME] evidence, the Tribal Council comprised: [NAME] [NAME[NAME] [NAME] [NAME] [NAME] [NAME[NAME] [NAME] ([NAME]) [NAME] [NAME] ([NAME]) 140 [NAME] was not a member of the Tribal Council, but as a senior [NAME], [NAME] [NAME] deposed he was to be invited to meetings. 141 Mr [NAME] also acknowledged Mr [NAME] indication that even if consent had been given, it was now withdrawn by Mr [NAME] [NAME], although as the text of the letter demonstrates, consent was withdrawn in relation to [NAME] [NAME], not [NAME] to [NAME]. Nevertheless, Mr [NAME] stated that [NAME] would not act on the purported instructions received in October 2014, but would seek further instructions. 142 Mr [NAME] then set out his responses to various allegations in Mr [NAME] letter of 24 February 2015. Relevantly, Mr [NAME] indicated that [NAME] did not accept that the [NAME] of [NAME] "as a group" had adopted the decision-making processes of the [NAME]. Mr [NAME] indicated [NAME]'s view that "at times throughout this process, there has been significant resistance among [NAME] to the [NAME] lease application." Mr [NAME] stated that: To be frank, your inability to acknowledge this suggests to us you are taking instructions from a very narrow group of [NAME], which is then represented as the comprehensive view of the group. 143 Given the composition of the [NAME], it seems to me that is a difficult proposition for Mr [NAME] to sustain. Mr [NAME] was not cross-examined at all. It was never put to him or any [NAME] witness (such as [NAME] [NAME]) that the members of the [NAME] did not give Mr [NAME] the instructions he set out in this correspondence. 144 Nevertheless, Mr [NAME] requested that Mr [NAME] identify the particular [NAME] whom he represented. It does not appear from the evidence that Mr [NAME] ever responded to that request. 145 It appears that support for the [NAME] lease by at least one [NAME] did change over time. That can be found as a fact to be the situation with Mr [NAME]. As I have noted, his evidence was that he remained a member of the [NAME]. He was identified by [NAME], in a signed petition dated July 2013 annexed to Mr [NAME] first affidavit, as having given consent to the [NAME] lease and there was no cross-examination of Mr [NAME], nor any submissions, to suggest this did not reflect the facts at the time Mr [NAME] made those statements. In his affidavit in this proceeding, Mr [NAME] deposed that he changed his mind about the [NAME] lease. He was not cross-examined about this, nor did he give any details of when he changed his mind or why, save to say in his affidavit that: In the early days of [NAME], me and [NAME] members of my family had been supporters of [NAME], but later I believed that [NAME[NAME] and [NAME[NAME] were not listening to the [NAME] and what they wanted. 146 There is then something of a gap in the chronology, and I accept counsel for the applicants' submission that discussions about the [NAME] lease, and the impugned lease proposals, were suspended for some time, or at least that no further material negotiations or events occurred. 147 By the middle of 2016, the lease proposals seem to have been revived. In June, July and September 2016 a series of meetings occurred, culminating in the key meeting on 12 October 2016 at the [COMPANY] in [NAME]. The three earlier meetings were conducted by [NAME] as "information meetings" about the competing lease proposals. Not everyone who attended the October 2016 meeting had attended the [NAME] meetings, and not everyone who had attended earlier meetings was at the October 2016 meeting. This statement applies both to [NAME] and also to [NAME]. For example, [NAME] [NAME], [NAME] anthropologist, was at the October meeting but not the September one. [NAME], a [NAME] and a member of the [NAME], was at the September 2016 meeting but did not attend the October 2016 one. 148 What happened at the 12 October 2016 meeting was the subject of considerable evidence. Some of the debates about what occurred, and some of the details about who said what, are ultimately not material to the findings the Court must make. Where detailed findings need to be made about who said what, or who did what, I make those findings at [267]-[279] below. It suffices here to give a general description of what occurred. 149 The meeting was referred to by [NAME] in its notices and minutes as a "consultation meeting", in contrast to the earlier ones which were described as "information meetings". It was attended by a number of key [NAME] employees, including Mr [NAME] and [NAME] [NAME]. [NAME] [NAME] evidence was that the meeting was attended by a number of [NAME] including [NAME] [NAME] herself, [NAME] [NAME[NAME], [NAME], [NAME], [NAME] (former [NAME] of the [NAME]), [NAME], [NAME], [NAME] and Mr [NAME]. According to [NAME] [NAME], a number of these individuals are among the most [NAME] (namely Mr [NAME], Mr [NAME] and Mr [NAME]). [NAME] [NAME] evidence indicates she believed there were 19 [NAME] who attended the meeting who fell into the category of "[NAME]", although [NAME] [NAME] includes in this number members of the [NAME] family, about whom there is at least some degree of debate in terms of their status as [NAME]: see [192]-[193] below. 150 No [NAME] were in attendance. 151 [NAME] who were not at the 12 October 2016 meeting were [NAME] [NAME] and Mr [NAME]. Both these individuals were identified as "[NAME]" and [NAME] was also a member of the [NAME]. [NAME] was not a member of the Tribal Council, as a senior [NAME], [NAME] [NAME] deposes (and I accept) that he is to be invited to their meetings. Their absence is one of the matters [NAME] [NAME] made a point of at the meeting, and also one of the matters the applicants rely on to challenge [NAME]'s formation of satisfaction that [NAME] "as a group" consented to the grant of the impugned [NAME]. 152 It is agreed between the applicants and [NAME] that, according to "[NAME]" (or [NAME] [NAME] law), Mr [NAME] is the senior "[NAME]" for [NAME] land. It is also agreed that [NAME] [NAME] is an "[NAME]" for [NAME] land, however the applicants claim that [NAME] [NAME] is the [NAME], a claim disputed by [NAME], including by [NAME] [NAME]. In English usage, "[NAME]" roughly translates to "manager" while "[NAME]" roughly translates to "owner", although both the applicants and [NAME] agree that the English translations are only approximate. [NAME] [NAME] gave evidence, which I accept, that together, the [NAME] and the [NAME] have primary responsibility for looking after the [NAME] land and authorising what occurs on that land. There are some differences in the evidence as to how the [NAME] and the [NAME] make decisions, particularly as to the extent to which the [NAME] and the senior [NAME] are required to be consulted for decision-making, and the role of [NAME] men and [NAME]. The applicants and [NAME] agree Mr [NAME] consent as the senior [NAME] was required for [NAME] decision-making, however the parties disagree as to whether [NAME] [NAME] consent was required. [NAME] [NAME] affidavit evidence was: [NAME] is the [COMPANY] key senior [NAME] for matters affecting [NAME]. His [NAME] was [NAME] and he has acquired the relevant cultural knowledge to hold this position since his older brother passed away some years ago. There are a number of [NAME] members of the [COMPANY] who hold [NAME] positions. Of the same [NAME], [NAME] also holds a [NAME] connection to [NAME] brother. There are also a large number of [NAME] in the next [NAME], including [NAME] and [NAME[NAME]. The [NAME] decision-making process for these [NAME] in matters affecting country is primarily one of consultation amongst the [NAME] men. There is no requirement that all [NAME] men must be consulted. There is no requirement that all [NAME] men must be present at the same time. This is not to say that it is only the senior men who make the decision. There are [NAME] who are [NAME]. However, no decision can be made if the senior men are not involved. There is no requirement for unanimity, but usually a consensus is arrived at for a decision to be made. … In my twelve years experience with [COMPANY] decision making processes, I have not been told by members of the groups that [NAME] is regarded as a key [NAME] member of the group, or the senior one since the passing of the key senior [NAME]-atweye [NAME] in 2010, I have been told by members of the group that [NAME] and [NAME] are now key [NAME]. … As stated above, [NAME] is an [NAME] for [COMPANY] which includes [NAME] land, but she is not the [NAME]. (Emphasis in original.) 153 It was at this meeting that [NAME] contends the [NAME] made a decision consenting, as a group, to [NAME] directing the [NAME] to grant [NAME] to [NAME], the Council, the [NAME] and the [RESPONDENT]. [NAME] relies on the evidence of Mr [NAME], Mr [NAME] and [NAME] [NAME], all of whom were called as witnesses in this proceeding. 154 There are no minutes of this meeting, nor of the three before it. In evidence were documents handed out by [NAME] at the meeting. Mr [NAME] file note of the September and October 2016 meetings and [NAME] [NAME] memorandum to Mr [NAME] after the October 2016 meeting are in evidence. There is also the summary prepared for the [NAME] by, it appears, Mr [NAME]. The applicants sought to tender a transcript of the meeting, prepared from a recording of it made by [NAME] [NAME], then transcribed by Mr [NAME]. They also sought to tender the recording itself. Ultimately the respondents did not object to the tender of the transcript. In light of that position, I rejected the tender of the recording under s 135 of the Evidence Act 1995 (Cth). 155 It is not clear from the evidence when the proposed [NAME] and licence to entities [NAME] than [NAME] (namely, the Council, [NAME] and [RESPONDENT]) emerged. It appears that at some stage prior to the [COMPANY] meeting, the proposed [NAME] expanded from only those [NAME] to the [NAME], to [NAME] and a licence including these three additional entities. 156 The applicants contend that Mr [NAME] and [NAME] [NAME] were required to be present at any meeting in which decisions about interest in the [NAME] land were to be made. [NAME] contends that Mr [NAME], who is an [NAME] (but not a [NAME]), had received the consent of both Mr [NAME] and [NAME] [NAME], and provided their consent in the meeting on their behalf. Mr [NAME] also indicated at the meeting that he had spoken to Mr [NAME] and that Mr [NAME] had conveyed to him that he would agree with any decision made at the [COMPANY] meeting. The applicants dispute this, and [NAME] [NAME] made it known at the meeting that she thought Mr [NAME] and [NAME] [APPELLANT] were required to be at the meeting. At trial, the applicants adduced evidence from both Mr [NAME] and [NAME] [NAME] who claim they did not provide their consent to Mr [NAME]. I return to this later in these reasons. 157 Following the [COMPANY] meeting, reports were prepared for the [NAME]. These reports were prepared by Mr [NAME] and [NAME] [NAME], [NAME] [NAME] lawyer who was not present at the [COMPANY] meeting. In summary, the papers advised [NAME] that [NAME] had consulted with [NAME] and that consent was given by them to each of the proposed grants. The nature and extent of these reports is material to this proceeding, and indeed, my reasoning turns on what these reports say, and what they do not, as well as the findings I make about what happened at the meeting of the [NAME]. It is therefore necessary to deal with these matters in some detail, and I do this below at [311]-[332]. 158 At its meeting on 19 October 2016, the [NAME] gave a direction to the [NAME] pursuant to s 19(5) of the [NAME] to enter into the impugned [NAME]. [NAME] was not the only community about which the [NAME] made decisions that day directing the disposition of interests in community land. [NAME] gave directions to a number of [NAME] [NAME] as well. 159 [NAME] also gave a direction to the [NAME] of [NAME] to affix the common seal of the [NAME] to each of those documents. 160 On the same day, 19 October 2016, [NAME], an employee of [NAME] (but not a member of its Board or of [NAME]) affixed the common seals of both [NAME] and the [NAME] to [NAME] and licence. 161 Subsequently, several weeks' later on 11 November 2016, members of the [NAME] each completed a written authorisation for the affixing of the [NAME]'s common seal to those [NAME] and licence. The proposed [NAME] and licence were then given to [NAME], Council, [NAME] and [RESPONDENT]. The [NAME] executed their respective agreements and delivered them to [NAME], however neither [NAME] nor [RESPONDENT] ever executed their respective agreements. 162 This proceeding was then commenced by the applicants, with an ex parte interlocutory application filed on 23 November 2016 for orders suspending the operation of [NAME]'s directions to the [NAME]. That ex parte application was resolved without a hearing, and the proceeding was then regularly issued, with the undertakings to which I have referred at [44] above preserving the status quo pending the Court's decision.

The grounds of review and the competing arguments 163 I approach the grounds of review without distinguishing between the two sources of jurisdiction invoked by the applicants. The nature of the errors alleged under both jurisdictions is essentially the same. Any differences between the two sources of jurisdiction arise principally in relation to the relief which may be available.

Ground 1: [NAME]'s satisfaction of consent of [NAME] 164 Ground 1 is expressed as follows: The Applicants contend that the [NAME] did not lawfully form a state of satisfaction under section 19(5)(a) of the ALRA that the [NAME] of the [NAME] understood the nature and purpose of each of the proposed grants and, as a group, consented to them, and thereby [NAME] each involved an error of law of one or more of the kinds described in section 5(1)(b), (d), (e), (f) and (g) of the ADJR Act, or were otherwise contrary to law within the meaning of section 5(1)(j) of the ADJR Act, or were otherwise affected by jurisdictional error so as to attract the jurisdiction of the Court under section 39B(1A)(c) of the Judiciary Act. Particulars i. The [NAME] was required to, but did not, lawfully consider and identify who the [NAME] of the [NAME] were before making [NAME]. ii. The [NAME] was required to, but did not, lawfully consider and identify what process of decision-making was applicable in determining whether or not the [NAME] of the [NAME] "as a group" consented to the proposed grants before making [NAME]. iii. The [NAME] was required to, but did not, lawfully consider and identify what (if any) process of decision-making was in fact adopted by the [NAME] of the [NAME] with respect to whether or not to consent to the proposed grants before making [NAME]. iv. Further or alternatively, insofar as the [NAME] did purport to consider the matters identified in particulars i to iii above, it did so in accordance with a process that effectively but unlawfully delegated that process of consideration to a [NAME] (or officers) who conducted a meeting (or meetings) with some [NAME] (including a meeting at the [COMPANY] in [NAME] in [NAME] on 12 October 2016) but who was (or were not) a member (or members) of [NAME] 165 The applicants characterise [NAME]'s satisfaction about the consent of [NAME] as a group as a precondition to a valid direction under s 19(5). 166 The applicants do not challenge the delegation of the decision-making function under s 19(5) of the [NAME] by [NAME] Board to the [NAME]. However, the applicants submit that some level of fact finding about [NAME] consent had to be done by the [NAME] itself. Information needed to be accurately conveyed to [NAME], and it had to be given enough information to form the requisite state of satisfaction for itself. The applicants accept there is nothing legally impermissible with a summary being conveyed to a decision-maker, so [NAME] as it is accurate and complete. By analogy with ministerial decision-making, the applicants accept that a "brief" or "briefing note" could be prepared for the [NAME], but that "brief" must have the characteristics of accuracy, detail and completeness for which the applicants contend. 167 The applicants submit that in order for [NAME] lawfully to form a positive state of satisfaction in the present circumstances, the [NAME] was required to at least identify who the [NAME] were, and to consider the process by which their consent was obtained. The applicants submit this did not occur. 168 Grounds 1 and 2 contend that [NAME] could not form the requisite state of satisfaction for two distinct reasons. Under ground 1, that is because [NAME] did not have the information it required: who the [NAME] were, which of them were at the October 2016 meeting, what the decision-making process was, and what views were expressed. In contrast, ground 2 (reproduced at [176] below) appears to challenge the absence of any probative basis on which the decision could have been made, even if the [NAME] attempted to do so. It would appear that the [NAME] ground expresses a consequence of the situation on which the first ground is premised. 169 [NAME] submits that, provided the material before the decision-maker (here, the [NAME]) rose above a "mere assertion of a conclusion of satisfaction", then there was enough material on which [NAME] could form a state of satisfaction. Expressly by s 27(1)(b), a Land Council (and its delegate) was entitled to obtain advice and assistance from persons who are "expert in any matter with which the Council is [NAME]". The [NAME] was entitled to rely on the advice of [NAME] [RESPONDENT], and of Mr [RESPONDENT] as one of [NAME]'s [RESPONDENT]. 170 [NAME] relies on the decision of [RESPONDENT] in [NAME] v [COMPANY] and [RESPONDENT] Affairs [2014] FCA 25; 220 FCR 202. It submits that in [NAME], the Court held that the Land Council having made an express statement to the Minister of its satisfaction under s 23(3), in terms which involved more than "mere assertion", it was open to the Minister to act on the statement, and to similarly be so satisfied, under s 27(4) of the [NAME]. 171 [NAME] says that on the facts, the Court can be satisfied the material was circulated before the meeting and that it can be inferred that the [NAME] had an opportunity to read the papers, including Mr [NAME] report. It submits the [NAME] meeting paper contained more than the applicants have suggested. The circulation of the papers beforehand is said to meet the applicants' submissions about what inferences can be drawn from the Minutes of the meeting in terms of how the decision-making proceeded. 172 [NAME] says the paper circulated by [NAME] [NAME] was sufficient in itself, and contends that the contents of that paper are more substantive than the applicants alleges. In the alternative, [NAME] submits the information in the paper from Mr [NAME], also circulated to [NAME], contained more than sufficient information on which [NAME] could form the requisite state of satisfaction.

Ground 2: lack of evidence to form satisfaction of consent of [NAME] 173 Ground 2 is expressed as follows: Further or alternatively, the Applicants contend that the [NAME]'s purported state of satisfaction that the [NAME] of the [NAME] understood the nature and purpose of each of the proposed grants and, as a group, consented to them was not open on the information before it, and thereby [NAME] each involved an error of law of one or more of the kinds described in section 5(1)(b), (d), (e), (f) and (g) of the ADJR Act, or were otherwise contrary to law within the meaning of section 5(1)(j) of the ADJR Act, or were otherwise affected by jurisdictional error so as to attract the jurisdiction of the Court under section 39B(1A)(c) of the Judiciary Act. Particulars i. The [NAME] had before it information to the effect that, prior to a meeting conducted at the [COMPANY] on 12 October 2016, no decision had been made by the [NAME] of the [NAME] to consent to the grants. ii. The [NAME] had before it information to the effect that only some of the [NAME] of the [NAME] were present at the [COMPANY] meeting. iii. The [NAME] had no information before it to the effect that the [NAME] of the [NAME] who were absent from the [COMPANY] meeting consented, "as a group" together with the [NAME] who were present at the [COMPANY] meeting, to the grants. 174 As I have noted, ground 2 appears to identify a consequence of what is alleged in ground 1. In [NAME] words, the fact (on the applicants' case) that the [NAME] did not have the necessary material before it, meant that it lacked any sufficient probative evidence on which to form the necessary state of satisfaction before it could lawfully give the direction. 175 In particular this ground appears to focus on the information available to the [NAME], from the reports to it by Mr [NAME], that there was opposition from some [NAME] to the impugned lease proposals, and that some key [NAME] were not present at the 12 October 2016 meeting. 176 [NAME] responds to this ground with the submission that legal satisfaction under the [NAME] does not require unanimity of all [NAME], because the statute focuses on consent given "as a group". [NAME] submits s 19(5) should be construed taking into account that by its composition, expertise and functions, a Land Council is a specialised and representative body, which is well suited to assessing whether there is consent of [NAME] "as a group". It further submits that there may be legitimate differences of opinion as to what approaches might be taken, but since the legal criterion is satisfaction, not objective existence, within the bounds of what is a legally reasonable, fair and rational approach, it is a matter for the Land Council to determine consent "as a group".

Ground 3: denial of procedural fairness 177 Ground 3 is expressed as follows: Further or alternatively, the Applicants contend that a breach of the rules of natural justice occurred in connection with the making of [NAME] within the meaning of section 5(1)(a) of the ADJR Act, [NAME] each involved an error of the kind described in section 5(1)(d) of the ADJR Act, and [NAME] were also affected by jurisdictional error so as to attract the jurisdiction of the Court under section 39B(1A)(c) of the Judiciary Act. Particulars i. As noted above, the [COMPANY] meeting was conducted by a [NAME] (or officers) who were not members of [NAME]. ii. Following the [COMPANY] meeting, [NAME] [NAME] prepared an "Information Paper" for consideration by [NAME]. iii. Insofar as the "Information Paper" advised the [NAME] that, at the [COMPANY] meeting, [NAME] consented to the proposed grants, that advice was inaccurate or misleading. iv. At least some [NAME] who were present at the [COMPANY] meeting indicated that they did not consent to the proposed grants. [NAME] who were present at the [COMPANY] meeting made claims about what the applicable [NAME] decision-making process was, and in particular made claims to the effect that certain [NAME] [NAME] (who were not present at the meeting) needed to be present at any meeting at which a decision to consent to the grants was to be made, and need to be involved in the decision-making process. [NAME] [NAME] who were present at the [COMPANY] meeting gave no indication that they consented to the proposed grants. [NAME] [NAME] were absent from the [COMPANY] meeting, and did not otherwise indicate their consent (singly or as part of a "group") to the proposed grants. v.

Accordingly, the process by which the [NAME] sought to "hear" from the [NAME] of the [NAME], for the purpose of forming a state of satisfaction as to whether the [NAME] as a group consented to the groups, miscarried. The responses (or non-responses) provided by various [NAME] to the proposed grants in accordance with the hearing process established by [NAME] or the [NAME] were not accurately or comprehensively conveyed to the decision-maker vested with the function of forming the requisite state of satisfaction. 178 The applicants submit procedural fairness is owed to each individual person who falls within the terms of s 71(1), and has the rights conferred by that provision. That is because any direction to grant an interest in [NAME] land affects not only the rights of all persons who enjoy those rights under s 71(1), but also affects their interests in that land. The fact that an individual holds an interest in land in common with [NAME] persons identified as [NAME] of the same land does not mean the individual's legal interests in that land are not affected by a direction which results in the creation of a new and separate legal interest in that land in a third party. To the contrary, the applicants submit they clearly are. 179 [NAME] made a submission, somewhat faintly, that s 19(5) may not be conditioned with any obligations of procedural fairness at all. For the reasons I set out at [378]-[379] below, I doubt that is correct, but it need not be finally determined in this proceeding because of the view I have taken on the applicants' ground 3, even on the premises most favourable to them. 180 More particularly, [NAME] denies that s 19(5) is conditioned by any obligation of procedural fairness to individual [NAME]. It submits the [NAME] is [NAME] with group or communal rights and interest, and group or communal title to land. While it accepts that the rights conferred by s 71(1) are also conferred on [NAME] as individuals, it submits this does not necessarily mean that there are individual procedural fairness entitlements in relation to decision-making under s 19 of the [NAME]. Further, it submits that in the circumstances, the impugned [NAME] had no legal effect on the s 71(1) rights (or interests) of [NAME] of [NAME] land: the land was occupied in any event, and had previously been used for the purposes for which it would be used under the impugned [NAME]. In [NAME] words, [NAME] submits in a practical sense there was no alteration to, or diminution in, the interests held by individual [NAME] in [NAME] land the subject of the impugned [NAME]: the land simply continued to be used in the way it was currently being used. 181 As [NAME] points out in its written submissions, the applicants' argument is that the briefing papers did not mention those who dissented at the meeting and those who were absent from the meeting but who held senior positions in the group. The way this is put as a denial of procedural fairness is that the applicants submit there has been a "split" of the hearing and decision-making function between Mr [NAME] and the [NAME]. In substance, the applicants submit Mr [NAME] was given the hearing function at the 12 October 2016 meeting. However, having conducted the "hearing", he did not convey all of the material information back to the [NAME] because he did not inform [NAME] about those who dissented (and why they dissented), nor about those senior [NAME] who were absent. Instead, Mr [NAME] referred to some [NAME] abstaining from the vote, which the applicants submit was an incorrect and self-serving description of what had occurred. The "split" of the hearing and decision-making, where the outcome of the hearing is not accurately conveyed to the decision-maker, constitutes a denial of procedural fairness on the applicants' contentions. The applicants rely for this aspect of their argument on [NAME] v [NAME] Board [1967] 1 AC 551.

Ground 4: non-provision of the actual [NAME] 182 Ground 4 is expressed as follows: Further or alternatively, the Applicants contend that a breach of the rules of natural justice occurred in connection with the making of [NAME] within the meaning of section 5(1)(a) of the ADJR Act, and were also affected by jurisdictional error so as to attract the jurisdiction of the Court under section 39B(1A)(c) of the Judiciary Act, and/or that [NAME] or [NAME] otherwise constructively failed to exercise its jurisdiction so as to attract the jurisdiction of the Court under section 39B(1A)(c). Particulars i. [NAME] or [NAME] was required to, but did not, provide a copy of the draft Instruments to the [NAME] of the [NAME] before it made [NAME]. ii. [NAME] or [NAME] did not give the [NAME] all of the information in the Instruments before it made [NAME]. iii.

Accordingly, there was a breach of the rules of natural justice. iv. Further or alternatively, in these circumstances, it was not open to the [NAME] to be satisfied that the [NAME] had, as a group, consented to the proposed grants. 183 This is a confined ground. The parties agree the impugned [NAME] and licence themselves were not provided to the [NAME] at the meeting. The debate on this ground concerns the level of information [NAME] was required to provide. The applicants rely in part on [NAME] distinction in [NAME] (at [72], [91]-[95]) between what is required to discharge a procedural fairness obligation in relation to an obligation to "consult" and what is required where the consent of [NAME] is required. The applicants also contend on the evidence that there was an express request, through Mr [NAME], to see [NAME] and licence themselves, and that [NAME] [NAME] also asked at the meeting to see [NAME] and licence. 184 Aside from submitting that the evidence discloses the [NAME] were, as a matter of substance, given sufficient information about [NAME] and licence (through the handouts prepared by [NAME]), [NAME] also submits that the applicants' contentions on this ground sit uncomfortably with the concept of procedural fairness, which concerns the disclosure of adverse information a decision-maker may take into account.

Ground 5: failure to consider the identity of the [NAME] and their decision-making processes 185 Ground 5 is expressed as follows: Further or alternatively, the Applicants contend that, in purporting to be satisfied that the [NAME] of the [NAME] understood the nature and purpose of the proposed grants and as a group consented to them, the [NAME] failed to have regard to relevant evidence and thereby [NAME] each involved an error of law of one or more of the kinds described in sections 5(1)(d), (e) or (f) of the ADJR Act, or were otherwise contrary to law within the meaning of section 5(1)(j) of the ADJR Act, or were otherwise affected by jurisdictional error so as to attract the jurisdiction of the Court under section 39B(1A)(c) of the Judiciary Act. Particulars i. At the time [NAME] were made, [NAME] possessed records relating to the identity of the [NAME] of the [NAME] and their decision-making processes, including in particular [NAME] file 2013-5018, and also [NAME] files 2014-394, 2013-326 and 2006-479 (the Existing Material). ii. [NAME] considered that the Existing Material showed that issues relating to the identity of the [NAME] of the [NAME] were "extremely complex". iii. Neither the Existing Material, nor even a synthesis or summary of the Executive Material, was before the [NAME] when it purported to make [NAME]. iv. The Existing Material was relevant to whether the [NAME] could be satisfied, on the [NAME] material before it, that the [NAME] of the [NAME] understood the nature and purpose of the proposed grants, in particular because it was relevant to the identity of the [NAME] and their decision-making processes. v. In the circumstances, and having regard to the framework of the ALRA: A. the failure of the [NAME] to have regard to the Existing Material involved a constructive failure to exercise the [NAME]'s jurisdiction; and B. further or alternatively, it was legally unreasonable for the [NAME] not to have regard to the Existing Material. 186 This ground is couched, as can be seen, as a failure to consider relevant material. The applicants submit that by s 19(5), [NAME] consent as a group is made a relevant consideration by the statute. Therefore, in assessing that consideration, the applicants submit a Land Council must look at the three matters identified by this consideration: who are the [NAME], what decision-making process was adopted and what are the "raw facts" about how a decision was made, the term "raw facts" being counsel for the applicants' description. 187 For [NAME], [NAME] accepted in oral submissions that this ground stands or falls with [NAME]'s submission about the way satisfaction can be formed under s 19(5). If [NAME] is correct that it is able to have its officers (and expert [NAME]) synthesise and summarise the outcome of a meeting and advise the [NAME] whether consent as a group was given, then the applicants' ground 5 must also fail. He accepted the contrary is also true.

Ground 6: brief to Mr [NAME] 188 Ground 6 is expressed as follows: Further or alternatively, the Applicants contend that it was legally unreasonable for the [NAME] to make [NAME] without awaiting the provision of a report by an anthropologist engaged by [NAME] to advise in relation to the identify [sic] the [NAME] of the [NAME] and their decision-making processes, and thereby [NAME] each involved an error of law of one or more of the kinds described in sections 5(1)(d), (e) or (f) of the ADJR Act, or were otherwise contrary to law within the meaning of section 5(1)(j) of the ADJR Act, or were otherwise affected by jurisdictional error so as to attract the jurisdiction of the Court under section 39B(1A)(c) of the Judiciary Act. Particulars i. Before making of [NAME], [NAME] decided to engage an anthropologist, [NAME], to inquiry into and advise it in relation to the [NAME] of the [NAME] and their decision-making processes. ii. On or about 24 October 2016 (5 days after [NAME] purported to make [NAME]), [NAME] briefed an anthropologist [NAME] to (inter alia): A. "[c]onduct anthropological research and provide a report detailing the [NAME] ownership of [[NAME]]"; [NAME]. "review the [NAME] ownership of the [[NAME]] and to provide clear and concise advice on who is a [NAME] of the [COMPANY] as per the statutory definition in the [ALRA]"; [NAME]. specifically, advise on "whether a specific family group [the [NAME] and [NAME] [NAME]] are [NAME] of the [[NAME]]"; [NAME]. advise as to "the content and accuracy of anthropological references, particularly in relation to definitions, assertions and application of [NAME] ownership or the exercise and nature of [NAME] [NAME] decision-making (among [NAME] matters) that occur in the various documentation prepared on behalf of [[NAME]]"; and [NAME]. provide a report to [NAME] including, inter alia: (i) "[a]n explanation of the [NAME] land tenure system(s) in the area with reference to relevant sacred sites and dreamings"; (ii) "[i]dentification of [NAME] groups affiliated with the area and the nature of that group affiliation, with reference to sites, dreaming tracks, and [NAME] [NAME]"; "updated genealogies and/or lists of the relevant native title custodians"; and (iii) "[a]n anthropological analysis (if considered appropriate upon review) of the material produced by [[NAME]] concerning decision-making and land interests at [NAME]". iii. [NAME] required Mr [NAME] to produce his report within 15 days. iv. As part of the brief to Mr [NAME], [NAME] provided or made available the Existing Material. v. By implication, [NAME] briefed Mr [NAME] to conduct the research, and provide the advice and report described above, because it was uncertain of the reliability of the Existing Material (whether as to the accuracy or comprehensiveness) in relation to the identity of the [NAME] of the [NAME] and their decision-making processes. vi. [NAME], if lawfully made, would require the [NAME] to grant interests in [NAME] (including exclusive [NAME] of up to 40 years duration) to [NAME]. vii. In the circumstances, and having regard to the framework of the ALRA, it was legally unreasonable for the [NAME] to exercise its power to make [NAME] where an obvious inquiry about a critical fact or facts (including the identity of the [NAME]) had not yet been completed. 189 The applicants maintain, and it is not disputed on the facts as I understand it, that Mr [NAME] had been retained by [NAME] to undertake an inquiry into membership of the [NAME] group for [NAME]. A major reason for this was the ongoing question over the status of the [NAME] in [NAME]. The evidence discloses that at the 12 October 2016 meeting, Mr [NAME] did refer to [NAME] having engaged Mr [NAME] to undertake a review of [NAME] ownership at [NAME], but without any further details. 190 The brief to Mr [NAME] identified a retainer to inquire into the status of the [NAME] in [NAME] and a broader strand. The broader strand [NAME] the question of who were the [NAME] and who was able to make decisions for country, including some of the matters [NAME] [NAME] had raised on an ongoing basis about [NAME] decision-making for [NAME] land. Mr [NAME] brief relevantly required him to provide advice on the following: The project is to review the [NAME] ownership of the [COMPANY] and to provide clear and concise advice on who is a [NAME] of the [COMPANY] as per the statutory definition in [NAME] (NT) 1976. Advice is required on whether a specific family group are [NAME] of the [COMPANY] area or whether they possess any [NAME] rights (not amounting to [NAME] ownership as defined in the [NAME]), and the reasons for that assessment. This advice will be required in relation to the [NAME] and [NAME] [NAME] and their occupation of an area of the [COMPANY] known as the "[NAME]" and will require an assessment of the basis of their occupation and any entitlement they may have according to [NAME] [NAME] decision-making for their continuing occupation of that land. Advice is also required in regard to the content and accuracy of anthropological references, particularly in relation to definitions, assertions and application of [NAME] ownership or the exercise and nature of [NAME] [NAME] decision-making (among [NAME] matters) that occur in the various documentation prepared on behalf of the [COMPANY] ([NAME]), a [NAME] that has made wide-ranging and controversial assertions concerning the exercise of [NAME] [NAME] rights and interests apparently "gifted" to [NAME] by its members. The briefing information provided outline the history of these matters and attempts by the staff of the Central Land Council to address these matters. An independent consultant's report is required by the Central Land Council in order that the findings may be considered and appropriate action taken to address matters arising. The situation is extremely complex and will require very sensitive treatment by the consultant. 191 As part of this brief, Mr [NAME] was required to complete a report to [NAME]'s anthropology section, which included, among [NAME] matters: … • Identification of [NAME] groups affiliated with the area and the nature of that group affiliation, with reference to sites, dreaming tracks and [NAME] [NAME]. Where the previous information on [NAME] ownership is updated by field work, updated genealogies and/or lists of the relevant native title and custodians should be provided, ideally by groups. • Identification of those [NAME] who [NAME] assert are not [NAME], and the reasons why they are not under their traditions; • An anthropological analysis (if considered appropriate upon review) of the material produced by the [COMPANY] ([NAME]) concerning decision-making and land interests at the [NAME]; … 192 The applicants contend that [NAME]'s conduct in moving to decide whether it was satisfied under s 19(5) without waiting for Mr [NAME] report, in circumstances where [NAME]'s brief to him required him to provide his report within 15 days from the day he was retained, was legally unreasonable. Relying on how the analysis proceeded in [NAME] v [NAME]-[COMPANY] [1986] HCA 40; 162 CLR 24, the applicants describe [NAME] [NAME] and Mr [NAME] for the purposes of this argument as in a position similar to that of government bureaucrats – their knowledge about the relatively short deadline for Mr [NAME] report can be attributed to the decision-maker as constructive knowledge. 193 [NAME]'s response to this ground is not dissimilar to the [NAME] grounds. Again, [NAME] accepts this ground stands or falls with the proposition that [NAME] was entitled to rely on the advice of [NAME] such as Mr [NAME], Mr [NAME], [NAME] [NAME] and [NAME] [NAME]. 194 Further it submits the Court can examine the knowledge and conduct of these officers in determining whether the timing of the [NAME] decision was legally unreasonable. [NAME] also submits that given the opinions of [NAME] [NAME] and Mr [NAME] in particular that there was consent from the [NAME] "as a group", any delay could not have made a difference, and if that is the case, then legal unreasonableness cannot succeed. 195 As a separate argument, [NAME] also submits that in any event, the evidence of Mr [NAME] and [NAME] [NAME] in this proceeding make it clear that the right [NAME] for this [NAME] group had given their consent to the impugned [NAME], so that waiting for Mr [NAME] report could not have made a difference to the [NAME]'s deliberations, or their outcome. Moreover, [NAME] submits that the direction to grant [NAME] and licence occurred in circumstances where the grantees were already in occupation, and using the land for the same purpose as envisaged under the grants. The grants therefore had no adverse legal or practical effect which warrants a "heightened approach to legal unreasonableness".

[NAME]'s reliance on s 19(6) of the [NAME] 196 The scope and operation of s 19(6) of the [NAME] was a critical aspect of [NAME]'s defence of this proceeding. 197 [NAME] submits that, even if any or all of the legal errors identified by the applicants in grounds 1-6 above are made out, the effect of s 19(6) was to preserve the validity of the [NAME]'s decision, and to preclude the grant of any relief by this Court in respect of those errors. [NAME] relied, by analogy, on the reasoning of the High Court in Commissioner of Taxation v [NAME] [2008] HCA 32; 237 CLR 146. 198 [NAME] also contended s 19(6) could protect [NAME] from being impugned in relation to alleged flaws in their execution, including the applicants' contentions about the affixing of a seal, on the basis that it is contrary to the statutory purpose revealed by ss 5(2) and 19(6) if non-compliance with s 4(5) were to affect the validity of a grant.

The challenge to the grant of [NAME] by the [NAME] 199 The remaining arguments pressed by the applicants relate to the grant of [NAME], and do not turn on the lawfulness of the [NAME] decision under s 19(5) of the [NAME]. The applicants contend that, even if that decision were lawful (contrary to the six grounds of review I have described above), the grant of [NAME] was legally ineffective. 200 This aspect of the applicants' case seeks to avoid the operation of s 19(6) because it is premised on there being no "grant" which could be protected by s 19(6), even if that provision were given the operation for which [NAME] contends. 201 The applicants' argument has two parts: a challenge to the affixing of the [NAME] seal; and a challenge to the manner of execution of [NAME]. Insofar as these challenges by the applicants rely on the AD(JR) Act, they are subject to an objection to competency by [NAME], on the basis that granting the lease is not a decision or conduct to which the AD(JR)Act applies. 202 It is as well to set out here the terms of ss 4(3)-4(6) of the [NAME]: Common seal of [COMPANY] (4) The common seal of [COMPANY] shall be kept by a member of the staff of the Land Council in the area of which the [COMPANY] holds land who has been authorized by the Land Council for the purpose. (5) The common seal of [COMPANY] is to be affixed to a document only with a written authority signed by: (a) if the Trust consists of 4 or more members—at least 3 of those members; or (b) if the Trust consists of 3 members—at least 2 of those members. Note: Section 7 deals with the membership of [COMPANY]. (6) All courts, [NAME] and persons acting judicially shall take notice of the common seal of [COMPANY] affixed to a document and shall presume that it was duly affixed.

The seal contention 203 The uncontested evidence is that on 19 October 2016, [NAME] [NAME] [NAME], an employee of [NAME], affixed the [NAME] seal to the impugned [NAME]. 204 The applicants submit the [NAME] was required to use its seal to enter into a contract disposing of an interest in land, and purported to do so. The [NAME] recognised, the applicants contend, that the [NAME] (in ss 4(3) and 4(6)) assumes and requires that [COMPANY] will act through the authority of its seal, affixed in accordance with the express terms of s 4(5). The applicants contend that when the seal was affixed by [NAME] [NAME] on 19 October 2016, there was no authority given by the members of the [NAME] as s 4(5) of the [NAME] required. 205 The applicants contend there were two defects. First, [NAME] [NAME] was not authorised by [NAME], the [NAME], or the [NAME] to affix the seal to the instruments of grant. The applicants contend that the only persons authorised to affix the seal of the [NAME] were [NAME] (as Chair of [NAME]) and an Executive Member of [NAME], neither of whom affixed the seal. 206 Secondly, since the [NAME] Board had four or more members, at least three members had to authorise, in writing, the affixing of the seal, in accordance with s 4(5)(a). There was no such authorisation at or prior to 19 October 2016, and the applicants contend the authorisation must be prospective to fall within s 4(5). The authorisations in evidence, dated 11 November 2016 and signed by three members of the new Board, are said by [NAME] to be retrospective, such as to amount to ratification of the affixture of the seal. The applicants contend that, as a matter of law, there could be no such ratification. Moreover, the applicants contend that the authorisations as phrased are, in any case, prospective in nature. Relevantly, the authorisations state: …authority is hereby given by the undersigned to the [NAME] of the Central Land Council to affix the common seal… 207 Finally, the applicants contend that the authorisations in any event are still only directed at the [NAME] of [NAME], not at authorising [NAME]. 208 [NAME] relies on the statutory presumption in s 4(6) and contends that any breach of s 4(5) would not displace that presumption. It also contends that the power to dispose of an interest in land in s 4(3)(c) is not affected by any defect in the authority to affix a seal. [NAME] contends there is no temporal requirement in the terms of s 4(5) to the effect that the authority must be given before the seal is affixed, but even if there were, the [COMPANY] can subsequently ratify the affixing of the seal. Finally, [NAME] submits that even if there was a defect in authorisation, it does not affect the validity of the impugned [NAME], relying on a construction argument based on [COMPANY] v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 as applied to s 4(5): namely, that a breach of s 4(5) is not intended by the legislative scheme of the [NAME] to affect the validity of proprietary interests granted to a third party under s 4(3) by the [COMPANY].

The contention that there has been no grant 209 Rather than being an independent basis upon which to secure relief, as I understood the applicants' submissions, these contentions are directed to avoiding the operation of s 19(6) by [NAME] route. That route is to contend that there has been no "grant" of any of the impugned [NAME], and therefore s 19(6) has no effect, because in terms it only operates where there has been a "grant". 210 The applicants contend that "grant…of an estate or interest in land" in s 19(6) should be construed as referring to what occurs on the conclusion of an enforceable contract between the parties. They submit there could be no agreement concluded until execution of the instruments by the [NAME], and an agreement reflected by the execution of [NAME] by all parties. When [NAME] sent the impugned [NAME], executed by [NAME], to the [NAME] parties, there was only an offer to enter into a lease. The agreement could not be made until the [NAME] parties had executed [NAME]. The applicants also raised a rather complex argument about why [NAME], without being fully executed, would not be enforceable in equity. 211 [NAME] answers this contention principally by submitting that when the [NAME] gave a direction to the [NAME], there was a grant, and [NAME] are protected by s 19(6), this defeating the applicants' arguments about the [NAME] seal. Noting also that the [NAME] did execute [NAME], and it is only [NAME] to [NAME] and [RESPONDENT] which remain unexecuted, an equitable interest in the land covered by [NAME] has been created in those two parties and that is also sufficient to fall within the terms of s 19(6).

[NAME] position in summary 212 [NAME] is generally supportive of the submissions made by [NAME], but advances its own submissions on some issues, adopting a somewhat different perspective. It is fair to say its perspective was pragmatic. 213 [NAME] (and [RESPONDENT]) points to the function and operation of s 14 of the [NAME], which provides: 14 Occupation etc. by the [NAME] etc. of [NAME] land vested in [COMPANY] (1) Where, on the vesting in [COMPANY] of an estate in fee simple in land, the land is being occupied or used by the [NAME] or, with the licence or permission of the [NAME], by an Authority, the [NAME] or the Authority is entitled to continue that occupation or use for such period as the land is required by the [NAME] or the Authority. (2) During the period for which, by virtue of subsection (1), the [NAME] or an Authority is entitled to the occupation or use of land, any buildings and improvements on that land shall be deemed to be the property of the [NAME] or the Authority. (3) Nothing in this section prevents the granting by [COMPANY] of a lease of land referred to in subsection (1) to the Commonwealth, [NAME] or an Authority, as the case may be, and, if such a lease is granted, the land ceases to be land to which this section applies. (3A) Nothing in this section prevents [COMPANY] granting a lease of land to an [NAME] under section 19A that includes land referred to in subsection (1) of this section. (3B) If land (the applicable land): (a) is of a kind referred to in subsection (1); and (b) is part of land that is leased to an [NAME] under section 19A; nothing in this section prevents the [NAME] granting a sublease of the applicable land to the Commonwealth, [NAME] or an Authority, as the case may be. (3C) If such a sublease is granted, the applicable land ceases to be land to which this section applies. (4) This section does not apply in relation to an occupation or use of land that is authorized by the Atomic Energy Act 1953 or any [NAME] authorizing mining for minerals and this section does not prejudice the operation of the Atomic Energy Act 1953 or that [NAME], as the case may be. 214 Thus, [NAME] submits that the [NAME], [RESPONDENT] and the Council all occupy the land which is the subject of the impugned [NAME] rent free as of right pursuant to s 14. The decision to enter into [NAME], and pay rent, can be traced to a policy decision in 2008 to rely on infrastructure [NAME] in preference to the rights conferred by s 14, including because [NAME] would provide an income stream to communities (through the [NAME]). 215 It contends that the applicants' claims are misconceived (at least insofar as these three respondents are [NAME]) because no grant of a lease by the [NAME] to [NAME] could extinguish the rights of these three parties to occupy the land (rent free) under the terms of s 14. The "pre-existing rights" of those three parties condition the power in s 19 of [NAME] to direct the [NAME] to enter into [NAME] with [NAME] parties, such as [NAME]. 216 Due to that context, [NAME] submits the entire proceeding is misconceived, based as it is on a premise that there was a choice available to the [NAME] between [NAME] to the respondents and [NAME] to [NAME]. [NAME] submits that premise is wrong. 217 [NAME] also submits that it, and [RESPONDENT], were in substance bona fide purchasers without notice of any flaw in the [NAME] decision-making. They rely on this as a ground on which the Court should refuse relief, even if persuaded by the applicants' submissions that the [NAME] decision is unlawful, or [NAME] were executed without authority. 218 The applicants answer the s 14 argument, on broad terms, by submitting that they seek no relief in this proceeding concerning [NAME] and any grant of [NAME] to it. Rather, they only seek relief concerning the impugned [NAME] and if they establish an entitlement to that relief in law, the relief should be granted, even if [NAME] is correct (which they do not accept) that s 14 would preclude the grant of a head lease to [NAME]. 219 The applicants answer the bona fide purchaser argument with four contentions. First, these matters only go to the Court's discretion on relief, if they are relevant at all. [NAME], for reasons I have summarised at [213] above, there is no lease between the [NAME] and [NAME] because [NAME] has not executed the lease. At most it has an equitable interest, but not one in the circumstances that equity would enforce. Next, [NAME] has not paid any monies and so is not a purchaser "for value". Finally, if [NAME] were to now execute the lease, so as to convert its interest into a legal one, it would do so at a time when it has notice of the applicants' claims.

RESOLUTION

Preliminary matters

The [NAME]'s objectives and scheme 220 There have now been many authorities, in this Court and in the High Court, which have described and analysed various aspects of the scheme for the grant of land to [RESPONDENT] [NAME] in [NAME] which the [NAME] establishes. It is not necessary to canvass those authorities in great detail, and I refer here only to aspects relevant to the determination of the issues in this proceeding. 221 The genesis of the [NAME] is traced by [NAME] in his reasons of judgment in R v [NAME], Ex parte [COMPANY] [1982] HCA 69; 158 CLR 327 at 354-355, including the critical turning point of Blackburn J's judgment in [NAME] v [COMPANY] (1971) 17 FLR 141 where the Court found it could not recognise rights held by [RESPONDENT] [NAME] in land as proprietary rights under [NAME]. [NAME[NAME] describes the effect of the scheme as restoring areas of land within [NAME] to "[NAME] control": at 355. [NAME] also describes the effect of s 19(5) in the following way (at 359): The usufructuary rights of [NAME] in respect of [NAME] land, once acquired, might be overridden by the granting of a lease or licence by [COMPANY] (s. 19(3)), or by a surrender of that land to the [NAME] (s. 19(4)), but any of those events requires the approval of the [NAME], and of any [NAME] or group that might be affected thereby (s. 19(5)(a) and (b)). The [NAME] connected with a tract of country were thus made competent to use their country in a non-[NAME] way if and when an [NAME] consensus to do so should be established. 222 Justice Toohey, when [NAME] Commissioner, described the objective of the [NAME] in the following terms (cited by French CJ in Wurridjal v Commonwealth [2009] HCA 2; 237 CLR 309 at [99]): Essentially the object of the Act is to give standing, within the Anglo-Australian legal system, to a system of [NAME] ownership that has so far failed to gain recognition by the courts. [Commonwealth, [NAME] Commissioner, [NAME] (Old Top Springs) Mudbura Land Claim (1980), p 14 [70].] 223 As the [NAME] noted in the Blue Mud Bay case ([NAME] v [NAME] [COMPANY] [2008] HCA 29; 236 CLR 24) at [50], although the scheme differs in some ways from an interest usually recorded in a [NAME] system as an estate in fee simple, the [NAME] uses the term "fee simple" in its description of the estate granted, and that use must be given effect. 224 In Wurridjal at [18], French CJ described the role of [COMPANY] under the [NAME] in the following way: [NAME] are bodies corporate, established by gazetted ministerial notice "to hold title to land in [NAME] for the benefit of [NAME] entitled by [NAME] tradition to the use or occupation of the land [NAME]". They hold title to the land vested in them in accordance with the Act and exercise their powers as [NAME] of the land for the benefit of the [NAME] (s 5). They can only act, in relation to the land, in accordance with directions given by the Land Council for the area (s 5(2)). They are not empowered to accept moneys due and owing to them or to give a valid discharge for such moneys, but moneys may be paid to the Land Council for the area (s 6). (Footnote omitted.) 225 At [20], French CJ described the power of [NAME] to dispose of land vested in them as "conditional", with a footnoted reference to ss 19, 19A and 20 of the [NAME]. The consent of [NAME] is not the only matter which conditions the [COMPANY]'s power of disposition: the Minister's consent is also essential in some circumstances. 226 At [22], having noted such a "conditional" disposition power, [NAME] referred to the terms of s 23(3)(a) as imposing a prohibition on [NAME]: A Land Council is not to take any action in connection with [COMPANY] land unless it is satisfied that the [NAME] understand the nature and purpose of the action and consent to it as a group (s 23(3)(a)). 227 [NAME]'s language was different, at [395] in Wurridjal, in discussing the legislative scheme of "control" established by the [NAME], [NAME[NAME] described [COMPANY] as having the power to dispose of an interest in [NAME] land (such as a lease) "provided always that it had the requisite consent of the [NAME]". 228 Title is held by [COMPANY] for a group of [NAME] wider than those identified as [NAME], hence the bifurcation in s 19(5) between consent from [NAME] as a group and consultation with any [NAME] who are affected. [NAME[NAME] expressed it this way in [NAME] at [18]: [COMPANY] holds the title to land vested in it in accordance with the ALRA, but must exercise that ownership for the benefit of [NAME] entitled by [NAME] tradition to the use and occupation of the land: s 5(1)(b) of the ALRA. The persons for whose benefit that land must be held may extend beyond the [NAME] as defined to [NAME] [NAME] who may have a [NAME] entitlement to use or occupy the land. 229 [COMPANY] holds its title for the benefit of the [NAME] entitled by [NAME] tradition to the use or occupation of the land: ss 4(1), 5(1)(b), 11(1). It must not exercise its functions in relation to land held by it except under the direction of the relevant Land Council. The functions of a Land Council include protecting the interests of [NAME] of, and [NAME] [NAME] interested in, [NAME] land, and negotiating on their behalf with persons desiring to obtain an interest in such land. In carrying out those functions, a Land Council must have regard to the interests of the [NAME]. It is not to take action in connection with land held by [COMPANY] unless satisfied that the [NAME] understand the nature and purpose of the action and consent to it and that any [NAME] or group affected by it has had an opportunity to express views to the Land Council. Except as provided by ss 19-20, [COMPANY] must not deal with or dispose of any interest (including a licence) in land vested in it. A Land Council must not give a direction for the grant of an interest unless satisfied that the [NAME] understand and consent, that any [NAME] affected by the grant has been consulted, and that its terms are reasonable. 230 If its express terms did not suffice (which in my opinion they do), the fact that s 19(5) is intended to operate as a constraint on the power of disposition of [NAME] land given to a Land Council has been recognised: see, e.g Blue Mud Bay case at [49]. 231 It is also necessary to consider [NAME] decision of [NAME] v Northern Land Council (1983) 20 NTR 1, which led to the enactment of s 77A of the [NAME]. It is important also because it [NAME] a factual situation not dissimilar from the present: namely, where some [NAME] opposed the grant of [NAME] (there, mining [NAME]) while the majority of [NAME] agreed to [NAME]. However, it is also important to recall that [NAME] reasons related to a decision on an interlocutory injunction, and as [NAME] observed, were somewhat constrained because of that. [NAME[NAME] referred (at 8) to the "delicate and complicated task" of identifying who are the [NAME] of [NAME] land for the purposes of the consent and consultation functions given to [NAME], finding that ultimately it is a task reposed in the Land Council. [NAME] rejected the conditions of the plaintiffs before him that unanimity amongst [NAME] was required for there to be consent "as a group". 232 [NAME] said (at 9): …I take the view that it was the intention of Parliament to leave it to the Land Council to determine whether consent has been given and if this [NAME] body determines, after due consultation, that a majority decision should be accepted or rejected as a consensus, then it is for that body, not the court, to so determine. … One can assume that those who constitute the Land Council, and those [NAME] who join in deliberation as to land use, well understand the sensitive nature of [NAME] ownership and the ties thereby created. To deny those [NAME] the right to make majority decisions, if they wish to do so would be to deprive them of a decision-making process which they may wish to adopt and which is so commonly adopted in Australian society. 233 It can be seen that the ultimate form of s 77A reflects [NAME]'s approach.

Statutory construction 234 There are real constructional choices about the scope and operation of s 19(5) and s 19(6) of the [NAME]. In [NAME] v [NAME] Protection [2017] HCA 34; 347 ALR 405 at [14], the [NAME] said: The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or [NAME] context, some [NAME] meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. (Footnotes omitted.) 235 Similarly, [NAME[NAME] (who was in dissent, but not on the principles of statutory construction) said at [37]-[39]: The task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility "if, and in so far as, it assists in fixing the meaning of the statutory text". The constructional choice presented by a statutory text read in context is sometimes between one meaning which can be characterised as the ordinary or grammatical meaning and [NAME] meaning which cannot be so characterised. More commonly, the choice is from "a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural", in which case the choice "turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies". Integral to making such a choice is discernment of statutory purpose. The unqualified statutory instruction that, in interpreting a provision of a Commonwealth Act, "the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each [NAME] interpretation" "is in that respect a particular statutory reflection of a general systemic principle". (Footnotes omitted.) 236 There are two limbs to s 19(5)(a) and this should not be overlooked. There is what one might call the "understanding" limb, and then there is the "consent" limb. As it is structured, and for reasons that are apparent when the legislative scheme is considered, the text and context of the first limb makes clear that all [NAME] should "understand" the nature and purpose of the proposed grant. That understanding might be inferred by a Land Council from the manner in which the proposal has been presented to [NAME], and the reaction and response of those to whom it was presented to. It is likely, as the facts of this proceeding demonstrate, that a proposal will be presented and discussed on more than one occasion, in a meeting situation and that information about a proposal will be available in written and oral form. There will be real factual determinations to be made by a Land Council as to whether [NAME] understand the "nature and purpose" of any proposed grant, and those factual matters must be carefully considered by a Land Council, not paid lip service to. 237 The [NAME] limb, quite separately and distinctly expressed, is the "consent limb". It is clear from the structure of para (a) that the phrase "as a group" only applies to this limb. As [NAME] observed in [NAME] at 10-11, the provisions could have been differently expressed to make it clear that the consent of each and every [NAME] was required. Even before the enactment of s 77A, in my respectful opinion [NAME] was correct to see the provision as not imposing this kind of unanimity requirement. 238 However it is also important to emphasise that, unless there has been a specific election by the [COMPANY] under s 77A(b) for a decision-making process by majority, consent "as a group" does not mean or imply that a simple majority of [NAME] will necessarily suffice. There may be reasons related to the seniority position of certain individual [NAME] which would mean that without the consent of those individuals, there could not be consent "as a group". 239 The principles to which I have referred above are also important in ascertaining the proper construction of s 4(5) of the [NAME]: see [462]-[477] below.

Fact finding

Fact finding on the applicants' challenge to the [NAME] decision 240 In this section, I set out my findings in relation to the factual matters material to my reasoning on the applicants' challenge to the [NAME] decision. 241 I accept the respondents' submissions that the necessary fact finding for the purposes of the grounds of review is narrower than the applicants' evidence might have suggested. That said, I accept there was considerable background and context to the legal issues arising from the October 2016 decision by the [NAME], and therefore no real criticism should be levelled at the applicants for placing a larger amount of material before the Court.

[NAME] [NAME] ownership, the [NAME] and decision-making 242 At the outset, it is important to describe some of the key aspects of [NAME] decision-making amongst the [NAME] of the [NAME]. This was the subject of evidence and, at a general level, was not contested, although some of the detail, as well as the consequences or relevance of these matters, was the subject of some dispute. I accept [NAME] [NAME] evidence on these matters. [NAME] [NAME] evidence was generally consistent with what [NAME] [NAME] said, except in relation to the status of [NAME] [NAME] as [NAME], as well as the specific requirements of consultation between the [NAME] and [NAME]. [NAME] [NAME] conceded during cross-examination that her opinions about the content of [NAME] law and what is required for decision-making are based largely on what she is told by members of the group, not being a [NAME] herself. To the extent of the inconsistencies, I consider that [NAME] [NAME], as a [NAME], is better placed to describe the specifics of the [NAME] decision-making structure of her own [NAME]. None of [NAME] [NAME] evidence about [NAME] decision-making was contradicted by any [NAME] [NAME] witness, and importantly, it was not contradicted by Mr [NAME] who was called by [NAME]. 243 [NAME] [NAME] described the land ownership and decision-making structure for [NAME] in the following way: [NAME] land tenure involves a form of identification between tracts of country (in the [NAME] language, "[NAME]", meaning a place you belong to or your home country) and particular groups of [NAME]. The [NAME] have belonged to the "[NAME]", "[NAME]" and "[NAME]" [NAME] since time immemorial. These are family kinship words. We are connected to, as one with, our [NAME]. …. The "[NAME]" are the [NAME] who have rights and responsibilities in accordance with [NAME] ([NAME] law) arising through their descent from their [NAME] (father's father) for the part of an [NAME] ("estate"). [NAME] are [NAME] who are related to a particular group of [NAME] because their [NAME] ([NAME]) or their [NAME] (father's mother) or their [NAME] ([NAME] mother) is or was [NAME] of that same group. The [NAME] are first cousins, by blood connection, of the [NAME]. Together, the [NAME] and the [NAME] have the main responsibilities for looking after the estate and authorising what goes on there. They are the [NAME] of the estate. Whilst our [NAME] are often called by us in Australian language words as "[NAME] of an estate", they actually take care of it in partnership with [NAME]. Sometimes, by way of explanation in Australian language, [NAME] refer to the [NAME] as meaning "cultural lawyer", "manager", "policeman", "[NAME]" or "[NAME]". They are the holders and keepers of the [NAME] ([NAME] law) The [NAME] are to ensure that the [NAME] look after an estate according to the dictates of the [NAME] ([NAME] law). Factors such as gender, knowledge, seniority and [NAME]-term residence also bear upon the strength and priority of responsibility we [NAME] have in relation to our [NAME]. 244 She continued later in her affidavit: [NAME] is part of my grandfather's estate (that is, the estate for which my [NAME]'s was [NAME]). His kinship name was [NAME]. His name was [NAME]. The [NAME] is and has always been part of the [NAME] of the [NAME]. It is my [NAME]'s country; it is my [NAME]-keke. That is how it is related to me and me to it. I am a senior member of the [NAME] of [NAME]. 245 The evidence disclosed that the most recent anthropological description held by [NAME] of [NAME] land ownership and decision-making structures in the [NAME] was a document prepared by [NAME] [NAME] in 2012. This was one of the documents Mr [NAME] was briefed to "update". However, the applicants submit and I accept that as at the time of the [NAME] decision-making, and also as at the time of the 12 October 2016 meeting, this was the information in the possession of [NAME] which was supposed to guide its approach to consultation and decision-making within the [NAME]. It is conceded by [NAME] that this document was not before the [NAME] at the time it made its decision. 246 Relevantly, [NAME] [NAME] stated in this 2012 report: [NAME] lies on the country of [NAME] which extends north into [NAME] township where they were recognised as native title holders of [NAME] by [NAME] in 2000; it extends south to the Ooraminna Ranges, where they received compensation for the extinguishment of Native Title over Ooraminna Homestead, in the form of a freehold block of land owned by [COMPANY] (2009). [NAME] are also native title holders for [NAME] which lies over the [NAME] uranium deposit on Owen Springs. This has been a high profile tenement, much in the media, and has required their attendance to at least 10 [NAME] meetings since 2008. Throughout all these consultation processes, they have become quite a strong cohesive group, despite the loss of their 'leader', [redacted] in 2010, to Cancer. The structure of this group has changed since the anthropology research undertaken in the nineties to assist determination of native title over [NAME]. The [NAME] trace their ancestry back to their grand-fathers, as is customary for [NAME] societies. Thus, [NAME] [NAME] identify themselves as descendants of [NAME] and predominantly reside in [NAME], [NAME], [NAME] and [NAME]. [NAME] (although he works at [NAME]), [NAME] & [NAME] are [NAME] [NAME] TO [NAME] of [NAME]; [NAME] are also [NAME] [NAME] [NAME], but not resident in [NAME]. [NAME] would be senior [NAME] for matters affecting [NAME]. (Identifying information removed, emphasis in original.) 247 In a document a few months earlier she also stated: Comment: With the passing of [redacted] in 2010, [COMPANY] are still working through who the next 'head man' will be. [NAME], while assertive, does not have the appropriate ritual authority and care should be taken, when taking instructions, that [NAME] does not bolster his own views by drawing on the support of the [NAME]. (Identifying information removed.) 248 In cross-examination, [NAME] [NAME] agreed her observation about Mr [NAME] applied also in October 2016. However she made the point that her earlier 2012 comment had been in relation to a meeting she would not be attending, whereas she was present at the [COMPANY] meeting and in her view, if Mr [NAME] was not "representing the group present" at that meeting, others would have spoken up. 249 Bearing these opinions in mind, I turn now to [NAME] [NAME] evidence in her affidavit in this proceeding. At [20], she expressed her opinion that the [NAME] who have responsibility under "[NAME] tradition" (I infer she means specifically [NAME] tradition) for being involved in the making of decisions about proposals for [NAME] land were those she set out in a table in this paragraph of her affidavit, as amended in her oral evidence. They were as follows: Name Sub-section [NAME] FF [Father's Father] [NAME] FF [NAME[NAME] [NAME] FF [NAME] MF [[NAME]] primary [NAME]

[NAME[NAME] [NAME] FF [NAME] FF [NAME[NAME] [NAME] FF [NAME] FF [NAME] FF [NAME] FF [NAME] [NAME] [NAME] FF

[NAME] [NAME] FF [NAME]/[NAME] MF [NAME] MF

[NAME] [NAME] [NAME] [NAME] [NAME] MF

250 [NAME] [NAME] explains that this table is divided by seniority, with the senior men first, then the senior [NAME] and younger [NAME] of men, then the "next [NAME] down", and finally the [NAME]. 251 I pause here to note that [NAME] [NAME] disputes some of the details in this table. In particular, [NAME] [NAME] considers that four [NAME] individuals ([NAME] "[NAME]" [NAME] and [NAME]) should be included. [NAME] [NAME] also notes that there are some misspellings of names in the table, namely "[NAME[NAME]" (which should be "[NAME]" [NAME]), "[NAME] [NAME]" (which should be "[NAME]" [NAME]) and "[NAME]" (which should be "[NAME]" [NAME]). As they are not material to my decision, I make no finding as to these points of difference. 252 This was [NAME] [NAME] evidence about how she reached the conclusion in her report to [NAME] that the [NAME], as a group, had consented to the grant of the impugned [NAME]:

34. I then observed [NAME], who I know as one of the senior [NAME], tell [NAME] that they wanted to go ahead with [NAME] to the [NAME], [RESPONDENT], [NAME] and the [NAME]. No one in the room disagreed with what [NAME] said. [NAME] also said that [NAME] and [NAME], who were not at the meeting, had agreed to [NAME].

35. As I have mentioned, I understand [NAME] to be the senior [NAME] and so he should normally be consulted by the [NAME]. At the 12 October 2016 meeting [NAME] said that [NAME] men had met with [NAME] to discuss the lease proposals. I was also aware that [NAME] had attended [NAME] meeting and [NAME] told me that he had spoken to [NAME] the day prior to the 12 October meeting.

36. In my experience, it is common for one of the [NAME] to speak on behalf of the group. Also, in my experience, if that person does not faithfully represent the views of the group, then others in the group will speak up.

37. It is and was my opinion, again based on my based on my training, study and experience as an anthropologist, including my experience in working with the group over the last 12 years, that [NAME] validly expressed the consent of the group of [NAME] who have [NAME] responsibility for making decisions about country.

38. At the meeting, a group of mostly [NAME] refused to participate in the decision-making about the proposals for [NAME] of land at [NAME]. The [NAME] were [NAME] [NAME], [NAME[NAME], [NAME] and [NAME[NAME]. [NAME] also joined with this group. This group did not vote against the proposal rather they signed documents that said that they would not participate in the decision. This group was also the most junior of the [NAME] who were present. In my opinion, this group did not, and could not under applicable [NAME] tradition, "veto" a decision that was made by the senior men. When [NAME] made the statements I described in paragraph 34 above, he also said something to the effect that this group of [NAME] were the nieces and nephews of the [NAME].

39.

For these reasons I am and was satisfied that the [NAME] understood the nature and purpose of the proposal and use agreements and, as a group, consented to them, and that this happened in accordance with the decision-making processes applicable under [NAME] [NAME] [sic] of the [NAME]. I did not regard my absence from the September meeting as affecting my opinions of the validity of the October instructions.

40. During the meeting, I confirmed privately to [NAME] that there were sufficient senior [NAME] present to provide instructions and I affirmed the validity of the instructions (when given by [NAME]) by nodding my head to [NAME]. Immediately after the meeting, I told [NAME] my opinions, as set out in the previous paragraph. I then recorded my conclusions in my memorandum of 12 October 2016 to [NAME] so that the decisions of the group could be actioned by [NAME]. This follows the usual [NAME] practice that the Anthropology section staff of [NAME] involved in consultations on land use proposals provide to the staff who take a matter to the Council or [NAME] their views on whether or not the relevant [NAME] understand the nature and purpose of the proposal and as a group, consented to it. 253 In cross-examination, [NAME] [NAME] accepted that prior to the 12 October 2016 meeting, the only person on her list to whom she had spoken about that person's position on whether there was consent to the impugned [NAME] was [NAME] [NAME]. This is consistent with what [NAME] [NAME] says in her memorandum to Mr [NAME], sent after the 12 October 2016 meeting. She also accepted that a number of matters affected the assessment by an anthropologist of whether there was consent by a [COMPANY] to a particular proposal – including matters such as personal conflicts within the group, reasons for [NAME] to speak up, and perceptions of various [NAME] about where money might be going. She agreed there may be different views between [NAME] about who were the [NAME], although in re-examination she stated that she did not consider there was any lack of clarity in who comprised the [NAME] of the [COMPANY]. She also agreed that, with the [NAME], there remained a high level of conflict in October 2016, as there had been for some time, and as she had observed in earlier reports to [NAME]. Later in her evidence she said that the conflict "ebbed and flowed". 254 [NAME] [NAME] view was that [NAME] opinion on the proposal, as the primary [NAME], would not need to be given weight, for reasons she described as "complicated". Later, she agreed that Mr [NAME] participation was "essential", but stated that the [NAME] were the decision-makers. 255 In re-examination, [NAME] [NAME] identified some of the individuals she described as the senior decision-making [NAME] who agreed to the impugned [NAME] proposals: [NAME] and [NAME]. She also stated that there was a "very small number of [NAME] that were in disagreement". I understood that to be a reference to the individuals she had identified in [38] of her affidavit, including the [NAME]. 256 It is clear [NAME] [NAME] acted upon, or took at face value, the statements by Mr [NAME] that both Mr [NAME] and [NAME] [NAME] agreed about the impugned [NAME], at least together with the fact (which she appeared to consider important) that no one spoke against what Mr [NAME] said. 257 Although there were aspects of [NAME] [NAME] evidence I found less than satisfactory, I am prepared to accept her evidence as I have set it out above concerning how she reached the opinion she did, as she expressed it to Mr [NAME] at the meeting. 258 I am strengthened in my conclusion by the evidence of Mr [NAME], the head anthropologist from [NAME], whom I found to be a clear and reliable witness. While he accepted in cross-examination that there were clearly disagreements between [NAME] about decision-making processes, it was his opinion (expressed in re-examination) that such disagreements within the group may not prevent the group reaching a consensus on a particular issue. In Mr [NAME] opinion, the group may elect to set aside their differences to come to an agreement, and this can form part of the "cultural way of acting" for [NAME]. That might especially be so if the disagreement is between more senior [NAME] and less senior [NAME], where the latter may not be in a position to continue to contest a decision. 259 Mr [NAME] acknowledged that if there were competing views over what [NAME] thought about the impugned [NAME], then given his status in the group, it would be preferable that he attended any meeting and expressed his own views. In his opinion, this was not the case for [NAME] [NAME], because there are others at her level of seniority. He deposed that if it were the case that [NAME] [NAME] and Mr [NAME] were required to be present for a decision to be made, "in my experience those present would have stopped the meeting or advised they were unable to make decisions." However, he also fairly conceded [NAME] reasonable [NAME] might come to a different view. 260 Mr [NAME] evidence was that, as an anthropologist, when approaching a question like whether a group consented to a proposal, there was a "balance" between what he witnesses, what he is told by members of the group and what he has read previously. He said: …we've also recorded the views of the group over the last 40 years, and [NAME] [NAME] have also recorded the views of the group. 261 He considered [NAME] [NAME] was better placed than him to reach a conclusion about whether there was consent by the group, given the [NAME] period over which she had worked with [NAME] from [NAME].

An observation about the process 262 In this proceeding, there was no issue raised about the process adopted by [NAME]: that is, the process of using (largely non-[NAME]) [NAME] as the persons who express a concluded view, and recommendation, to [NAME] [NAME] (such as Mr [NAME]) about whether a [COMPANY] have given consent. No challenge was made to the unstated premise of this approach that a [COMPANY] cannot have autonomy over their decision-making so that they simply convey what their views are, without the additional layer of an anthropologist interpreting what they say and do, and measuring it for consistency against prior interpretations of previous expressions of the group's views. I am not aware of any [NAME] group of [NAME] in Australia whose decision-making processes are subjected to this kind of overlay. Whether it be union members, [NAME], [NAME], [NAME] such as local councils, or any [NAME] form of collective decision-making, there is no requirement that a person or persons who are culturally separate, and not part of that group, somehow supervise, interpret and give an imprimatur to a collective decision-making process. The [NAME] does not require it. The [NAME] simply requires consent from [NAME] as a group. As I say, this was not an issue raised in this proceeding however, the evidence in this proceeding makes it clear that the primary source of authoritative information about what the [NAME] say is not considered to be what the [NAME] say, but rather what an anthropologist concludes from what they say, after having measured it against what has been said in the past. That process of measuring for consistency is, it seems to me, a layer of external validation which is not applied to any [NAME] form of collective decision-making by [NAME] in Australia. It is also not the evaluative process contemplated by the [NAME]. That evaluative process is given to a Land Council, or its delegate, all of whom are themselves [NAME]. It is not given to [NAME]. While it is clearly contemplated that a Land Council may receive, and use, expert advice (see s 27(1)(b)), the subject matter of s 19(5) is a matter for the [RESPONDENT] members of the Land Council.

What occurred at the [COMPANY] meeting 263 The parties agree that the question whether the "right" [NAME] did, in fact, consent to the grant of the impugned [NAME], or whether the [NAME] as a group, consented to the grant of the impugned [NAME], are not questions the Court need itself determine in order to decide the judicial review application. Bound up in this question is the issue of who, within the [COMPANY], needs to be individually consulted, and who, within the [COMPANY], might have more of a "say" in the decision. Again, the parties are in agreement that these assessments are difficult and complex for those on the outside looking in at [NAME] society, even for those (such as [NAME]) who have been trained and are experienced in doing so. 264 All parties agree that if those questions needed to be answered, they were questions for the [NAME] in performing its function under s 19(5) of the [NAME]. [NAME], or any [NAME] to whom it delegates the task, is charged under the [NAME] with the responsibility of determining who are the [NAME] for affected land, and also for determining whether decisions have been made by the group in accordance with the Act – namely, either by a [NAME] decision-making process, or a previously agreed one. 265 Nevertheless, on the applicants' contentions at least, identifying the differing views amongst the [COMPANY], and identifying who may or may not have consented, was a relevant and material task in the judicial review. That is because part of the applicants' case is that the [NAME] was not adequately or completely informed about the nature and significance of the differing views within the [COMPANY] as to the proposed [NAME], nor was it accurately informed about the views of some of the senior [NAME], in particular Mr [NAME] and [NAME] [NAME]. A corollary of this is that the [NAME] was not adequately or completely informed about the nature and significance of the views within the group about the importance of the [NAME] itself, through [NAME], managing [NAME]. That is not to say the evidence reveals there were two binary "positions", and the [NAME] had to choose between them. It seems to be part of the applicants' case that (as occurred in 2015) further information about the depth, breadth and strength of differing views might have instead caused the [NAME] to put more resources and effort into additional consultations with the group. 266 The 12 October 2016 meeting was identified in the documents distributed at the meeting as a meeting of the [NAME]. I have set out at [152] above the key [NAME] who attended the meeting. 267 What I set out is drawn in part from [NAME]'s annotated version of the applicants' factual contentions on this aspect, in part from the documents admitted through the notice to admit filed by [NAME] and, where I indicate, from [NAME] parts of the evidence. 268 During the first stage of the 12 October 2016 meeting, Mr [NAME] gave some information to the assembled [NAME] about the competing lease proposals. He did not provide copies of the terms of any of the draft [NAME] (whether those from the respondents or the proposed [NAME] lease). In the notice to admit were documents the parties agreed were shown to [NAME] at the 12 October 2016 meeting, and which described some terms of the impugned [NAME], such as their length, the proposed rental payments, and the purpose of [NAME]. Similar documentary information was provided in relation to the [NAME] lease. 269 After Mr [NAME] explanations, all the [NAME] (including [NAME] [NAME]) left the room. [NAME] also left; [NAME] [NAME] and Mr [NAME]. Mr [NAME] was a person who [NAME] [NAME] identified in her table and in her 2012 report (extracted at [250] above) as the senior [NAME] for matters affecting [NAME]. [NAME] [NAME] also left the meeting. After some time, the [NAME] returned. None of the [NAME] who had left the meeting at the same time as the [NAME] returned, including Mr [NAME]. Why they left, and whether they had already expressed their views on the lease proposals, was not the subject of any evidence. 270 After the [NAME] returned, Mr [NAME] stated that the [NAME] family wanted to "sign up" for [NAME] to [NAME], [RESPONDENT], [NAME]. He stated that [NAME] [NAME], Mr [NAME] and Mr [NAME] (who were absent from the meeting) did also, saying "and all of us", which I take to mean members of the [NAME] family. 271 [NAME] [NAME] stated that the [NAME] and [NAME] [NAME] would need to be included. She stated that [NAME] [NAME] and Mr [NAME] should be present, saying that Mr [NAME] "should be here to talk [for] himself", and saying that she had a "different story" from [NAME] [NAME] and Mr [NAME]. 272 Mr [NAME] then sought to move the meeting on to further "agenda items", including a discussion about the occupancy of the [NAME], which Mr [NAME] told the [NAME] would be discussed at [NAME] meeting. 273 [NAME] [NAME] said that there would need to be [NAME] meeting "just for [NAME] and [NAME] – not anybody else, not [NAME]". It was at this point that Mr [NAME] made a remark recorded by [NAME] [NAME] about [NAME] [NAME] and "this mob" being "nephews and nieces" and not the persons with authority to make decisions. 274 Mr [NAME] then asked "[t]his is a decision today of the senior group, OK?", to which Mr [NAME] confirmed "[y]ep." Mr [NAME] went on to explain how the papers for [NAME] would go to the [NAME]. 275 It is common ground that [NAME] and [NAME] were absent, and that [NAME] left before [NAME] made his statements about a decision. It is also common ground there was no vote taken, and that of the [NAME] present (approximately 19, according to [NAME] [NAME] count), most said nothing at all about the lease proposal, one way or the [NAME].

The relevance of the witness evidence from [NAME] 276 Given the findings I have made above, and my acceptance of [NAME] submissions about the confined nature of the facts relevant to the grounds of judicial review, it might be said that much of the evidence adduced from the [NAME] on behalf of the applicants (and also on behalf of [NAME]) is of little or no relevance. 277 However, that evidence does confirm, in my opinion, the factual proposition that as at 12 October 2016, the time of the [COMPANY] meeting, there were real differences of opinion between [NAME] about whether the impugned [NAME] should be granted or whether [NAME] should make an arrangement with [NAME], or should make some of the kind of arrangements which gave the [NAME] within the [NAME] a more direct role in the activities to be undertaken in their communities on [NAME] land. This included differences of opinion between [NAME] whose views were important to the group of [NAME]. 278 The relevance of this factual proposition to the grounds of judicial review is that any understanding by the [NAME] that there was not such a divergence of views could be a material misunderstanding of the true situation. However, such an understanding is not necessarily the same thing as the matter on which the [NAME] needed to be satisfied, which was whether the [NAME], as a group, consented. For reasons I set out elsewhere, in my opinion the phrase "consent as a group" should not be construed as meaning there must be unanimity amongst the [COMPANY], nor even unanimity amongst the [NAME] with decision-making responsibilities under [NAME] law and custom. As Mr [NAME] noted, "consent as a group" may also involve some with opposing views effectively electing not to press them. The dynamics are likely to be many and various. 279 Turning then to my findings on the evidence about the divergence of views, these can be shortly stated. 280 In general terms, I found [NAME] [NAME] to be a compelling witness. Her evidence about her role in organising a wide range of matters for her community over a [NAME] period of time, including her instrumental role in the formation of [NAME] is indicative of her dedication to the interests of her community as she saw them. It is clear not everyone in the [NAME] shared her perspectives, and perhaps some saw her as too forward for her "place" within [NAME] decision-making structures in that community. Those are matters which may be illustrative of the challenges often facing younger, or less "senior", [RESPONDENT] [NAME] in participating in decision-making under [NAME] models. I note there was some suggestion by [NAME] that [NAME] [NAME] had, in effect, plagiarised her evidence from parts of the judgment of [NAME] in [NAME] v [NAME] [1999] FCA 1248; 97 FCR 32. I reject this suggestion, and find it without foundation. [NAME] [NAME] was not cross-examined on this contention. She was merely asked whether she had been involved in the [NAME] v [NAME] proceeding, and whether she had read [NAME[NAME]'s judgment, to which she responded that she had. [NAME] [NAME] deposed that she had also read the anthropologist's report referred to in [NAME[NAME]'s decision. It is hardly surprising that, when describing general [NAME] concepts such as [NAME] and [NAME], there may be some similarity in the descriptions used. 281 There seemed to be some suggestion that [NAME] [NAME] insistence at the 12 October 2016 meeting that the correct [NAME] were not present, and/or had not agreed, was not genuine, or that there was some inconsistency in her position compared to [NAME] situations in the past. Having heard her evidence, I am satisfied she held a genuine concern on 12 October 2016 about the right [NAME] not being present, and about whether those who were not present (especially Mr [NAME], [NAME] [NAME] and Mr [NAME]) held the views Mr [NAME] said they did. It is unnecessary to conduct any detailed forensic inquiry into positions [NAME] [NAME] may or may not have taken at [NAME] meetings over a number of years. I had no sense from the evidence of [NAME] [NAME] or Mr [NAME] that their impression was that [NAME] [NAME] opposition was anything [NAME] than genuine. 282 Aside from these general findings, I was not persuaded that much of the cross-examination of [NAME] [NAME] was germane to the material facts the Court needed to decide. The same might be said of much of her evidence-in-chief in her affidavit material: it may be useful, as I have observed, as background and context, but that is all. 283 The oral evidence of Mr [NAME] and [NAME] [NAME] was somewhat more problematic. That is not because I found either of them to lack credibility, but there were elements of confusion, and reluctance, in their evidence. In her oral evidence, [NAME] [NAME] was reluctant to talk about her own role in [NAME] decision-making, or about the role of others. She was reluctant to confirm her ability to recall very much. I did not take this reluctance as affecting her credibility, but rather as a sign that she was very uncomfortable about giving oral evidence, and being in the spotlight. However in her affidavit she clearly stated that she did not agree to the grants of the impugned [NAME] and she did not agree to the [NAME] at the [COMPANY] meeting making decisions about [NAME]. She was not directly challenged on this evidence in cross-examination, and what cross-examination there was related to what she may or may not have told Mr [NAME], which is not necessarily the same matter as her own opinion about the impugned [NAME]. 284 Mr [NAME] initial evidence was affected by hearing difficulties, but once those were resolved, he gave evidence in quite an adamant fashion. He also started giving his oral evidence in [NAME] but ended up giving evidence in English once his hearing difficulties were resolved. He had no difficulty in using English so far as I observed. His oral evidence was very clear. He stated that he did not want [NAME] making decisions "for us [NAME] on what we can do on our own land". He denied that Mr [NAME] spoke to him about the [COMPANY], council, [NAME], and denied that he conveyed his agreement to Mr [NAME], saying "he decided himself without asking me anything". Indeed, his evidence was: "He's tried to [speak to me] many of times but I kept ignoring him" 285 Mr [NAME] insisted the letter he wrote, protesting about the decision, was his "business", his decision, and that he did it for himself. In that letter, which he identified in the witness box, and which he said he wrote on 12 October 2016 (although I note the letter itself is dated 16 October 2016) he stated: I, [NAME], Give my notice of resignation to the Imwernkwernhe Council Limited as I have been misled by fellow members on certain matters which I did not agree on. Also I would like to concentrate on my own Homeland works management at [NAME]. I do not remember giving any permission to use my name for the decision on the 40 year old lease to [NAME] which I do not agree with (12/10/2016). I would like to confirm the next [NAME] of [NAME], are as follows: [NAME] of [NAME]. Signed, [NAME]. 286 I note there was evidence from [NAME] that he had spoken to [NAME] the day before the 12 October 2016 meeting by telephone. [NAME]'s evidence was that Mr [NAME] had said to him that he would agree with any decision that was made by the senior men who attended the meeting on 21 September 2016, which he had also attended. Mr [NAME] was challenged on this account in cross-examination. 287 More importantly, Mr [NAME] was not cross-examined by [NAME] about what Mr [NAME] said. When asked whether he knew Mr [NAME], Mr [NAME] said "no" and that he "wouldn't know him if I bumped into him". In contrast, Mr [NAME] indicated that he did know [NAME] [NAME], and had been out on camping trips with her "plenty of times". From what I saw of Mr [NAME] in the witness box, and from his contemporaneous letter, the position described by Mr [NAME] would seem an inconsistent one for Mr [NAME] to have taken. It is not necessary to reach a concluded view whether, for example, Mr [NAME] may have been confused about who he was speaking to (if it was telephone call), or Mr [NAME] may have misunderstood what Mr [NAME] said to him (if they did speak), or whether Mr [NAME] misunderstood what he was asked. The absence of any cross-examination of Mr [NAME] on this leads me to assess his evidence as he presented it to the Court, and on the basis of how it was tested. 288 I accept that Mr [NAME] maintained opposition to the grant of the impugned [NAME] to the respondents at the time of his evidence. I am unable to make a finding whether Mr [NAME] and Mr [NAME] accurately conveyed Mr [NAME] position at the 12 October 2016 meeting. As I noted, Mr [NAME] had changed his mind about the competing proposals at an earlier stage. [NAME] also did. Perhaps he then changed it back again before he gave evidence. [NAME] can, and are entitled to, change their minds on whether they agree or disagree with a proposal. As Mr [NAME] noted, many factors may be at work in deciding to agree or disagree. Mr [NAME] was not cross-examined about any of this. Nor were Mr [NAME] and Mr [NAME] cross-examined about what they said in the meeting about Mr [NAME] position. 289 The evidence remains in a state of uncertainty, with many inconsistencies. The applicants have not discharged their burden of proving there was any material inaccuracy in the information provided to the [NAME] (whether by omission or otherwise) concerning the views of Mr [NAME] and [NAME] [NAME] about the impugned [NAME], as at 12 October 2016. Further, whether or not Mr [NAME] and Mr [NAME] were inaccurate in conveying Mr [NAME] views is not determinative of the grounds of review advanced, for reasons I develop below. 290 What Mr [NAME] evidence about his continuing opposition to the impugned [NAME] does demonstrate is that there was – at least at various times – a division of opinion amongst [NAME], including some with seniority. The same is true of [NAME] [NAME] evidence, although I note she subsequently authorised the affixing of the [NAME] seal to some of the impugned [NAME]. These positions of these senior [NAME] were capable of being relevant for the [NAME]'s decision whether, as a group, the [NAME] consented. I return to this in my consideration of the grounds of review.

Mr [NAME] role 291 In his affidavit, Mr [NAME] describes how the conclusion about the consent of [NAME] was arrived at: Following what [NAME] said, [NAME] told me that in her opinion the right senior [NAME] had made a valid decision to grant [NAME], that they had given their consent and made the decision, as a group, according to their [NAME] decision-making processes. 292 Mr [NAME] then describes how he went back to [NAME] offices, told [NAME] [NAME] what had happened, and was asked by her to provide a file note of the meeting so she could prepare an agenda item for the upcoming [NAME] [NAME] meeting on 19 October 2016. Mr [NAME] provided his file note to [NAME] [NAME], who prepared an agenda paper. Mr [NAME] separately prepared an "Information paper" for the purposes of the [NAME] meeting. [NAME] [NAME] agenda paper and Mr [NAME] paper were sent to the [NAME] ahead of the 19 October 2016 meeting. Mr [NAME] own file note was not sent to the [NAME]. 293 In her [NAME] affidavit, [NAME] [NAME] deposes to the correspondence the [NAME] received from [NAME] about the impugned [NAME]. It will be recalled that the key meeting of [NAME] occurred on 12 October 2016. 294 On 14 October 2016, Mr [NAME] sent [NAME] [NAME] of [NAME] an email. It was copied to [NAME] [NAME] at [NAME]. Mr [NAME] wrote: I refer to the applications by the [NAME] for [NAME] at the [NAME] within the [COMPANY]. I'm pleased to advise that following consultations with [NAME] of the [COMPANY] earlier this week that consent was given, in the terms of the proposals provided by the [NAME], for [NAME] over the following lots: • Lot 88 – [NAME] [COMPANY] • lots 95, 189 and 190 – sewerage treatment works and associated facilities With regard to the sewer rising main pipeline replacement program I advise that consent was given for these works to proceed and that a [NAME] and a Consent to Construct is expected to be forwarded to you shortly. I seek your advice as to the relevant form of tenure over these works including whether they should be the subject of a lease or some [NAME] arrangement. I also advise that [NAME] will meet next Wednesday, 19 October 2016 and it is expected these matters will be presented to that meeting for ratification. If your office is able to provide draft [NAME] following the usual template by Tuesday 18th [NAME] will endeavour to, absent any issues arising, to have those [NAME] executed by [NAME] signatories at that meeting. Please do not hesitate to contact me if you have any queries or if I can be of any further assistance. (Emphasis added.) 295 On the same day, and two hours after Mr [NAME] email to [NAME], Mr [NAME] also sent an email to Mr [NAME], advising him that the [NAME] proposal "was not accepted" at the 12 October 2016 meeting, but that the [NAME] "looked forward to the receipt of any further leasing proposal or proposals from [NAME] in the near future, particularly in regard to [NAME]'s apparent interest in service provision to the [NAME]." Mr [NAME] wrote back on the same day to contest Mr [NAME] assertion that any decisions had been made at the 12 October meeting. 296 On 18 October 2016, and one day prior to the [NAME] meeting, Mr [NAME] responded to Mr [NAME] by email. Mr [NAME] stated: I advise that the Central Land Council ([NAME]) will continue to exercise its statutory duties under [NAME] ([NAME]) Act and will do so in accordance with the instructions received from [NAME], in this instance on 12 October 2016. [NAME] is satisfied that the consents provided by the [NAME] on 12 October 2016 were validly given. [NAME] has considered your request for 8 weeks prior notice of any direction that may be given by [NAME] to the [COMPANY] in respect of the grant of an estate or interest in that land but in the circumstances considers such a request unreasonable. (Emphasis added.) 297 As the applicants correctly submit, in this correspondence, Mr [NAME] purports to inform the [NAME] and Mr [NAME] and his [NAME] that consent has been given, and "validly" given, although that was not a matter for him to decide in relation to [NAME]. That was a matter for the [NAME], as a delegate of the Land Council. It is also instructive, as the applicants submit, that Mr [NAME] characterises what would occur at the [NAME] meeting on 19 October 2016 as "ratification" of what he asserts occurred at the meeting. In a later email to the Land Tenure Unit of 21 October 2016, Mr [NAME] describes what occurred at the 19 October 2016 meeting as "approv[al]" of the impugned [NAME]. These key aspects of Mr [NAME] correspondence are somewhat at odds with the scheme of s 19 of the [NAME]. 298 For the purposes of this proceeding however, Mr [NAME] correspondence is not the end of the matter. The question for the Court is what the [NAME] did on 19 October 2016. If on that date [NAME] acted in accordance with the [NAME] and gave a lawful direction, then Mr [NAME] unfounded and misconceived correspondence to the [NAME], and to Mr [NAME], would be of no consequence.

The application of s 77A of the [NAME] 299 Section 77A is a key provision in the legislative scheme. Only the applicants' written submissions expressly referred to s 77A, but in the context of a description of the scheme, including of the consent "as a group" requirement in s 19(5). 300 None of the parties addressed the operation of s 77A in terms of the decision-making of the [NAME] in relation to the decision at the 12 October 2016 meeting at the [COMPANY]. 301 So far as I have been able to ascertain, none of the material in evidence, from [NAME] [NAME] and Mr [NAME], delineates which of the two (alternative) methods set out in s 77A had been employed, or whether a different method had been employed, noting that s 77A does not purport to be exhaustive of the methods of decision-making adopted. Rather, it provides for a deemed outcome (by the use of the words "shall be taken to") if either of the methods [NAME] in the provisions are employed. The only possibly relevant evidence is from Mr [NAME] during cross-examination, where he stated: And so if the decision was to be made about a proposal for a [NAME]-term lease, it would be your view consistent with your understanding of the relevant [NAME] law, if I can put it that way, that a decision to consent to the grant of a [NAME]-term lease of land would usually require the relevant [NAME], the [NAME] and [NAME], to get together, discuss and agree?---Yes. 302 That evidence only refers to Mr [NAME] understanding of the usual practice; it does not refer to which of the methods under s 77A were engaged at the [NAME] meeting in particular. 303 The absence of any evidence, or concessions, about whether either of the methods set out in s 77A were engaged in the decision-making that culminated in the 12 October 2016 meeting is problematic. 304 A principal problem is that it makes the [NAME] decision more difficult to assess. [NAME] was not directed to the terms of s 77A in the meeting papers, nor to how it was said to apply to the [NAME] decision. Nor was it directed, for that matter, to how s 77A applied to the [NAME] four communities over whose land it was proposed to grant [NAME]. 305 It would appear, from the evidence, that an assumption was made that some kind of [NAME] decision-making process was to be undertaken. I infer that from the emphasis placed by [NAME] [NAME] on whether the "right" elders and [NAME] had agreed. [NAME] [NAME] own evidence would also seem to assume this was the process, as would the extract from Mr [NAME] cross-examination. However, s 77A(a) has a curious feature, to which no attention had been paid in this proceeding, and that is that it applies where a decision of a particular kind must be made in accordance with a [NAME] process. There was no evidence whether that was the case in relation to a decision about the impugned [NAME], but again perhaps it was assumed. 306 No party appears to have paid much attention to the terms of s 77A and how those terms operated in relation to the decision-making under scrutiny here. Had I otherwise been inclined to uphold one or more of the applicants' grounds of review in relation to the challenge to the formation of [NAME]'s satisfaction, this issue would have had to be addressed, and determined, before any final decision could have been made about the relief.

What the [NAME] was given, and what it was told 307 [NAME] [NAME] was not cross-examined, and her affidavit evidence can be accepted as reliable, as far as it goes. 308 She deposes that the [NAME] had the following papers before them at the 19 October 2016 meeting: (1) Agenda for the [NAME] meeting on 19 October 2016 being meeting no EX2016.07 (2 pages) marked MW1.1. (2) Executive Meeting Agenda Item Paper prepared by [NAME] for Resolution No. EX2016.07.170 (25 pages) marked MW1.2. (3) Proposed Resolution No EX2016.06.170 with the same subject title as the previous document (11 pages) marked MW1.3. (4) Executive Agenda Item Information Paper prepared by [NAME] with subject title "[NAME] - update on leasing matters and activities of [COMPANY]" (6 pages) marked MW1.4. 309 It should be noted that the terms of the proposed resolution for the giving of directions under s 19 (without any further delineation between subsections) therefore been formulated in advance, not only to the [NAME], but also to the [NAME] of the [NAME] four communities whose land was the subject of proposed grants on the 19 October 2016 [NAME]. 310 [NAME] [NAME] then deposes that each of those documents was "provided" to the members of [NAME] "in advance of the meeting". The applicants pointed to a reference in Mr [NAME] paper about an email from [NAME] to Mr [NAME] "late yesterday afternoon", which the evidence reveals to be an email sent by [NAME] at 5 pm on 18 October 2016. The applicants submit, and I am prepared to find, that this means the meeting papers were not completed until some time after 5 pm on 18 October 2016. On the evidence, the meeting commenced at 8.59 am on 19 October 2016. 311 [NAME] [NAME] does not depose to how the meeting papers were "provided" to the [NAME]. Plainly, there was insufficient time to post them. There is no evidence whether the papers were emailed, hand-delivered, or handed to the members just before the meeting. 312 There is no evidence in this proceeding from any members of [NAME]. I have set out the members of [NAME] as at 19 October 2016 at [85]-[86] above. On any view, the [NAME] had a small window of opportunity to read and digest the papers, if the papers were not completed until the evening prior to the meeting. 313 [NAME] [NAME] exhibited the documents provided ahead of the meeting, and the minutes of the 19 October 2016 meeting, to her affidavit. She deposes [NAME] confirmed those minutes as accurate when it met in December 2016. 314 Both the agenda papers and the minutes were the subject of close attention during the hearing. 315 The agenda papers disclose the following explanatory documents dealing with the various s 19(5) resolutions. [NAME] [NAME] briefing paper on the proposed s 19(5) directions for [NAME] communities was set out over two pages. Her paper identified the communities, set out the relevant part of s 19(5) of the [NAME], and set out a meaning of the phrase "interests in land". She then stated the following: For a decision to be made there must be satisfactory attendance by and consultation with the [NAME]. With reference to the schedules attached, [NAME] has consulted with the [NAME] who have instructed [NAME] that they consent to each grant on the key terms and conditions as shown. In the case of Yuendumu, Haasts Bluff, [NAME] and [NAME] the only affected community is the community in which the grant is proposed to take place. Many of the [NAME] are also members of the affected community. [NAME] held each meeting in either the affected community (Yuendumu, [NAME]) or within close proximity to the affected community with transport to the meeting for community members provided by [NAME] ([NAME] – [NAME]). In the case of Lajamanu, consultations with the [NAME] were conducted in Kalkarindji as this is where the majority of [NAME] live. Further public notices were also sent to Lajamanu and community [NAME] were invited to present their views to [NAME]. 316 The "attached schedules" set out the lease details for each proposed lease in each community. For the [NAME] [NAME] (including the licence) the table [NAME] a lease period of "40 years (12 + 28)" for each lease except the [NAME] lease, for which a period of 12 years was [NAME]. A short summary of the terms and conditions of [NAME] was also provided. 317 Mr [NAME] paper is noted on the meeting agenda as "information only" and was six pages [NAME]. It is headed "Information paper". It sets out the history of the claims by [NAME] against the [NAME] and the MacDonnell Regional Council, the settlement of that litigation, and the payment of a sum of money ($1.4 million) into trust, to be held on behalf of the community. It then describes a series of events thereafter, including [NAME]'s conduct in relation to charging rent for community houses, and [NAME] matters, which, it is fair to say, are set out in this document from [NAME] perspective. [NAME] [NAME] made it clear in her evidence she had a different perspective on what [NAME] had done. 318 Mr [NAME] paper also describes the September and October community meetings. The relevant part of that description is as follows: Those [NAME] that could not be present [at the 12 October 2016 meeting] told [NAME] that they were aware of and agreed with the decisions made at the meeting on 21 September 2016 and agreed that the [NAME] were the right [NAME] to make decisions about the [NAME]. As with previous meetings [NAME], licences and interests for consideration included: • [NAME] and licences to MacDonnell Regional Council – council office, workshops, parks etc; • [NAME] to the [NAME] – [COMPANY] & sewer farm; • A lease to [NAME] – [NAME]; and • A lease of the whole of the [NAME] to [NAME] for 99 years & 2 99 year extensions New matters for consideration included: • Approval of [NAME] township survey plans; • Approval of upgrades to the town sewer works; • Approval of upgrades to up to 50 houses at [NAME] (and associated [NAME] lease); • Consideration of the [NAME] issues; and • [NAME] charging [NAME] a "poll tax" by way of rent on the houses in which [NAME] has no legal interest. [NAME] representatives at the meeting advised that (a) at least 8 [NAME] had resigned from [NAME] in recent weeks, and (b) that the [NAME] representatives would not vote or consider any proposal for a lease or licence then [NAME]'s proposal. Following staff presentation on these matters and an adjournment for lunch the [NAME] asked all [NAME] and [NAME] to leave the meeting so that [NAME] could consider the matters. After about 40 minutes staff were asked to return to the meeting to answer a number of questions. [NAME] then advised [NAME] that they consented to [NAME] and licences to the MacDonnell Regional Council, to the [NAME] and [NAME] and to the application by the [NAME] for a [NAME] application to allow the correctly surveyed Lots in the town to be approved, so as to allow for [NAME] longer than 12 years. They wanted [NAME] to pursue further negotiations – as a matter of urgent priority – with both the Commonwealth and NT governments in relation to the [NAME]-overdue [NAME] upgrades and maintenance issues at [NAME] that present real safety issues for [NAME] and their [NAME]. They also expressed grave concerns about the administration by [NAME] of an inequitable and poorly managed [NAME] rental arrangement that was unlawful. [NAME] rejected the [NAME] proposal but instructed [NAME] that when [NAME] was advised of their decision that they should also tell [NAME] that the [NAME] wanted to consider any future proposals that [NAME] may have for [NAME], particularly in relation to service provision. 319 The version of the minutes prepared after the meeting contained large redacted sections, which counsel informed the [NAME] matters of no relevance to this proceeding. The minutes contain the impugned direction given to the [NAME] under s 19(5), which was in the following form. It was a single resolution covering all [NAME] communities. Resolution No: EX2016.07.170 SUBJECT: The grant and transfer of various interests in land pursuant to section 19 of [NAME] ([NAME]) Act 1976: Lajamanu, Yuendumu, Haasts Bluff, [NAME] communities [COMPANY] [COMPANY]; [COMPANY]; [COMPANY]; [COMPANY]; [COMPANY] [NAME] [NAME] 3: [NAME] 4: [NAME] 5: [NAME] 1: [NAME] and [NAME]: None Proposed Resolution: The Central Land Council ([NAME]) being satisfied that the provisions of section 19(5) of [NAME] ([NAME]) Act have been satisfied: DIRECTS each [COMPANY] to grant an interest in land to the named person or entity (the [NAME] or Licensee) over the areas identified in the agreement (the Premises) on the terms approved by the [NAME] as shown on table 1. below; Table 1. File no. Agreement type [COMPANY] [NAME]/Licensee … … … … … [NAME] 2015/62 Lease Lot 88 [COMPANY] [NAME] – Department of [COMPANY] 2015/61 Lease Lots 95, 190 and 189 [COMPANY] [NAME] – [RESPONDENT] 2014/542 Licence Lot 79, 182, 188 and public spaces [COMPANY] 2014/541 Lease Lots 61, 162 and 187 [COMPANY] 2012/507 Lease Lot 60 [COMPANY] [COMPANY] … … … … …

and RESOLVES to: a) authorise the [NAME] to affix [NAME] common seal to and sign each agreement on behalf of [NAME]; b) authorise the [NAME] to affix the common seal of each [COMPANY] to and sign each agreement on behalf of each [COMPANY]; c) authorise the [NAME] of [NAME] to sign the written direction to each [COMPANY]; d) consent to the [NAME] or Licensee transferring his or her interest or granting a sublease, licence, residential tenancy or right of access in accordance with each agreement; and, e) receive into its Land Use Trust Account any rental payments owed to each [COMPANY] under each agreement and to allocate these funds in accordance with the instructions of the [NAME]; … MOVED: [NAME]: 6 SECONDED: [NAME]: 9 MOTION PASSED Submitted and presented by: [NAME]: Legal Unit 320 After the record of who moved the resolution and who seconded it, the minutes then record that one [NAME] "left the meeting at 2.40 pm". It is plain this resolution occurred then before 2.40 pm. 321 The agenda records that the discussion and [NAME] in the [NAME] communities, along with [NAME] agenda items related to leasing, was scheduled for 1.30-2.45 pm. Two of the four items [NAME] [NAME]: namely [NAME] [NAME] paper and the proposed resolutions, and Mr [NAME] paper. 322 Sequentially – and a matter on which the applicants place some reliance – the minutes later record that Mr [NAME] briefing paper was noted and a "brief discussion held". However, as the applicants submit, and I accept, an inference can be drawn that this occurred after the s 19(5) resolution had been made. [NAME] does not contend otherwise. 323 What is unknown, because of the absence of any [NAME] member from this proceeding, is whether any or all of the [NAME] had read [NAME]'s Information paper before voting on the resolution I have set out above. Neither Mr [NAME] nor [NAME] [NAME] attended the meeting, and [NAME] [NAME] gave no evidence about the meeting itself. [NAME] [NAME] also attended the meeting but gave no evidence about what occurred. 324 [NAME] submits the Court should infer the [NAME] read all of the papers before voting on the resolution, including [NAME]'s paper. It submits the applicants have the burden of proving otherwise. 325 I am not prepared to draw the inference for which [NAME] contends. There is no evidentiary basis to infer the [NAME] (or some of them, and if so which ones) read the papers about the resolutions ahead of the meeting, let alone read "all" of them. There is no evidence, for example, whether instead the issues were simply discussed orally at the meeting. That is especially so given the finding I have made that the papers were not even complete until after 5 pm the evening before, and there is no evidence before the Court about how the [NAME] received the papers. [NAME] [NAME] could have given that evidence, but nobody asked her. She also took the minutes at the meeting, according to her affidavit, and could have been asked about what happened at the meeting. She was not required for cross-examination, and no evidence-in-chief was adduced on this matter. The parties each made a forensic decision about how they wished to leave the state of the evidence. They have left it in a state of uncertainty. [ADDRESS] cannot make a finding one way or the [NAME] about what the [NAME] did, or did not do, with the papers before them. Likewise, there is an insufficient evidentiary basis to accept the applicants' submission that because the resolution occurred before the Information paper was tabled, none of the [NAME] had read the Information paper, and none of them took it into account in deciding how to vote on the resolution, and therefore in forming the requisite state of satisfaction for the purposes of s 19(5) of the [NAME]. 327 The applicants have the burden of proving the [NAME] did not form the requisite state of satisfaction under s 19(5). They have the burden of proving what information was or was not considered by [NAME] in forming that state of satisfaction. 328 They have failed to prove on the balance of probabilities that the [NAME] did not read or consider both [NAME] [NAME] statement and Mr [NAME] paper. That does not mean, as I have noted above, that I accept [NAME] submissions that I can infer they did read all the papers. The state of the evidence precludes a finding one way or the [NAME]. However given the burden lies with the applicants, they have not proved the negative fact they sought to establish.

Fact finding on the seal affixing argument 329 I have set out most of the relevant facts at [162]-[164] above, and they are not in dispute. I find those matters proven. 330 [NAME] [NAME] is a senior [NAME] assistant with [NAME]. Her evidence is that her usual practice is that she does not affix seals to documents until she has "all of the relevant authorities to affix the seals". She attended the 19 October 2016 [NAME] meeting, although it was the first one she had attended. On that day, her evidence was that, "[c]ontrary to my usual practice", she affixed the seals of the [NAME] and [NAME] to the impugned [NAME] "although at that time there was no separate authority from the members of the Trust". 331 At some time prior to 11 November 2016, [NAME] [NAME] prepared the authorities from the [NAME] which are in evidence, and which purport to authorise the affixing of the seal of the [NAME] to the impugned [NAME]. These documents were signed on 11 November 2016 by three of the then newly appointed members of the [NAME]. The authorities are undated but [NAME] [NAME] evidence establishes the date on which they were signed. However the signed authorities were addressed to the [NAME] of [NAME]. 332 Thus, three relevant facts can be found: (1) When the seals were affixed on 19 October 2016, there was no existing authority that purported to accord with s 4(5) of the [NAME]. (2) On 11 November 2016, when authorities expressed to be pursuant to s 4(5) of the [NAME] were signed by three newly appointed members of the [NAME] ([NAME] and [NAME] – a combination of three of these four members variously signed each of the authorities), the authorities in express terms were directed only at the [NAME] of [NAME]. (3) [NAME], who affixed the seals on 19 October 2016 was not, on 19 October 2016, the [NAME] of [NAME] or an executive member of [NAME]. Nor has she held either of those positions since 19 October 2016.

The applicants' challenge to the [NAME] decision (Grounds 1-6)

Formation of the satisfaction required by s 19(5): Grounds 1 and 2 333 [NAME] made the following submission about the Court's task in relation to a provision such as s 19(5), where an applicant impugns a state of satisfaction required by a statute to be formed: In terms, s 19(5) is conditioned by an opinion (satisfaction) about the matters [NAME] in the sub-section, not their objective existence. As such, a legal challenge will not concern the objective existence of the subject matters. The resolution set out in the leasing paper and minutes, and the direction scheduled to the written agreements, records the state of satisfaction required by s 19(5) that conditions the giving of a direction under sub-ss 19(3) and (4A). A challenge must proceed on the basis that the Act requires the opinion (satisfaction) to be properly formed; satisfaction will not be achieved if the repository of the power misdirected itself in law, failed to consider matters required to be considered or took irrelevant and forbidden matters into account, or reached an opinion that was not reasonably open, or otherwise committed vitiating error, for example, by acting in a manner that is procedurally unfair. (Footnotes omitted.) 334 That may be accepted as an accurate summary of the correct approach to Grounds 1 and 2 of the application, both of which challenge the formation by the [NAME] of the requisite state of satisfaction for the purposes of s 19(5) of the [NAME]. It should also be accepted, as a starting proposition, that a Land Council can be provided with a summary of information, prepared by its officers and employees, which it can use for the purposes of forming its satisfaction. There are limits and qualifications to that principle: see generally [NAME] v [NAME] Protection [2017] FCAFC 107; 347 ALR 173 at [61]. The applicants did not dispute this as a general proposition and some of their specific arguments reflected the qualifications set out by the [ADDRESS] in [NAME]. 335 To reiterate the key points which emerge from the legislative scheme established by this part of the [NAME]. The land in question is [NAME] land. It belongs, and is recognised as having always belonged under [NAME] law and custom, to those [NAME] who are, as a group, identified as, and established to be, the [NAME] of that land. Those [NAME] hold title to the land communally, through the statutory vehicle of [COMPANY] which is the entity identified by the scheme as the "owner" and therefore the entity that, in law, deals with the land. However, the [COMPANY] does so avowedly in exercise of obligations to the [NAME] for whose benefit the land is to be held. Whether the [NAME] creates what equity will recognise as a trustee and beneficiary relationship, and whether the [COMPANY]'s obligations are properly described as fiduciary would appear to remain unsettled. In [NAME] and [NAME] said at [128]: It is unnecessary for present purposes to determine whether the use in s 4(1) of the phrase "for the benefit of" indicates a legislative intention to create trusts in the strict sense or to create a lesser form of statutory regime with some characteristics of a trust. (Footnote omitted.) 336 See also [NAME] v Northern Land Council [2015] FCA 36 at [89] ([NAME]), extracted at [467] below. 337 The recognition that the title is communal, or collective, inheres in the approach taken by the [NAME] to dealings with the land: consent or agreement is given by "the group", not by individuals. Moreover, it is given "as" a group. This language does not imply unanimity, but it does imply a sufficient level of endorsement, or (to return to Mr [NAME] evidence) a preparedness to abide a decision of others, even if there is some disagreement. Section 77A of the [NAME] may operate on the way in which [NAME], as a group, are able to reach agreement, or are to express their agreement for the purposes of the Land Council's consideration under, amongst [NAME] provisions, s 19(5). By s 77A, the [NAME] does not require a decision-making process in accordance with [NAME] law and custom (unless, at least on one construction, the decision to be made has a particular character), although such a process is one of the two expressly contemplated methods. 338 The terms of s 19(5), read in the context of the scheme of the Act and the reality of [NAME] land being held (and used, and dealt with) for the benefit of those [NAME] who are the [NAME] of it, and their communities, and read with s 77A, make it clear that a process of decision-making must be adopted, and must be followed. Thereafter, [NAME] must be satisfied that, as a group, and as a result of that process, there is [NAME] consent to the proposed dealing. Consent means a positive state of agreement. 339 Despite the considerable amount of evidence in this proceeding, as I have noted, there was no specific evidence about which process under s 77A applied, and had been applied. 340 [NAME] [NAME] and Mr [NAME] seemed to have assumed it was a process under s 77A(a), but there is no evidence as to why a decision of this kind was required to be decided in accordance with [NAME] law and custom. This is an express requirement for s 77A(a) to apply. 341 Nor was there any specific evidence from [NAME] about the process they considered they had adopted and whether it fitted within s 77A(a) or (b). Again references to seniority and who had authority to decide, as well as [NAME] [NAME] evidence to which I have referred at [247]-[248] above, might suggest the [NAME] also assumed the process was the one described in s 77A(a), but why it needed to be so was not explained in the evidence. 342 On balance, I am prepared to infer that it was the case that [NAME] [NAME] law and custom required decisions about the impugned [NAME] to be made in accordance with that law and custom. A principal reason for my preparedness to draw this inference is the weight [NAME] [NAME] placed in her own evidence on the decision-making structure within [NAME] law. In [NAME] words, it was her assumption also that this structure would apply to decisions about the impugned [NAME], even if she had a different perspective on what [NAME] law and custom required. The same is true, to a lesser extent, of Mr [NAME] evidence. 343 Therefore, the [NAME] was required to be satisfied that a decision-making process in accordance with [NAME] [NAME] law and custom had occurred, and had resulted in the consent of [NAME], as a group. There is, however, a role for s 77A in the formation of this state of satisfaction. On one view at least, the effect of s 77A on s 19(5) is that [NAME] needs to be satisfied the decision was taken in accordance with [NAME] tradition. If so satisfied, s 77A(a) deems consent as a group to have been given. That is a further difficulty for the applicants' case. 344 The applicants relied on the description given by [NAME[NAME] in [NAME] v [NAME] and Citizenship [2012] FCA 478. That was a case about a visa criterion concerning whether the Minister (or his delegate) was satisfied there were compelling reasons for not requiring [NAME] criteria to be met. In that context, [NAME] emphasised (at [19]) the need for there to be consideration by the delegate that involved an "active intellectual process" so that the circumstances before the delegate received the decision-maker's "genuine consideration". At [20], [NAME] said: In [NAME[NAME] stated at 476 that to "consider" required the decision-maker to apply "his own mind to the issues raised". The decision-maker may be assisted by others to collect the relevant facts but it is the decision-maker's task to "evaluate" them. Whilst an [NAME] decision-maker must exercise his or her own judgment, not every step in the decision-making process must be personally done by him or her. Reliance may be placed on facts found by others (such as advisers to a Minister), provided that the decision-maker acts on the basis of an accurate summary of the relevant evidence and submissions upon which the facts have been found: [NAME] (No 1) [COMPANY] v Commissioner of Taxation (2003) 126 FCR 304 at [116] ([NAME]) approved on appeal Commissioner of Taxation (Cth) v [NAME] (No 1) [COMPANY] (2004) 137 FCR 146 at [217]–[218] ([NAME], with whom [NAME] and [NAME] JJ agreed). 345 I respectfully agree with that passage from [NAME]'s judgment in [NAME], at the level of general principle. The two critical factors are that the decision-maker exercise her or his own judgment in forming a state of satisfaction and, [NAME], that information relied on by a decision-maker is in all material aspects accurate, so that the decision-maker is not misled if she or he relies on others (as she or he may) to inform her or him of factual matters. 346 There is force in the applicants' submissions that it would pervert the purpose and requirements of s 19(5) and the concept of [NAME] consent if interests in [NAME] land were being divested, or dealt with, on the say-so of persons such as [NAME] [NAME] and Mr [NAME], who have no functions under the [NAME], [NAME] than to provide information to decision-makers such as the [NAME]. For [NAME] to be telling [NAME], a day before [NAME] meeting that [NAME] "is satisfied" about something, is wrong in law and wrong in fact. For Mr [NAME] to be telling [NAME] that [NAME] had been granted and all that needed to occur was ratification by the [NAME] was also wrong in law, and wrong in fact. The slippages in language and message by Mr [NAME] should not have occurred. However I do not consider they have the sinister complexion the applicants suggest. Those slippages are likely to have reflected Mr [NAME] experience about how the [NAME], when informed of a decision by [NAME], would generally act in accordance with the [NAME] group decision. In my opinion, what Mr [NAME] described as already having happened is what he genuinely expected was going to happen: indeed, what his experience taught him would occur. 347 It can be seen that although the applicants' submissions have force in the abstract, I do not accept they have proven this is what occurred on 12 October 2016, flowing through to 19 October 2016. The interests created by the direction to grant [NAME] did not occur on the "say-so" of Mr [NAME] or [NAME] [NAME]. They occurred because, I infer, the [NAME] accepted what it had been told about the agreement of the [NAME], as a group, on the basis that the decision was made under [NAME] law. How much inquiry and discussion occurred, or how much thought occurred, amongst the [NAME], is unknown. The applicants did not contend [NAME] was unable to use its knowledge and expertise to determine the issues before it: see [NAME] at [58] ([NAME]), referring to Repatriation Commission v Strickland (1990) 12 AAR 343 and Szelagowicz v Stocker (1994) 54 IR 302 at 306. 348 The applicants have not proven the decisions were taken without genuine thought or consideration. To adopt the language of [NAME], they have not proven there was an absence of active intellectual consideration by the [NAME], or a failure by the [NAME] to apply their own minds to whether the [NAME], as a group, consented to the impugned [NAME]. The applicants could have asked, but did not, for reasons for the [NAME]'s decision to give a direction to the [NAME]. They could have called members of the [NAME] to give evidence and explain why they reached their decision. They did not. There is simply no evidentiary basis on which the Court can infer there was no thought, no analysis, no consideration or no discussion by the [NAME]. 349 It is to be recalled that each of the [NAME] is [RESPONDENT], and representative of [NAME] regions, including a region covering [NAME]. These [NAME] are answerable to their communities and constituencies. They can be taken to understand how [NAME] decision-making processes work, and how group decision-making processes amongst [NAME] are generally conducted and concluded. It can be inferred they will all have experienced such processes in their own communities. They can be taken to understand hierarchies and seniorities within [NAME] [NAME] law and custom. They may be likely to know personally some, or many, of the individuals involved in [NAME] decision-making processes. They may have some familiarity with the [NAME] law and custom that governs the decision-making they are assessing. Indeed they may be related or connected to some of the [NAME] who made the decision. That is part of why the [NAME] insists, in its scheme, that [NAME] constitute [NAME]. 350 Ground 1 of the application must therefore fail. I am also satisfied that had appropriately closer attention been paid by the parties to the terms of s 77A, it would have been clear that the applicants' grounds needed to be differently formulated, to take account of the deeming effect of s 77A. 351 That leaves the [NAME] part (Ground 2) of the applicants' argument about how the satisfaction of the [NAME] miscarried: namely that it had inaccurate information before it, which it can be taken to have relied upon. The information was said to be inaccurate because it was incomplete. It is contended the [NAME] was not informed about the opposition to the grant of [NAME] by [NAME] [NAME] and those who supported her position. Nor did it record her objections to what occurred at the 12 October 2016 meeting or her insistence about who needed to be present, such as Mr [NAME]. Nor was [NAME] told about precisely which of the [NAME] attended the meeting and which did not. It also appears to be suggested that the information was inaccurate because [NAME] [NAME] and Mr [NAME] did not, in fact, agree to the grant of [NAME]. 352 I note that information at this level of detail was not supplied for any of the [NAME] communities which were the subject of consideration at the 19 October 2016 meeting by the [NAME]. 353 Two documents must be considered in resolving these contentions. The first is the Agenda Item paper prepared by [NAME] [NAME]. 354 This paper sets out [NAME]'s task under s 19(5), and then summarises [NAME] [NAME] description of what [NAME] must be satisfied of – "satisfactory attendance by and consultation with the [NAME]". [NAME] [NAME] then informs [NAME] that this occurred for each affected community and the [NAME] "have instructed [NAME] that they consent to each grant…". There was then a table with the key details of each lease proposed for each community, and advice from [NAME] [NAME] that the terms of each lease were reasonable, and a brief explanation as to why. The terms of a resolution for each set of [NAME] for each community were then attached. 355 [NAME] [NAME] paper covers [NAME] in all [NAME] communities, and does so in common form, but with particular references to some details for particular communities. However it is silent, for example, on the actual course of each meeting for each community where [NAME] consent is said by [NAME] to have been given. In [NAME] [NAME] paper, [NAME] is not treated any differently to the [NAME] four communities in this respect, in terms of the information placed before the [NAME]. 356 On the text of [NAME]'s paper, it may be possible to accept the information given to [NAME] was incomplete. There was no mention of opposition within the [NAME] group. There was no reference to the absence of Mr [NAME], [NAME] [NAME] (or Mr [NAME] or Mr [NAME]). Rather, there is the communication to the [NAME] of the "instruction" of each [NAME] group that they consent. If that was all [NAME] had, and there was no discussion, then it might be doubted [NAME] had enough information to form the requisite state of satisfaction under s 19(5). Again, however, the evidence would still remain in an uncertain and unclear state about whether this was all the information before [NAME]. There is no evidence whether there was any discussion, any questions, any comments about opposing views. The minutes record none, but minute-takers apply different levels of detail. The minutes do record a "brief discussion" after Mr [NAME] paper was tabled. It is not possible for the Court to find as a positive fact that [NAME] acted only on the text of [NAME] [NAME] report. 357 Further, the [NAME] situation was also treated differently in a key respect, and this strengthens my conclusion that the applicants have not proven there was a failure to form a lawful state of satisfaction. Mr [NAME] "Information paper" was provided to [NAME]. No such paper was provided to the [NAME] for any [NAME] community. As I have found above, it is not possible to accept the applicants' submissions, at a factual level, that the timing of the presentation of that paper on the agenda necessarily means the [NAME] had not read it and did not take it into account in forming their state of satisfaction about whether the [NAME], as a group, consented to [NAME]. 358 The purpose of Mr [NAME] paper was to inform the [NAME] about what had been happening in relation to [NAME] over [NAME] land in and around the [NAME] township. The paper traced events back to 2008 and the litigation brought by [NAME] (I take this to mean the [NAME]'s predecessor, [COMPANY], since the [NAME] was established in 2012) against [NAME] and the Council, concerning the amalgamation of what was then a local [NAME] council into a larger shire council. Mr [NAME] paper then sets out the positon adopted by [NAME] about why it should be the entity granted a lease of land in [NAME] township, and the meetings which have occurred. It is fair to say the paper does not present [NAME] in a positive light, and that reflects, no doubt, Mr [NAME] view of these events and perhaps also the view of [NAME]. The paper describes the 12 September 2016 meeting and the 12 October 2016 meeting, including descriptions of what occurred after the 19 October 2016 meeting, and should be set out in full: In mid-September 2016 [NAME] for [NAME] requested that [NAME] arrange for a meeting of that group. That meeting was held on 21 September in [NAME]. At the meeting those [NAME] asked [NAME] to provide information about the leasing proposals for [NAME]. Following consideration of that information - while [NAME] were outside of the meeting room – [NAME] told [NAME] that they: • wanted to enter into negotiations for [NAME] with the [NAME], the [NAME] and [NAME]; • wanted more information from [NAME] in relation to their proposal but that at this time they were not inclined to accept the proposal in its present form – considering that it was for too little money, too [NAME] a period and they did not have sufficient confidence in the administration of [NAME] at present. They also noted concerns that the proposal was inconsistent with [NAME] ([NAME]) Act, particularly in relation to the reasonableness of the proposal. Notwithstanding these concerns they still requested that [NAME] be provided the opportunity to present to the [NAME] in relation to the proposal; • in relation to the [NAME] farm blocks it was agreed that [NAME] approach the occupiers of that land and advise them that they should enter into [NAME] for a period of 5 years in order that land use, occupation and future [NAME] be more appropriately regulated. A further meeting be arranged to consider this issue. [NAME] present noted the request by [NAME] that a further meeting of all relevant [NAME] and affected persons be conducted in the near future preferably at a "neutral" place. On 12 [NAME] arranged for a meeting of [NAME], [NAME] and affected persons and communities at the Chifley Resort in [NAME] in order that they consent to or otherwise consider the lease, licence and [NAME] proposals in relation to the [NAME]. At least 35 [NAME] attended that meeting, including [NAME]. Those [NAME] that could not be present told [NAME] that they were aware of and agreed with the decisions made at the meeting on 21 September 2016 and agreed that the [NAME] were the right [NAME] to make decisions about the [NAME]. As with previous meetings [NAME], licences and interests for consideration included: • [NAME] and licences to MacDonnell Regional Council –- council office, workshop, parks etc; • [NAME] to the [NAME] –- [COMPANY] & sewer farm; • A lease to [NAME] –- [NAME]; and • A lease of the whole of the [NAME] to [NAME] for 99 years & 2 99 year extensions New matters for consideration included: • Approval of [NAME] township survey plans; • Approval of upgrades to the town sewer works; • Approval of upgrades to up to 50 houses at [NAME] ( and associated [NAME] lease); • Consideration of the [NAME] issues; and • [NAME] charging [NAME] a "poll tax" by way of rent on the houses in which [NAME] has no legal interest. [NAME] representatives at the meeting advised that (a) at least 8 [NAME] had resigned from [NAME] in recent weeks, and (b) that the [NAME] representatives would not vote or consider any proposal for a lease or licence [NAME] than [NAME]'s proposal. Following staff presentation on these matters and an adjournment for lunch the [NAME] asked all [NAME] and [NAME] to leave the meeting so that [NAME] could consider the matters. After about 40 minutes staff were asked to return to the meeting to answer a number of questions. [NAME] then advised [NAME] that they consented to [NAME] and licences to the MacDonnell Regional Council, to the [NAME] and [NAME] and to the application by the [NAME] for a [NAME] application to allow the correctly surveyed Lots In the town to be approved, so as to allow for [NAME] longer than 12 years. They wanted [NAME] to pursue further negotiations –- as a matter of urgent priority –- with both the Commonwealth and NT governments in relation to the [NAME]-overdue [NAME] upgrades and maintenance issues at [NAME] that present real safety issues for [NAME] and their [NAME]. They also expressed grave concerns about the administration by [NAME] of an inequitable and poorly managed [NAME] rental arrangement that was unlawful. [NAME] rejected the [NAME] proposal but instructed [NAME] that when [NAME] was advised of their decision that they should also tell [NAME] that the [NAME] wanted to consider any future proposals that [NAME] may have for [NAME], particularly in relation to service provision. On Friday 14th [NAME] advised [NAME] (through their lawyer, Mr [NAME] – see letter below) that [NAME]'s proposal had been rejected by [NAME]. Later that day Mr [NAME] wrote to [NAME] advising that the decisions made by [NAME] in relation to [NAME] were "invalid and of no effect." He advised further that if [NAME] grants [NAME] or licences as instructed to by [NAME] that, unless advised by COB yesterday that it would not proceed, [NAME] will make application to the Court preventing [NAME] from deciding on these matters. [NAME] wrote to Mr [NAME] late yesterday afternoon declining his request to withdraw [NAME] and licences from the Executive Council's agenda. 359 While the focus of Mr [NAME] paper is the position of [NAME], the [NAME] are told about the opposition by members of [NAME] to the impugned lease proposal. I am satisfied it would have been clear to the [NAME] that the [NAME] members were [NAME]: Mr [NAME] paper makes that clear, although I am satisfied it is likely to have been a notorious fact to [NAME], given the nature of the membership of the [NAME]. 360 The [NAME] paper also focuses on the position of [NAME], and the fact that they consented. It refers to the position conveyed on behalf of those [NAME] who could not be present. I return below to the applicants' challenge to the accuracy of Mr [NAME] paper in this respect. 361 I accept, as [NAME] noted in [NAME] at [72], that s 19(5) posits different states of satisfaction for a Land Council as between [NAME] and an [NAME] affected by the grants, and that difference suggests the [NAME] contemplates [NAME] "need to be better informed" about proposals. Aside from one particular argument reflecting Ground 2 of the application, the level of information provided to [NAME] is not a basis for challenge. 362 [NAME] [NAME] a challenge to the formation of the [NAME]'s state of satisfaction under s 27(4) of the [NAME], it is apparent from [NAME] reasons, in particular at [110], that the information provided to the Minister was not of a significantly different character to that provided to the [NAME]. In relation to [NAME] consent and support for the proposals impugned in that case, the information provided in [NAME] was conclusionary, as it was in [NAME] [NAME] paper. There was no equivalent of Mr [NAME] paper in [NAME]. 363 Contrary to the applicants' contention, that does not mean that there has been some impermissible division of statutory tasks into a "hearing function" and a "decision-making function". The decision-maker (here, the [NAME]) retains the whole of the task of forming a state of satisfaction. The area of controversy is all about the nature and quality of the information that must be provided to it. 364 I am not prepared to find the information provided to the [NAME] was so deficient as to cause its formation of satisfaction to miscarry, or to be formed otherwise than in accordance with law. Unless put on notice by particular facts or circumstances, in my opinion a decision-maker in the position of the members of the [NAME] is entitled to rely upon officers and employees of [NAME] to provide information about [NAME] consent, including providing their own report. What Mr [NAME] and [NAME] [NAME] reported could be characterised in different ways. The applicants, consistently with their contentions, sought to characterise it as the opinions or assertions of Mr [NAME] and [NAME] [NAME]. I consider the better characterisation is that each reported what they were told, and what they observed. 365 The evidence is that Mr [NAME] informed Mr [NAME], once the [NAME] came back into the room, that the group consented. As [NAME] [NAME] stated, experience showed the [NAME] that if what Mr [NAME] had said did not reflect the view of the group, [NAME] would have said so. Mr [NAME] report uses the plural: "[NAME] then advised [NAME]" (emphasis added). The evidence is that Mr [NAME] spoke, and purported to speak on behalf of the group. I am satisfied that is how Mr [NAME] was reporting to [NAME] – by using the plural he intended to convey that Mr [NAME] spoke for the group. Mr [NAME] paper specifically reports that those [NAME] who were absent "agreed that the [NAME] were the right [NAME] to make decisions about the [NAME]". As I have noted above the applicants have not discharged their burden of proving this was untrue. 366 On the applicants' submissions, one alternative would be either that the [NAME] would need to attend all meetings of all communities where these decisions are taken, or have transcripts or recordings provided to them. [NAME] alternative is that [NAME], such as [NAME] [NAME], should be required to provide a detailed report to [NAME] about who were the [NAME] in each community at the time consent was given, what the various levels of seniority in accordance with [NAME] law and custom were, what the decision-making process was, who was present and who was not, who gave proxies or had otherwise indicated a position, and then have the [NAME] make up its own mind by a process of fact finding whether there was consent as a group by [NAME]. 367 In my opinion to require such a detailed and prescriptive process such as this (because the applicants' arguments would apply just as equally to the [NAME] four communities the [NAME] dealt with) could undermine the process of [NAME] consent established by the [NAME]. The [NAME] attempts, now more expressly through s 77A, to give decision-making autonomy to communities who are the [NAME] of [NAME] land, and to allow that autonomy to be exercised either in accordance with [NAME] law and custom, or not, as the case may be. It is for the [NAME], as a group, both to formulate their decision-making processes, and then to implement them to reach a conclusion. It is not for someone outside the [NAME] group, such as a [NAME], or a [NAME], to say that a particular individual "must" be present, or "must" agree for there to be consent as a group. Nor is it for anyone else to say that because a particular individual has expressed opposition or disagreement, there cannot be consent as a group from those [NAME]. These are intramural matters within the group. 368 While Land Council employees or officers, such as [NAME] [NAME] and Mr [NAME], may have their own views, borne of experience with particular communities, about who needs to have agreed, or at least not disagreed, and what proportion of the [NAME] group needs to indicate agreement for the consent to be seen to be consent "as a group", those opinions cannot be definitive and, at best, are simply part of the information base for the [NAME]. The core information is what process was adopted for the purposes of s 77A, and in accordance with the choice made, what was said on behalf of the [NAME] group itself. The principal function of such officers is a reporting one: to report, accurately, to [NAME] or its delegate [NAME] what the [NAME], as a group, decided. 369 Knowledge by [NAME] of the individuals speaking for a particular [NAME] group, and knowledge of the membership and dynamics of that group, are likely to play a part in [NAME]'s consideration and conclusions. The structure of the Act reveals a clear intention that [RESPONDENT] [NAME] are to make decisions on behalf of ([NAME]) [RESPONDENT] [NAME]. That structure assumes some level of knowledge and familiarity with [NAME] and decision-making processes that is not as accessible to non-[RESPONDENT] [NAME]. None of these matters were explored in the evidence in this proceeding, which is, again, why I have concluded the applicants have not discharged their burden of proof. 370 In oral argument, the applicants' counsel submitted that there was a contrast between the approach taken in October 2016 and what occurred in early 2015. I recounted those events at [137] above. The applicants submit that in early 2015, where it was clear there was uncertainty, or lack of consensus, about whether there should be [NAME] to [NAME], a decision was put off. The applicants submit that in October 2016 there was also uncertainty, or lack of consensus, and if the [NAME] had been told about that state of affairs, they may also have decided there was no consent by [NAME] as a group, and decided to postpone the making of a direction under s 19(5), or have decided to refuse to give those directions. 371 There are at least two difficulties with this argument. The first is that it is speculative, in circumstances where there are no reasons and no evidence from the [NAME] for the course taken in October 2016. The [NAME] is that, it is unclear on the evidence, how the "decision" (if there was one) to postpone matters in early 2015 came about, and who made it. In any event, it was open to the [NAME] in October 2016 to take a different course from the one taken (apparently by [NAME] rather than [NAME] or its [NAME]) in early 2015. 372 It should be apparent from what I have said above that my conclusion should not be taken to suggest (subject to the operation of s 19(6)) that the formation of the requisite state of satisfaction under s 19(5) by a Land Council (or its delegates) cannot be successfully challenged on a judicial review application. It may be established by admissible evidence that there was "rubber stamping". It may be established by admissible evidence that the [NAME] had no knowledge at all of the [NAME] group, or its decision-making processes for the purpose of s 77A and so could not have formed the requisite state of satisfaction, because no regard was paid to s 77A. It may be established that the information which was provided to the Land Council or its delegate [NAME] was wrong or untrue in a material particular, and the Land Council or delegate [NAME] relied on that wrong information. It may be proven there was no evidence for an assertion of [NAME] consent as a group, so that again, the requisite foundation for the formation of a lawful state of satisfaction could not be said to exist. It may be shown that there was undue or improper influence on the Council or [NAME]. Bias of the Council or [NAME] may be proven. 373 In the present proceeding, the applicants have not proven that the information provided to the [NAME] was wrong or untrue in any material particular. They have not proven that the [NAME] were unaware of dissent and disagreement with the [NAME] community at [NAME]. It is not the case that there was no evidence for the matters set out in the agenda papers. Rather, the details about who attended the 12 October 2016 meeting, who did not, the identities of the senior and less [NAME] and what their individual views were, were absent from the briefing papers. In the circumstance of a [NAME] such as this constituted by local [NAME], including representatives for the region of [NAME], and in the absence of evidence or reasons from those [NAME], the applicants have not proven that what was in Mr [NAME] paper, and [NAME] [NAME] paper, was all the available information. They have not proven there was no discussion. [NAME]'s reasons for forming the state of satisfaction about [NAME] consent as a group remain unknown. I do not consider that the formation of a lawful state of satisfaction under s 19(5) necessarily requires written information at the level of detail suggested by the applicants. I do not consider in the present circumstances that [NAME] was unable to be lawfully satisfied of [NAME] consent, as a group, unless it was expressly told in writing that [NAME] [NAME] and those who supported her position did not agree, that Mr [NAME] was absent, and that [NAME] [NAME] was absent. In fact, the Court does not know, one way or the [NAME], whether some of these facts might indeed have been known to one or more [NAME]. That is an illustration of the failure to discharge the burden of proof. Finally, as I have noted above, the applicants have not proven on the balance of probabilities that what Mr [NAME] and Mr [NAME] said (and were told) about the position of Mr [NAME] and [NAME] [NAME], on 12 October 2016, was wrong or untrue, if this formed part of the basis of the reports conveyed by [NAME] [NAME] and Mr [NAME] to the [NAME].

Procedural fairness: Grounds 3 and 4 374 It will be recalled that [NAME] submits the [NAME], as [NAME], had no rights or interests affected by the grant of [NAME] such as to give rise to an obligation of procedural fairness in the [NAME] in making a decision under s 19(5). [NAME] submits that in a practical sense there was no alteration to, or diminution in, the interests held by individual [NAME] in [NAME] land the subject of the impugned [NAME]: the land simply continued to be used in the way it was currently being used. This argument does tend to overlook entirely the point of the impugned [NAME], which was to give security of tenure going forward to the [NAME], for considerable periods of time. The purpose and effect of the grant of [NAME] was to entrench the informal tenure, which had previously existed and, in relation to [NAME] (assuming for the sake of this ground the thrust of [NAME] submissions about s 14 of the [NAME]) to secure a contractual form of tenure under different conditions to the statutory tenure it asserts. It is not possible to discount this entrenchment as having no effect on the interests of [NAME] in their land. 375 There may be circumstances in which [NAME] or its delegate could be obliged to give [NAME] an opportunity to be heard before performing its function under s 19(4A). For example, where there is no doubt that [NAME] as a group have consented to the grant of an interest in land and [NAME] or its delegate decides, as an exercise of discretionary power, not to grant the interest. It may in those circumstances be required to afford the [NAME] an opportunity to be heard before deciding not to grant an interest the [NAME] clearly wish to be granted. [NAME] examples might be imagined, but they are far removed from the present circumstances. It is not necessary to determine the respondents' threshold contentions about procedural fairness, because I do not accept the applicants' submission that, even if a duty of procedural fairness was owed in the circumstances, there was any breach of that duty.

Ground 3 376 I have not accepted the applicants' characterisation of the role of Mr [NAME] at the 12 October 2016 meeting as being tasked to conduct a "hearing" on behalf of the [NAME]. The applicants' procedural fairness arguments hinged on this characterisation. Rather, what occurred on 12 October 2016 was a meeting convened as part of the process envisaged by s 77A of the [NAME]. It is a process designed to give autonomy to [NAME] in their decision-making. It (and the earlier information session in September 2016) was the mechanism by which two objectives were to be achieved: to ensure the [NAME] "understand the nature and purpose of the proposed grant", and to arrange for the [NAME], as a group, to give or withhold consent. It was not an opportunity to be heard as part of a wider decision-making process. The meeting did not occur in the course of any exercise of power, because the occasion for the exercise of power had not arisen. The meeting was the attainment (one way or the [NAME]: that is, consent or no consent) of a precondition to any exercise of power by [NAME]. 377 That being the case, there was no occasion, as part of an opportunity to be heard, to convey back to the [NAME] "all of the material information" about those who dissented (and why they dissented), nor about those senior [NAME] who were absent. 378 The situation in [NAME] v [NAME] Board [1967] 1 AC 551; [1967] NZLR 1057, upon which the applicants relied, was quite different. This 1966 Privy Council decision, on appeal from New Zealand, [NAME] a zoning decision of the [NAME] Board, which affected the geographical areas from which dairy factories could secure supplies of milk and cream. The Board established a "zoning [NAME]" to investigate a particular zoning issue and report back to the Board. That [NAME] decided to hold a public hearing about the zoning issue. It was a hearing at which evidence was given over two days. At the hearing, Mr [NAME] challenged the ability of the Board to create a [NAME] as it had, and also challenged the lawfulness of the Board making a decision, because it had pecuniary interest in the outcome. He also contended there should be no zoning at all, but [NAME] recommended to the Board a particular zoning arrangement. The Board received the report on the day of its meeting, and the report did not contain even a summary of the evidence given at the two day public hearing attended by Mr [NAME]. The Privy Council held that there had been a failure on the Board's part – as the decision-maker – to "hear" the evidence and submissions of those affected by the zoning decision. The Privy Council did not consider it impermissible to delegate a hearing function to [NAME] (as effectively the Board had done here to its [NAME]), and stressed that if the Board had been "fully informed of the evidence given and the submissions made and had considered them", there would have been no difficulty with the delegation of the hearing function. 379 It is apparent that the applicants, in their contention about the "delegation" by the [NAME] of a hearing function to Mr [NAME] and [NAME] [NAME], seek to draw a parallel with [NAME]. 380 The function of [NAME], or its delegate, is not to "hear" from persons affected and then factor what it hears into a decision. Its function is to be satisfied, one way or the [NAME], whether the [NAME] have consented, as a group. That is, it is to be satisfied as a matter of fact about a precondition to its discretionary power (relevantly in ss 19(3) and 19(4A)) to issue a direction to [COMPANY] to grant an interest in [NAME] land which has been the subject of [NAME] consent. There are no express restrictions, save for the terms of s 77A, on the material it might consider in forming that state of satisfaction, provided the material is relevant and probative. 381 That is not to suggest there will never be any obligation of procedural fairness, or that circumstances might not arise where a Land Council needs to apprise [NAME] of matters or information as part of the process of considering whether to give a direction, once the precondition is met. However, those kinds of circumstances form no part of the applicants' case here.

Ground 4 382 It is agreed that [NAME] themselves were not provided to attendees at the 12 October 2016 meeting, and it is also agreed that they had not been provided at any earlier stage. 383 Ground 4 is based on the failure to provide these documents. 384 The applicants placed considerable weight on [NAME] obiter comments in [NAME], where, as part of rejecting Mr [NAME] procedural fairness argument in relation to the Minister's discretion (which is not expressly constrained in the way that s 19 is), [NAME] said: 91 Had the [NAME] recognised Dr [NAME] claim for his group's [NAME] ownership, then he, as the group's representative, would have been entitled to have the terms of the Lease and the Agreement explained to him. This much was recognised by [COUNSEL] in [NAME] v [NAME] at 361. As an authorised representative and [NAME], he would also, so it seems to me, have been entitled to a copy of the Lease and Agreement had he sought it. [NAME] v [NAME] was not, however, [NAME] with the position of [NAME] groups that the [NAME] did not recognise as the [NAME]. I consider that, for this reason, Dr [NAME] reliance on [NAME] v [NAME] is misplaced. [NAME] v [NAME] is to be distinguished because it [NAME] the position of the [NAME], rather than, as in this case, the position of [NAME] or groups not recognised by the relevant Land Council as the [NAME]. 92 The distinction between the position of [NAME] recognised, by in this case, the [NAME], as [NAME] and the position of [NAME] or group that are recognised as communities or groups that interested in the land (and who may be affected by the proposed action) is one drawn in s 23(3) itself. As already noted, much the same distinction is drawn in s 19(5) of the [NAME]. Whilst s 23(3)(a) requires the Land Council to be satisfied that the [NAME] understand the nature and purpose of the proposed action (here, entry into the proposed agreement involving the renewal of the lease) and to consent to it (as a group), s 23(3)(b) required only that the Land Council be satisfied that any [NAME] [NAME] or group that may be affected (not being the [NAME]) had been consulted and given an adequate opportunity to express its view. That is, as noted already, the different forms of requisite satisfaction reflect the different relationships to the land in question. Section 23(3)(a) contemplated that, particularly since their consent was necessary, the [NAME] were to be better informed about the proposal than those [NAME] or groups who may simply be affected by it. (Emphasis in original.) 385 If it is accepted, without deciding, that a request by an individual [NAME] might, as [NAME] suggests, trigger an obligation to provide a document such as a lease if that is the proposal on which the [NAME] as a group are being asked to consent, and it is further accepted, without deciding, that a failure to provide the documentation requested could constitute a denial of procedural fairness, then a factual question arises whether in the [NAME] circumstances the evidence establishes the applicants asked to see the impugned [NAME]. 386 The applicants submit the request was made on behalf of [NAME] [NAME] through Mr [NAME]. The evidence shows that, by correspondence to [NAME], Mr [NAME] made the following requests: (1) "In the meantime, could you please provide us with details of the proposals which have been received by [NAME] for the occupation or use of any part of [NAME] by [NAME], the [NAME] or any [NAME] person?" (3 September 2012) (2) "Please provide us with such information as is available to [NAME] about the grants being sought by the [NAME]." (28 April 2014) (3) "For the purposes of properly implementing their arrangements for the governance, management and [NAME] of [NAME], my [NAME] again request that [NAME] provide the [NAME] with: (a) copies of all applications and requests it has received in the last 10 years from any persons, including governments and government authorities, wishing to enter, use or occupy land at [NAME]; and (b) details of all monies received by [NAME] in the last 10 years arising from the entry, use or occupation of [NAME] by any person, including governments." (15 June 2016) 387 None of these are requests for the impugned [NAME]. All are on their face much broader than that. Further, in the context of every letter written by Mr [NAME], he seeks information not only on behalf of his [NAME] [NAME] (whom he does not identify in each letter), but also on behalf of [NAME]. The thrust of much of this correspondence is that [NAME] should be dealing with [NAME], as should any outside entities such as the [NAME] and the Council. Indeed, Mr [NAME] letter of 15 June 2016 is a good example, because it asserts that dealing should only be with the "incorporated" entity representing [NAME]. Many submissions were made by both [NAME] and [NAME] during the proceeding about the misconception that underlies the proposition that [NAME] might form a corporation with whom [NAME] would then be obliged, by the [NAME], to deal with instead of dealing with individuals constituting the [NAME] group. There is some force in the respondents' submissions concerning that misconception, at least on the [NAME] structure of the [NAME], but the matter need not be decided. 388 What is important for the resolution of Ground 4 is to note how consistently that approach was pressed by Mr [NAME], because it tends against the procedural fairness argument now made. As a matter of fact, there is no evidence that prior to the 12 October 2016 meeting [NAME] [APPELLANT], or her sister the [NAME] applicant, whether through Mr [APPELLANT] or on their own behalf, asked to see copies of the impugned [NAME]. And there is no evidence any request to see documents which may have been understood to include the impugned [NAME] was made for the purpose of understanding the terms of [NAME], so as to decide whether to consent to them or not. 389 However, at the 12 October 2016 meeting, the following is recorded in the transcript which was tendered by consent: MEE – (Asks for a copy of the documents from the [NAME] confirming its proposed [NAME] and rentals and terms.) [NAME] – I don't have a copy of it on me. I will forward a copy to you…. If there are no further questions, I will move on to the MacDonnell Regional Council….provides all [COMPANY]… 390 "MEE" is [NAME] [NAME], and "[NAME]" is [NAME]. 391 On the basis that the respondents have accepted the accuracy of the transcript, it would appear [NAME] [NAME] did, in fact, ask to see copies of [NAME] [NAME] at the meeting. Her affidavit evidence did not refer to such a request: At the [COMPANY] meeting, no copies of any draft or proposed [NAME] or licences were provided or otherwise made available for consideration by the [NAME] or otherwise displayed by [NAME] or anyone else. I confirm paragraph 16 of my affidavit made on 18 January 2017 that, on or about 10 January 2017, [NAME] provided me with copies of [NAME] and a licence that he informed me were provided to him by [NAME] on 23 December 2016. This was the first time I have been provided with a copy of such documents, in draft or any [NAME] form. No copies of such documents, in draft or otherwise, were provided or made available at the Chifley Meeting by [NAME] or by anyone else. 392 Even accepting such a request was in fact made, I do not consider that a request at this meeting from [NAME] [NAME] meant that the failure to produce the lease documents constituted a denial of procedural fairness in the making of the decisions under s 19(5). When one reads the transcript of the meeting as a whole a number of features become apparent. First, [NAME] [NAME] is a dominant voice at the meeting. So much so that she repeatedly talks over [NAME], both visitors to the meeting there to explain their [NAME], and over Mr [NAME]. The transcript reveals [NAME] [NAME] is frustrated, disappointed and aggrieved by [NAME]'s conduct over many years about land tenure at [NAME], but the transcript further reveals that it was difficult for Mr [NAME] to complete many sentences at all without interruption. Notwithstanding those difficulties, it is clear that those present from (for example) the Council and the [RESPONDENT] were attempting to answer questions about [NAME], what would be done under them, and deal with complaints and queries [NAME] had (not just [NAME] [NAME]) about what was and was not being done in [NAME]. This included issues such as local employment – being the example counsel gave during the hearing as to why sighting the actual [NAME] was material. There was, in my opinion, a clear willingness to tell [NAME] whatever they wished to know about [NAME]. 393 There may be circumstances where the terms of the lease are central to the consent of a [COMPANY], one way or the [NAME]. Alternatively, the terms of a lease may be central to the "understanding" of the group, for the purposes of the first limb of s 19(5). Understanding of, and consent to, the terms of a lease may however be achieved in many ways. Here, where the core lease terms had been the subject of a written presentation to [NAME], where the [NAME] present had a chance to ask questions, and did so, and where this was a follow-up meeting to the one in September, it is not apparent on the evidence that the actual clauses of [NAME] as expressed in written form were of any material concern to the [NAME] as a group. At a finer level, it is also not apparent of what concern they were to [NAME] [NAME]. Aside from her demand to see them, which in the transcript and in context can be set alongside many [NAME] demands to see many [NAME] documents, or to have answers to many [NAME] questions, no content is given by her about what it was about the documents themselves that meant she needed to see them. Further, it was clear she was implacably opposed to the grant of the impugned [NAME], heading up as she did the push from [NAME] to secure a head lease for [NAME], so once again it is difficult to see what it was about the detailed clauses of the lease (as opposed to the core terms presented) that might have been material to the group's decision, or to her own decision. There is no evidence that she needed to see [NAME] to make up her own mind. There is ample evidence her mind was made up, and it was made up against the impugned [NAME]. There is no evidence any [NAME] [NAME] needed to see [NAME] to make up her or his mind, or to understand the proposal. 394 The applicants also relied on a letter from Mr [NAME] dated 16 January 2014 but I can see no request for copies of the impugned [NAME] in that letter, or even details of them. That is hardly surprising since this letter was written in what might be described as the hiatus between the July 2013 meeting where [NAME] was apparently approved as the [NAME] (although [NAME] disputed the outcome of this meeting) and the revival of the impugned [NAME] proposal in early 2015. 395 I make the same finding about Mr [NAME] letter of 24 February 2015. That letter has much content about terms of [NAME], but it concerns the terms of [NAME] proposed by [NAME] for [NAME], and in substance is Mr [NAME] attempt to have [NAME] agree to the grant of those [NAME], on the basis of the consent given by the [NAME], but then not acted on.

Failure to consider relevant material: Ground 5 396 The applicants' argument here fails at the first hurdle, in my opinion. This ground depends on the applicants' characterisation of [NAME] consent as a relevant consideration in the exercise of the discretionary power to direct [COMPANY] to grant an estate or interest in land. 397 For the reasons I have set out above, I do not agree. The consent of [NAME], as a group is – like the consultation with community members affected in s 19(5)(b) – a precondition to the discretionary power to issue a direction arising. That is the correct legal characterisation of the role of [NAME] consent, and it accords with the purpose of the [NAME], as interpreted by the authorities to which I have referred. A ground based on relevant considerations arguments must fail. 398 While it is true that Mr [NAME] report was due fairly shortly after the 12 October 2016 meeting, and while it is also true on the evidence that Mr [NAME] was briefed to provide [NAME] with an updated opinion about the composition of the [NAME] group at [NAME], and not just to provide an opinion about the connections between two particular [NAME] and the [NAME] of [NAME], the difficulty for the applicants is that there is no evidence that the [NAME] opinion – that of [NAME] [NAME] from 2012 – was inaccurate in October 2016. 399 [NAME] [NAME] was not cross-examined to suggest it was. Indeed, the applicants sought to rely on her 2012 report in [NAME] grounds of review. Mr [NAME] was not called, and there is no suggestion that, if he did report (and no report is in evidence), he reached conclusions that were materially different from those [NAME] [NAME] reached in October 2016. 400 Finally, even if these difficulties could have been addressed, I would not have been inclined to accept that in 2016 or 2018, this Court should find that an anthropological opinion was material or critical to understanding the composition of a [COMPANY] of [NAME] land for the purposes of ascertaining consent as a group, where that function is conferred on a body comprised of [RESPONDENT] [NAME]. It seems inconceivable that the [NAME] themselves could not explain who formed their group and why, and it seems inconceivable that their own voices (if necessary, as reported by [NAME]) should not be the primary source of information for [NAME]. To have a position where the say-so of an anthropologist is determinative of the composition of a [COMPANY] seems antithetical to the scheme of the [NAME]. 401 Aside from the evidentiary difficulties this ground faces, there is some confusion in the applicants' contentions on this ground between failure to take into account a relevant consideration (as explained by [NAME[NAME] in [NAME] v [NAME]-[COMPANY] [1986] HCA 40; 162 CLR 24 at 39-40), and failure to deal with material or information actually or "constructively" before the decision-maker. They are different kinds of errors. The former, as is well-established, has its source in the scope, subject matter and purpose of the applicable legislative scheme: either that scheme identifies a matter as a consideration which must be taken into account, or it does not. 402 The applicants identified the latter description of error as coming at least in part from observations by Gibbs CJ in [NAME] at 31, where [NAME] held that, if the Minister had relied on a summary of facts from his officers (as he was entitled to do) but that summary "fails to bring to his attention a material fact he was bound to consider, and which cannot be dismissed as insignificant or insubstantial", then the Minister will have failed to form his satisfaction according to law. It was in this context that [NAME] CJ observed, in the immediately following paragraph that on the facts in [NAME], the material fact that Ranger 68 was within the land recommended to be granted as [NAME] land, had been raised expressly in correspondence with the relevant Department and was to be treated as in the possession of the Minister. 403 In my opinion, this latter observation by [NAME] formed part of the reason about why the failure to have regard to material information – when it was to be treated as known to those providing the summary to the Minister – could cause the Minister's state of satisfaction to miscarry. I do not read Gibbs CJ as articulating any independent error based on "constructive knowledge" of facts. 404 Further, although Gibbs CJ's language does refer to a "material fact" a decision-maker is "bound to consider", it is quite clear that the law has developed in accordance with [NAME[NAME]'s articulation of the considerations ground, which is not based on a failure to consider a piece of information or evidence. That failure may give rise to [NAME] kinds of errors, of the sort described by [NAME], which focus on how the formation of a state of satisfaction might miscarry if there is a significant enough factual error, but it is not a considerations analysis as [NAME] now understands that concept: see Plaintiff S156/2013 v [NAME] Protection [2014] HCA 22; 254 CLR 28 at [41]-[42]; [NAME] Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [64]-[68] ([NAME], [NAME] and [NAME] JJ). See also my comments in [NAME] v Director of [COMPANY] (No 2) [2016] FCA 433 at [154]-[155] and [NAME] v [NAME] Protection [2017] FCA 1508 at [60]. 405 Nor does the applicants' argument derive any support from the decision of [NAME[NAME] in [NAME] v [NAME] Affairs [1985] FCA 449; 8 FCR 167 at 178-179. The context of [NAME]'s remarks is an asserted duty to make inquiries. In that context, Toohey J refers to a situation where "the material placed before the Minister or his delegate contains some obvious omission or obscurity that needs to be resolved before a decision is made" (at 178). In that case (review of a deportation decision), the material fact [NAME] details about the applicant's relationship with his young child in Australia. The existence of the young child was noted but the material held by the Department about the applicant's relationship with the child was not before the Minister and the applicant was discouraged by the Department from submitting such information. In those circumstances, [APPELLANT[NAME] held that the "matter" (the applicant's young child, his relationship with him and how deportation would affect this) was constructively before the Minister because the Department had all this information but had not provided it to the Minister and dissuaded the applicant from doing so. Analytically, there are parallels with the approach taken by Gibbs CJ in [NAME]: that is, there was information available to the Minister (because it was in the possession of, and within the knowledge of those in the Department advising the Minister) which was material to the decision to be made but was overlooked or not considered. A more recent example of the application of the same principle in [NAME] jurisdiction is [NAME] v Minister for Finance, Natural Resources and the Arts [2012] QSC 132; 192 LGERA 118 at [108]-[110]. See also [NAME] v [NAME] (1989) 18 ALD 129. 406 This approach is consistent with the approach of [NAME] in [NAME] v [NAME] Protection [2016] FCA 101; 242 FCR 65 at [64]. I do not consider the applicants' contentions are assisted by this line of authority, when the [NAME] ground of review is a considerations ground. Particularly not when, as I have found, it is not correct to characterise [NAME] consent, as a group, as a relevant consideration in the exercise of power under s 19(5).

Legal unreasonableness: Ground 6 407 The state of the evidence is, once again, problematic for the applicants. The [NAME] report was not adduced in evidence, and there is no evidence whether or not it had been completed at the time of trial, or whether it was available to the [NAME] in any form. There is evidence, from [NAME] contract with Mr [NAME], that he was instructed to undertake 15 days of work on his report, with it being due on 5 November 2016. The contract was signed on 24 October 2016: that is, after the [NAME] decision, although the applicants contend that is immaterial because in an informal sense, [NAME] knew they would engage Mr [NAME] as evidenced by the references made to Mr [NAME] by Mr [NAME] in the 12 October 2016 meeting. 408 A key aspect of the applicants' arguments on this ground is that the reason for [NAME] briefing Mr [NAME] was, at least in part, because of the assertions from [NAME] [NAME] and [NAME] about who need to be consulted on any decisions about [NAME] land, and who needed, amongst the [NAME] group, to agree to decisions about [NAME] land. 409 On the basis of that asserted fact, the applicants contend there was no impediment to the [NAME] postponing its decision until the [NAME] report was completed, and (the applicants contend) [NAME] could be certain that the right [NAME] had been consulted, and that there was consent from the "right" [NAME] (or, that there was no opposition from key [NAME], to put the proposition positively towards the applicants' claims). 410 It is correct that the brief to Mr [NAME] expressly referred to the assertions of [NAME] in particular about the approach to [NAME] decision-making in the [NAME]. It said: Advice is also required in regard to the content and accuracy of anthropological references, particularly in relation to definitions, assertions and application of [NAME] ownership or the exercise and nature of [NAME] [NAME] decision-making (among [NAME] matters) that occur in the various documentation prepared on behalf of the [COMPANY] ([NAME]), a [NAME] that has made wide-ranging and controversial assertions concerning the exercise of [NAME] [NAME] rights and interests apparently "gifted" to [NAME] by its members. The briefing information provided outline the history of these matters and attempts by the staff of the Central Land Council to address these matters. An independent consultant's report is required by the Central Land Council in order that the findings may be considered and appropriate action taken to address matters arising. The situation is extremely complex and will require very sensitive treatment by the consultant. 411 One of the [COMPANY] Mr [NAME] was expressly instructed to provide was a report to [NAME] on: • Identification of [NAME] groups affiliated with the area and the nature of that group affiliation, with reference to sites, dreaming tracks and [NAME] [NAME]. Where the previous information on [NAME] ownership is updated by field work, updated genealogies and/or lists of the relevant native title and custodians should be provided, ideally by groups. • Identification of those [NAME] who [NAME] assert are not [NAME], and the reasons why they are not under their traditions; • An anthropological analysis (if considered appropriate upon review) of the material produced by the [COMPANY] ([NAME]) concerning decision-making and land interests at the [NAME]; 412 The question of the need for a new anthropological report on these matters was raised in cross-examination with Mr [NAME]. Mr [NAME] gave the following evidence under cross-examination: [NAME]: And in paragraph 17 you say: It's my opinion that the identity of the [NAME] of [NAME] and principles governing membership of the group are well known to [NAME], through research and consultation [NAME] have conducted over many years, and the position has been settled. Now, the impression that's created by that paragraph is that there's little room for doubt about those matters; do you agree?---I agree. And that's your opinion?---Yes. Okay. But you say in paragraph 19 that in your experience, [NAME] ownership can become contested or disputed. Now, I've assumed that your statement in 19 relates to at least [NAME], perhaps amongst [NAME] 5 areas?---Yes. And so despite your assertion in 17 that the identity of [NAME] and principles governing membership of the group are settled, you accept that, indeed, [NAME] ownership, which encompasses those topics, can be disputed?---Yes. And you agree that they're inconsistent statements?---No. Why is that?---Well, because I think in the case of [NAME] that we're well familiar with the core [COMPANY] and occasionally they – well, and that in the case of [NAME] there were issues surrounding the [NAME] and [NAME] family and their ongoing residence on the [COMPANY]. … But in paragraph 21 you also say, in that same sentence: And more recently, because of the issues about the company known as [NAME], that claims to represent [NAME] as a [NAME], and has disputed the CLCs role on land-use issues. So you would agree with me, wouldn't you, that, aside from the issue about the Tilmouth-Satours about the identity of [NAME], there is indeed a dispute about the decision-making process of the group?---There's certainly a disagreement within the group, it would seem. Yes. Yes. And indeed that was one of the very topics – the decision-making process of the group – that you asked Mr [NAME] to advise on?---Yes. May I refer to the brief to clarify that? Yes. I can take you there. I will find the page. You may be quicker than me. I will try and find it myself. I'm told it starts at 1163?---Yes, that's correct. So we asked Mr [NAME] to: In relation to definitions, assertions and application of [NAME] ownership, or the exercise and nature of [NAME] [NAME] decision making, among [NAME] matters that occur in the documentation prepared on behalf of the [COMPANY]. And if you drop down to page 1180, which is a more detailed - - -?---Yes. No, that's the – so the third paragraph, [NAME] line, is what I just read out. I see. Thank you for that. So you would agree, clearly, that the purpose of the brief to Mr [NAME] was not confined to the [NAME] issues?---No. 413 Mr [NAME] was not pressed any more than this on why Mr [NAME] was retained, at the time he was, to report on what he was asked to address. In chief, Mr [NAME] gave no [NAME] details in his affidavit. 414 The applicants did not challenge [NAME] [NAME] in cross-examination that the table she produced in her evidence was inaccurate, as at the date of the 12 October 2016 meeting, or at the date of [NAME]'s decision, although [NAME] [NAME] deposes in her affidavit that she considered it to be missing some [NAME]. They did not put to [NAME] [NAME] that there had been material changes in the composition of the [NAME] group so that the way she understood decision-making to work in that group was unreliable. Rather, the cross-examination of [NAME] [NAME] [NAME] putting the views of [NAME] [NAME] about whether Mr [NAME] needed to be at the meeting, and whether [NAME] [NAME] considered she needed to speak directly to Mr [NAME]. As I have noted at [258] above, [NAME] [NAME] disagreed with the propositions put to her in cross-examination. 415 The state of the evidence meant that the applicants were unable to put much by way of submission about what might have occurred had the [NAME] elected to wait until Mr [NAME] produced his report. 416 This can be contrasted with the approach taken in [NAME] and Citizenship v [NAME] [2013] HCA 18; 249 CLR 332, the decision upon which the applicants principally relied for this ground. [NAME] [NAME] the exercise of a discretionary power reposed in a Tribunal to adjourn a merits review from time to time. The applicant had, in substance, asked for an adjournment as she was awaiting the outcome of a review by [NAME] of her unsuccessful application for a skills assessment. Production of a positive skills assessment was necessary in order for her to secure the visa she had applied for. The Tribunal refused to adjourn the review and made a decision, in part based on the fact the applicant did not have a positive skills assessment. In the search for what the [NAME] called an "evident and intelligible justification" of the way in which the Tribunal's discretionary power was exercised, the [NAME] said this about the Tribunal's state of knowledge (at [83]): The purpose of s 360(1) has already been referred to. It is to provide an applicant for review the opportunity to present evidence and arguments "relating to the issues arising in relation to the decision under review". The question which remained in issue when the Tribunal made its decision was the satisfaction of a visa criterion by a complying skills assessment. Although the Tribunal could not be expected to assume that the [NAME] skills assessment, when reviewed, would favour [NAME] [NAME], it did not suggest that there was no prospect of the [NAME] skills assessment being obtained, or that the outcome could not be known, in the near future. In these circumstances it is not apparent why the Tribunal decided, abruptly, to conclude the review. 417 In [NAME] words, in finding the Tribunal's refusal to adjourn the review was legally unreasonable, the [NAME] looked to what the Tribunal knew about the prospects of the [NAME] skills assessment being different from the (unsuccessful) first one. This kind of assessment is an integral part of evaluating the justification for the exercise of power. 418 In the present case, there is no evidence before the Court on which it might base a finding about what the [NAME] knew, or should have known or appreciated, about the likely (or even possible) outcome of the [NAME] report, so as to measure the reasonableness or unreasonableness of it proceeding to make a decision. 419 Ground 6 fails for this reason. It also fails for at least two [NAME] reasons related to the evidentiary foundation for the applicants' legal argument. First, the [NAME] did not exercise any discretionary power adversely to the applicants, in terms of refusing to postpone its decision. It is true the evidence reveals that Mr [NAME] wrote to [NAME] on 14 October 2016 and asked for an "undertaking from [NAME] that it will not direct the relevant [COMPANY] to grant any estate or interest in [NAME] without, first, giving me and [NAME] at least 8 weeks prior written notice of the intention to make such a grant". However, this was not a request to the [NAME] to postpone its decisions until the [NAME] report was available. Rather, this was a general holding letter so that Mr [NAME] and his [NAME] would have time to consider issuing proceedings (and applying for injunctive relief, as they ultimately did) before any direction was given. [NAME] had advised the attendees at the 12 October 2016 meeting, including [NAME] [NAME], of the date of the [NAME] meeting on 19 October 2016. At most, it might be said the [NAME] did not anticipate an argument (not raised) that it should wait for the [NAME] report, and nor did the [NAME] advising [NAME], such as Mr [NAME]. That is no basis for a finding of legal unreasonableness in the making of its decision under s 19(5). 420 [NAME], and related to the first, there is no evidence the [NAME] even knew about the [NAME] report, let alone about its terms of reference in relation to [NAME] decision-making in the [NAME]. It is [NAME] in whom any implied power to decide to postpone a decision would be vested. The applicants contend, based on an analogy with "the bureaucracy" to which Gibbs CJ referred in [NAME] at [31], that [NAME] such as Mr [NAME] and [NAME] [NAME] knew about the [NAME] briefing, and knew about the dates and times for the [NAME] meetings, and could have informed the [NAME] of the pending report and the need to postpone the meeting. The [NAME] was therefore said to have constructive knowledge about the [NAME] briefing. However, the evidentiary position remains that the applicants have not established that any members of the [NAME] knew about the [NAME] retainer, or its subject matter, and have therefore not established [NAME] was put in a position of being able to consider whether the timing of the 19 October 2016 meeting was appropriate because of that outstanding report.

Conclusion on the six grounds of judicial review 421 For the reasons I have set out, all of the grounds of review should fail. I emphasise again, that many of them failed because of an insufficient evidentiary basis. Nothing in these reasons should be taken as any wholesale rejection of many of the applicants' contentions about the task to be performed by the [NAME] under s 19(5). 422 This conclusion means it is unnecessary for the Court to deal with a number of objections and arguments raised by the respondents, which only become relevant if I had found one or more of the grounds of review should be upheld. In particular, there is no need to deal with [NAME]'s contentions about the scope and operation of s 14 of the [NAME], nor about whether it would have been permissible for [NAME] to direct the [NAME] to grant a lease to [NAME] under s 19(5). I have already noted that [NAME]'s contentions about whether a duty of procedural fairness is owed, and if so in what circumstances, to [NAME] individually or as a group, need not be determined. Rather, I have assumed that procedural fairness was owed, but have rejected the applicants' contention that there was a denial of procedural fairness.

The applicants' challenge to the grant of [NAME] 423 I accept the submissions of [NAME] concerning the irrelevance, in terms of the creation of proprietary interests, of [NAME] [NAME] system under [NAME]. [NAME] submits (at [18]): An estate or interest in [NAME] land that is granted in accordance with the federal Act does not depend on registration under [NAME] [NAME] title legislation. Section 12(5) of the Act enables registration of the grant of [NAME] land to [COMPANY] and s 20A registration of a dealing by [COMPANY] under the Act. Such interests take force and effect from the Act empowering their grant and are not dependent upon the existence of any registrable instrument. In any event, an unregistered lease (whether or not in registrable form) confers an equitable interest in the land, which is an estate or interest for the purposes of the federal Act; so too is a licence with respect to the land for the purposes of s 19 (sub-s 19(11)) which would not be amenable to [NAME] registration. The [NAME] legislation does not give force and effect to an estate or interest granted (or not granted) in accordance with the federal Act (as the case may be). (Footnotes omitted.) 424 The enforceability of those interests against [NAME], or their recognition by [NAME], is not the subject matter of this proceeding.

The applicants' challenge to the affixing of the seal 425 I have set out the applicants' arguments about the affixing of the seal at [206]-[210] above, as well as the extent of the agreed factual basis against which their arguments are to be assessed. 426 It is clear there was no compliance with the terms of s 4(5) of the [NAME] in the way the seal of the [NAME] has been affixed to the impugned [NAME]. It is clear that the purported retrospective ratification by the written authorisations to which I refer at [336(2)] can have no validating effect because those authorisations are not directed to the person who affixed the seals: namely, [NAME] [NAME]. Even if one were to accept [NAME]'s argument that [NAME] can, purportedly in compliance with s 4(5), retrospectively ratify (or authorise) the affixing of a seal to a document by which [COMPANY] purports to grant an estate or interest in land, the difficulty here is that the retrospective authorisations did not ratify the affixing of the seals by [NAME] [NAME]. They ratified the affixing of seals by two persons who did not affix the seals. The same is true of the [NAME] resolution apparently made at the 19 October 2016 meeting: even if this could have been relied upon, it was not directed at [NAME] [NAME]. 427 Although she may have been a person within the terms of s 4(4) (that is, a staff member authorised to keep the seal), that fact does not bring her within s 4(5). 428 Therefore the principal question is what is the effect, if any, of such non-compliance on the validity and effectiveness of the impugned [NAME]. 429 The applicants submit: The general rule at common law is that a corporation may only contract under its seal. That rule has been modified by statute in certain contexts. In particular, that rule has been modified by statute for [NAME] incorporated under the [NAME] Act. However, as [NAME] observe, "a corporation that has not been so incorporated, for example a [NAME] … must use its seal unless there is a specific statutory exemption to be found in the relevant legislation or a common law exception applies". (Footnotes omitted.) 430 I accept this submission. In my opinion, the terms of s 4(3) and 4(5) of the [NAME] are intended to give effect to this general law rule, by recognising that a [NAME] should contract by the use of its common seal and that there is to be a prescribed process for the affixing of that seal, to ensure that [COMPANY] is intentionally, formally and appropriately bound by the contractual obligations it purports to assume. Further, for s 4(3)(c) to state that [COMPANY] may "acquire, hold and dispose of real and personal property" subject to Pt II of the [NAME] is a further recognition that the scheme intends [COMPANY] to contract (including in relation to interests in land) by the affixing of its seal. The presumption in s 4(6) supports this construction: a presumption that the [COMPANY] seal has been duly affixed is only necessary because of the legal effect to be gained from the use of a seal. 431 It is well established that [NAME] contract through a seal at common law, although there may be exceptions. It is equally well established that a statute may impose an obligation to do so, with non-compliance resulting in no binding contract. In [NAME]'s [COMPANY] v [NAME], Ratepayers and Councillors of the Shire of Maffra [1948] HCA 46; 77 CLR 544, Latham CJ said at 551-552: Independently of statutory provisions, a [NAME] at common law was bound by the general rule that its contracts must be made under seal. But there were exceptions to this rule… But if a statute requires that contracts of a corporation shall be made in a particular manner the statutory provisions necessarily supersede the common law. Thus in [NAME]. v. [NAME], &c., of Royal Leamington Spa it was held that where a statute provided that every contract made by an urban authority the value or amount of which exceeded £50, should be in writing and sealed, the urban authority was not bound by any contract not so made, and was not bound even by an executed contract of which the authority had the full benefit and enjoyment where that contract was not made in the prescribed manner… 432 Clearly, a corporation incorporated under the [NAME] Act 2001 (Cth) is not subject to the common law requirement that it may only contract under its seal: s 127. This provision is not applicable to [NAME]. Authorities concerning the common law requirement for seals, particularly in relation to [NAME], are few and far between. The most recent appellate court affirmation of the common law position in Australia appears to be the [ADDRESS] of Appeal decision of [COMPANY] v Brisbane City Council [2001] QCA 528, where McPherson JA (with whom McMurdo P and [NAME[NAME] agreed) said (at [10]): The common law rule is that a corporation is, subject to recognised exceptions, incapable of contracting or doing any [NAME] act except by or under its common seal. [NAME] v [NAME] (1840) 6 M & W 815, 817-818, 151 ER 642, 643, where Parke B said: "I doubt whether any case has gone so far as to shew that a corporation can bind itself by such a contract as this, not under seal. The old cases permitted as to certain small things, which must of necessity be done without that formality, and this exception has been extended by the modern cases to things which the corporation, by the nature of its constitution, must do to carry on its concerns: but that principle does not apply to the case of a municipal corporation; it cannot be necessary for the purposes of its constitution, that it should part with so much of its property." 433 After referring to the Queensland legislation in relation to the formation of contracts by Brisbane City Council, [NAME] held that in that case: Abolition of the common law requirement that a corporate act by the Council is to be done under its seal is confined in s 40(1) to the case of a contract made by a delegate or [NAME] person "acting with the authority of the Council". 434 [NAME] [NAME], in the leading text, [NAME]'s Law of Contract (11th Australian ed, 2017) provide a useful outline of the state of the law in relation to the use of seals by [NAME] (at [17.71]): [NAME] incorporated under the [NAME] Act 2001 (Cth) are freed from the necessity of contracting under the corporate seal, a corporation that has not been so incorporated, for example, a [NAME] (including a local government body), must use its seal unless there is specific statutory exemption to be found in relevant legislation or a common law exception applies. The rule was obviously inconvenient and was, at times, deplored by the judiciary. There are three important common law exceptions to this rule. It may be that in modern times these exceptions have overtaken the rule. First, the rule did not apply to trading [NAME]… Secondly it was recognised from the earliest times that a requirement that every contract made by a [NAME] must be made by seal was obviously burdensome.

Accordingly, when the contract was of frequent occurrence, of trifling importance or a matter of urgent necessity the rule did not apply. Thirdly, where a contract has been duly performed by one of the parties, an action lies against the [NAME] party for breach of an implied promise to pay for the benefit requested and received… The significance of this rule today is that it may still be possible to argue that a [NAME], that purports to make an important contract without the use of its seal, has in fact not made an effective contract so [NAME] as it is still executory, assuming that there is no legislative provision that has abrogated the rule. 435 None of the common law exceptions referred to by [NAME] [NAME] apply here. Not only does the [NAME] not abrogate the common law rule, it expressly gives effect to the general common law rule in relation to [NAME]. 436 More critically than the common law position, the statutory requirement in the case of the [NAME] is unambiguous, and effect should be given to it, especially so when what is at stake is the disposition of an interest in land, to which particular formalities generally attach. 437 Whatever protective function or effect s 19(6) may have on the Land Council's direction under s 19(5), it cannot have any such effect on non-compliance with s 4(5). The terms of s 19(6) simply do not engage with Pt II of the [NAME] in which s 4(5) is found. Whatever view is taken of its effectiveness, what is protected by s 19(6) is any legal infirmity in the direction given by the Land Council to the [COMPANY]. Section 19(6), in its text, deals with a situation where a Land Council "in giving a direction….fails to comply with subsection (5)". That language directs attention to the two conditions on the direction power that are set out in subsection (5), and to nothing wider than that. 438 Rather, the question is how do the terms of s 19(3) and 19(4A) interact with the terms of s 4(3) and the requirements of s 4(5). It is appropriate to set s 19(3) and (4A) out again: (3) With the consent, in writing, of the Minister, and at the direction, in writing, of the relevant Land Council, [COMPANY] may, subject to subsection (7), grant an estate or interest in land vested in it to the Commonwealth, [NAME] or an Authority for any public purpose or to a [NAME] for any [NAME] purpose. … (4A) With the consent, in writing, of the Minister, and at the direction, in writing, of the relevant Land Council, [COMPANY] may, subject to subsection (7), grant an estate or interest in the whole, or any part, of the land vested in it to any person for any purpose. 439 Section 4(3) and (5) provide: Legal status of [COMPANY] (3) [COMPANY]: (a) is a body corporate, with perpetual succession; (b) shall have a common seal; (c) subject to this Part, may acquire, hold and dispose of real and personal property; and (d) may sue and be sued in its corporate name. … (5) The common seal of [COMPANY] is to be affixed to a document only with a written authority signed by: (a) if the Trust consists of 4 or more members—at least 3 of those members; or (b) if the Trust consists of 3 members—at least 2 of those members. Note: Section 7 deals with the membership of [COMPANY]. 440 What act or acts does the [NAME] identify as the "grant", and will that act or acts necessarily require compliance with s 4(5)? 441 The discretionary power in s 19(3) and (4A) must be read with the terms of s 4(3), which is the general provision authorising [COMPANY] to dispose of real property, and constituting [COMPANY] as a statutory entity capable of dealing with interests in land in a contractual sense. Section 19(3) and (4A) then confer a particular power on [COMPANY], s 19 being the central provision in the [NAME] regulating dealing with land by [NAME]. 442 The parties' written and oral submissions spent considerable time addressing complex questions about what was required for a legal "grant" to take effect, and whether when only some parties had executed [NAME] (as was the case for [NAME] and [RESPONDENT] [NAME]) there was an agreement to grant which created at the least an equitable interest in the land. These submissions need only be addressed to a limited extent. The correct focus is on what the statutory regime requires. 443 I do not accept [NAME]'s submission that there is a "grant" within the meaning of s 19(3) and (4A) when the Land Council gives the [COMPANY] a direction under s 19(5). The subject matter of s 19(5) is not a grant of an estate or interest: it is a direction by a Land Council to [COMPANY]. The legislative scheme generally and s 19 in particular (s 19(2)(c) is [NAME] example) contemplates [NAME] will act on, or after, a direction by a Land Council, rather than acting independently to determine whether an estate or interest in [NAME] land held by [COMPANY] should be created. That is also the clear effect of s 5(2), which requires [COMPANY] to exercise its functions in accordance with Land Council directions and where a direction is given, to take action in accordance with that direction. 444 Section 19(5) is [NAME] with the limitations on the circumstances in which a Land Council is able to give [COMPANY] such a direction. That construction is confirmed, in my opinion, by the use of the adjective "proposed" in s 19(6). The use of the word "proposed" in the phrase "proposed grant" indicates that the only subject matter of s 19(5) is the direction, and that the grant (which is "proposed" by the giving of the direction) will be made in exercise of a different power: here, s 19(3) and (4A). 445 The principal provisions in which the power of [COMPANY] to make the grant is contained are, relevantly, s 19(3) and (4A), with similar powers being conferred in s 19(2) and 19(4). 446 If s 19(3) and (4A) are the applicable sources of power, as I consider they are, the question remains what meaning is to be given to the word "grant" in s 19(3) and (4A). Given the context and wording of both subsections in s 19, the word "grant" ought to be afforded the same meaning in each subsection. [NAME] parts of s 19 inform the answer to that question. 447 Section 19(1) contains the prohibition which governs the remainder of s 19. By its terms, Parliament intends that not only any dealing in or disposal of [NAME] land occur strictly in accordance with the limits set out in s 19, but also that any "agree[ment]" to deal in or dispose of [NAME] land be subject to those limits. So, for example, s 19(1) (read with s 5(2)) would prohibit [COMPANY] from agreeing with a third party that the third party lease [NAME] land for the purposes of, say, a medical clinic, unless there was a direction under s 19(5) and then an exercise of power by the [COMPANY] under one of the applicable provisions such as s 19(2), (3), (4) or (4A), taking into account the limitations imposed by some of those provisions (such as ministerial consent). 448 This construction is consistent with the protective effect of s 19, and the [NAME] more generally, in relation to the interests of [NAME] and [NAME] in [NAME] land they have been granted under ss 10 and 11. It should be noted that s 11A, does confer a limited power on a Land Council (not [COMPANY]) to agree to grant an estate or interest in land before there is a grant of [NAME] land to [COMPANY]. This section was inserted in 1987 following [NAME] ([NAME]) Amendment Act 1987 (Cth). The insertion appears to be in response to Justice Toohey's report to the [NAME], entitled "Seven Years On" dated December 1983, where [NAME] recommended that s 23(1)(e) of the [NAME], which confers a function on [NAME] to negotiate with persons desiring to obtain an estate or interest in land in the area of the Land Council, be amended to allow for negotiations in respect of land which is subject to an application to the Commissioner to have recognised as [NAME] land but which has not yet been recognised as [NAME] land, and so has not been vested in [COMPANY]. The explanatory memorandum indicates that the insertion of s 11A corresponds with the amendment to s 23(1)(e), so as to allow a Land Council to enter into agreements the subject of negotiations under s 23(1)(e). 449 For present purposes, the relevance of the text of s 19(1) is that it distinguishes between a dealing, a disposal and an agreement to do either of those things. It suggests that not all those actions are equivalent to a "grant". 450 Then there is the text of s 19(8) and s 19(8C) which use the word "transfer" in a context that suggest it means something different from a "grant". The same can be said of s 19(9) which is related to s 19(6), but also contemplates that a third party may acquire an interest by "grant" or by "transfer". 451 Thus, it would appear that one action which the word "grant" does not include is the transfer of an interest from a [NAME] to [NAME]. Rather "grant" is [NAME] with the creation of a new interest in [NAME] land by the [COMPANY], and is directed towards conduct as between the [COMPANY] and a third party. 452 Otherwise, it is notable that s 19 consistently uses the phrase "grant an estate or interest" throughout its text. The term "grant" is also used in the [NAME] in [NAME], similar contexts, such as in Part IV, dealing with mining on [NAME] land. Section 40, for example, deals with the "grant" of exploration licences and s 45 deals with the "grant" of mining interests. 453 These provisions lead me to conclude that the word "grant" as it is used in s 19(3) and (4A), in the same way it is used elsewhere in the [NAME], intends to import the general law usage of the word. There must also be some intended equivalence between the use of the word "grant" throughout the Act in relation to [COMPANY] and the use of the word "dispose" in s 4(3). 454 In the [NAME] context, little assistance is gained from the inclusive but not exhaustive definition of the word "grant" in s 3(1) of the [NAME]. That definition states that the meaning of grant, in relation to an interest in land, includes "the doing of any action by reason of which the interest arises". The inclusion of actions does not take the analysis any further for the purposes of understanding what is meant in s 19 by the "grant of an estate or interests" for the purpose of determining when the seal of [COMPANY] needs to be affixed. Similarly, I accept the applicants' submissions that the terms of s 3(2) of the [NAME], are of no relevance. That subsection provides that the term "estate or interest in land" in the [NAME] should be read to include a right against the [NAME] to a grant. That has no relevance to s 19(3), (4A) and (5). 455 The meaning of the word "grant" in the context of conveyancing and the disposition of interests in land seems elusive. None of the authorities cited by the parties on this issue considered the meaning of "grant" in this context, nor did they consider when a grant is said to occur. I consider the concept of a grant as it is used in the context of the [NAME] refers to the legal conveyance of proprietary interest from one party to [NAME], and occurs on the valid execution and exchange of contracts. This definition appears to me to be consistent with what little authority there is on the term "grant". In [NAME] v South Australia [2014] FCA 101; 218 FCR 148 at [30] and [83], [NAME] accepted that the "conventional conveyancing meaning" of the word "grant" is: the original creation of a freehold estate or of a perpetual lease separated from the reversionary interest… 456 Similarly, in the UK, the Court of Appeal considered in [NAME] v Islington London Borough Council [2009] EWCA Civ 578 at [57] (Rimer LJ; Waller and Aikens LJJ agreeing) that "grant" in the context of the [NAME] Act 1985 meant "the conveyance or lease by which the premises are to be assured to the purchaser on completion". 457 In the case of a statutory entity such as [COMPANY], operating in accordance with s 4(3), the use of its seal is required: it is the evidence of its authority to enter into a contract. [COMPANY] only has the authority given to it by the [NAME]. Section 4(5) expressly sets out the circumstances in which a seal can be affixed as evidence of [COMPANY]'s authority to enter into a contract or make an agreement, and by the use of the word "only" the provision indicates Parliament's intention that the method there prescribed must be adhered to. 458 I do not consider there can be a valid exercise of power by [COMPANY] under s 19(3) and (4A) to "grant" an interest or estate in [NAME] land (that is, to convey by execution of, relevantly, a lease or licence) unless and until there is compliance with the terms of s 4(5). Contrary to [NAME]'s submissions, there is a clear temporal limitation to be implied in s 4(5) for it to serve its statutory purpose. A seal is evidence of authority to contract (and thus to convey), and without a seal affixed in accordance with law there is no authority to contract (or convey). The seal is to be affixed at the time the contract is entered into: here, when [NAME] and licence are executed on behalf of the [COMPANY]. Either at that point in time, there was the requisite authority to affix a seal under s 4(5) and bind [COMPANY], or there was not. In my opinion, that is the way s 4(5) is intended to operate. 459 The consequence is that none of the impugned [NAME] and licence were executed by the [NAME] in accordance with the [NAME] because the seal of the [NAME] was not affixed in compliance with s 4(5). I do not accept [NAME]'s contention that a later authority purportedly given under s 4(5) and after execution of a contract, would suffice. Given the purpose of a seal, either the authority to contract exists, or it does not. [NAME] relied upon the decision of [NAME] in R v [NAME] (No 9) [2001] TASSC 97; 162 FLR 290 at [28]-[33]. That was a collateral challenge to, amongst [NAME] things, a delegation to grant a fishing permit, in the context of a fisheries prosecution. A delegation was required by the Act to be "by writing under its common seal". The terms of s 10 of the Fisheries Administration Act 1991 (Cth) did not contain a provision equivalent to s 4(5) of the [NAME]. Rather s 10 provided that the seal "must not be used except as authorised by the Authority". There were several challenges to the delegations, including several involving the affixing of the seal. There were two meetings of the Australian Fisheries Management Authority (AFMA) where the affixing of the seal to the delegations could have been authorised as s 10 required: one in January 1992 and one in October 1992. [NAME[NAME] upheld the argument that the authorisation could not have been given at the January meeting because AFMA did not come into existence until the commencement of the Fisheries Administration Act on 3 February 1992. [NAME[NAME] did however find that at the October 1992 meeting, the Board authorised, by reason of general resolution about delegations, a delegation made under seal in December 1992. The permits in question were not issued until 15 January 1993. Thus, both the delegation itself and the act on which the delegation (the granting of the permit) occurred after the authority was given by the AFMA Board. 460 On any view, that is the reverse of the chronology in the present proceeding. 461 There also remains the fact that the authorities which were issued did not authorise [NAME] [NAME] to affix the seal, nor could they have, unless she held one of the two positions set out in the authorities signed by the [NAME] to affix the seal. Contrary to the situation in R v [NAME] (see [NAME] at [33]) the [NAME] is prescriptive about the manner in which documents can be executed under seal. Although the [NAME] is not prescriptive about the persons to whom authority may be given to execute documents under seal, the authorities signed by the [NAME] under s 4(5) prescribed the persons who had authority to affix the seals, being [NAME] and an executive member of [NAME]. The statute, through s 4(5) gives legal effect to those authorities in their terms, and only in their terms. 462 Further, reliance by [NAME] on the presumption in s 4(6) must be rejected in circumstances where, as here there is a challenge to the validity of the affixing of the seal. Section 4(6) sets out a rebuttable presumption, nothing more. That was the approach taken by [NAME] in R v [NAME]: see [21]. 463 The requirements of s 4(5) are no mere formalities: what [COMPANY] is doing is dealing with land it holds for the benefit of [NAME]. It is a statutory trustee: see s 5(1)(b) and [NAME] at [128] ([NAME] and [NAME] JJ); [NAME] at [89], where [NAME[NAME] said: However, the fact that the [COMPANY] was subject to express constraints in ss 5, 12, and 19 of the ALRA as to how it can deal with the land was further indication that the trust in question was not a trust in an ordinary sense, but in the non-technical sense for statutory purposes... 464 [COMPANY] is entitled to deal with [NAME] land only in the way the [NAME] authorises. Otherwise, the interests of [NAME] and [NAME] in their land are rendered vulnerable to interference and diminution outside the framework the Act has created. I do not accept the submissions of [NAME], relying on the principles of statutory construction set out in [NAME], that there is a basis in the text, context and purpose of the [NAME], and Pt II in particular, to find that Parliament intended that non-compliance with s 4(5) would not affect the validity of the act purporting to be authorised by the affixing of the seal. For the reasons I have set out above, the seal of the [COMPANY] is the way in which the authority given to the [COMPANY] is made clear to those who would contract with it, those who are affected by its actions and those whom it purports to empower. A legislative choice was made by the Parliament about the level of prescription to attach to how that authority was to be given. 465 Unsurprisingly, when what was in issue was the giving of authority to a [NAME] to interfere with the proprietary interests of [NAME], granted and recognised under the very same piece of legislation and for whose benefit the [COMPANY] performs its functions, a relatively high level of prescription was imposed by Parliament, in the terms of s 4(5). There is prescription as to who is to hold the common seal and how the authority to affix the seal is to be given and by whom that authority was to be given. The Parliament went so far as to prescribe how many members of the [COMPANY] would be needed to give that authority, again clearly conscious of the serious effects of an exercise of the [NAME]' powers on the proprietary interests of [NAME] and communities. 466 Members of [COMPANY] are appointed by the Minister: see s 7(2). They must all be "[NAME] living in the area of the Land Council in the area of which the land of the [COMPANY] is situated", or be [NAME] whose names are set out on a register kept by a Land Council: s 7(6). 467 The purpose of specifying, in s 4(5), a minimum number of [COMPANY] members who must authorise affixing a seal is clearly intended to prevent abuses of power by individual members of [COMPANY], who are, given the terms of s 7(6), likely to have an interest in the land being dealt with, or be connected to [NAME] who do. 468 To that extent, the need for the Court to be satisfied that it is a "purpose of the legislation that an act done in breach of the provision should be invalid" (see [NAME] at [93]) is in my opinion clearly made out. 469 It should be recalled here that until 10 November 2016, the [NAME] was constituted by the [NAME] and [NAME]: see [91] above. Perhaps three of these [NAME] would have authorised affixing the [NAME] seal to the impugned [NAME]. Perhaps not. Certainly on the evidence the [NAME] would not have done so. There is no evidence about the [NAME] four individuals. Of course, without that authority, the lease transactions could not be completed. How the Minister came to appoint new members in November 2016, and how he chose them, was not explained in the evidence. But the importance of the need for contemporaneous written authority is made clear on the facts. 470 [NAME] submits that the effects on [NAME] and the "inconvenience" that could result from construing non-compliance with s 4(5) as going to validity are reasons to avoid such a construction. [NAME] relies on the authorities to which the High Court referred in [NAME] at [93] and [97]. As to the latter, the proposition at [97] of [NAME] relates to "public inconvenience", not "inconvenience" as between parties. Those situations are rare, given that any finding of invalidity in an exercise of public power is likely, often to a significant extent, to be "inconvenient" for one or more of the persons affected. Examples of instances where breaches of a provision have not invalidated an act due to "serious general inconvenience" are cited in the Privy Council decision of [ADDRESS] Co v Normandin [1917] AC 170 at 175 (which was cited in [NAME] at [97]), and include breaches of such provisions as provisions for holding sessions at particular times and places, provisions as to rates, and provisions as to justices acting without having taken the prescribed oath. In [NAME] case cited by [NAME], Clayton v Heffron [1960] HCA 92; 105 CLR 214 at 247, the provision and inconvenience [NAME]: …the invalidation perhaps at some future time of a constitutional provision possessing all the outward appearances of a valid law on the ground that when it was made managers of the Council had not met managers of the Assembly before the members of the two Houses were required by the Governor to meet. 471 These examples are self-evidently of a different nature to a provision such as s 4(5), read with s 4(3), and the "inconvenience" currently being examined. The [NAME] is not a statute directed at the general public in any event: it is a statute directed at the protection of [NAME] rights and interests in land, once they have been granted. To construe s 4(5) as not going to validity would not advance that protective purpose, and would place the "convenience" of [NAME] (such as [NAME]) ahead of the interests of [NAME] and communities. 472 Where the [NAME] intended to give preference to the rights of [NAME], and in particular [NAME] who acquire an interest without notice of any irregularity or unlawfulness, it says so expressly: see for example s 19(9). Section 19(6), although the extent of its effectiveness is a matter of debate, is [NAME] example of a legislative intention to provide for the effects on [NAME] of non-compliance with a specific requirement in the [NAME]. There are no such express provisions touching on non-compliance with s 4(5) and that, in my opinion, is a factor of some significance. 473 I therefore reject [NAME]'s proposition that in relation to any of the impugned [NAME], there was a legally effective "grant" under s 19(3) or (4A) (or indeed under s 19(2)(c) as [NAME] for [NAME] submitted was the source for the grant of the lease to [NAME]). These findings say nothing about whether there is an agreement, enforceable in equity. I need not make any such findings, because they do not touch the validity of the direction given to the [COMPANY] under s 19(5). As I have found, the s 19(5) direction has not been successfully challenged, so the direction stands. The [COMPANY] remains subject to a valid direction from the Land Council under s 19(5), and it is required by the terms of s 5(2) to act in accordance with that direction. It would seem likely each of the [NAME] has an equitable interest arising from, at least, an agreement by the [COMPANY] to grant a lease to each of them, but the more critical point is that the [NAME] remains obliged to act in accordance with the direction of [NAME], unless that direction is rescinded. 474 [NAME], and [NAME], will be free to take whatever action they consider, and are advised, may be appropriate to move forward with [NAME], if that is what they decide to do. 475 Given the conclusion I have reached, there is no need to deal, any more than I have already in determining the argument about the affixing of the seal, with the [NAME] contention of the applicants that the failure to exchange counterparts meant there had been no "grant".

The operation and effect of s 19(6) on the grants and the [NAME] decision 476 In circumstances where I have not upheld any of the applicants' grounds of review, it is not necessary for me to reach a concluded view on the operation of s 19(6). The construction and operation of s 19(6) was very much at the heart of this proceeding, and a considerable amount of time in written and oral argument was spent on it. I have therefore considered carefully whether I should express an opinion about the proper construction and operation of s 19(6). I have decided it would not be appropriate to do so. It is a question of some significance, and it should await determination in a case where the Court makes a clear finding of non-compliance with s 19(5). One of the main reasons I have reached that view is because it seems to me that a clear finding about non-compliance with s 19(5), and subsidiary findings about how that non-compliance occurred, its nature and extent, would inform the application of the competing constructional choices about s 19(6), because it would provide a concrete situation against which those competing constructions could be tested. 477 For the purposes of s 39B of the Judiciary Act, the applicants, ultimately, did not contend that s 19(6) was ineffective to protect a direction of the Land Council under s 19(5) from being set aside, or declared invalid, by reason of a failure by the Land Council to form a lawful state of satisfaction in the manner I have set out at [376]. That the applicants did not press the Court, for example, to distinguish Commissioner of Taxation v [NAME] [COMPANY] [2008] HCA 32; 237 CLR 146, and take an approach that was more akin to that taken by the High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; 211 CLR 476 to a full privative clause, is not determinative. Such an argument remains open. In my opinion, there remain real constructional choices about the scope and operation of s 19(6). They should, however, be decided in a case where they need to be decided. 478 Similarly, because I have not found any of the applicants' grounds of review to be made out, I do not need to consider the applicants' principal contentions designed to avoid the operation of s 19(6): namely that s 19(6) cannot and is not intended to protect a direction by a Land Council under s 19(5) from review under the AD(JR) Act and the grant of relief under that Act. As I have noted earlier in these reasons, the applicants' argument on this point was one that does not appear to have been raised before, but it is not to be discounted on that basis. It relies, with good reason, on the terms and operation of the s 4 of the AD(JR) Act, in particular given the [NAME] is an earlier piece of Commonwealth legislation. That argument, which deserves serious consideration, should also await a case where it needs to be determined.

Appropriate relief 479 The applicants have succeeded in their contention about the failure to comply with s 4(5) of the [NAME] in relation to the affixing of the seals. At present, it seems to me the most appropriate relief would be declaratory relief on this issue. As I have noted above, it is likely this non-compliance, as a matter of practicality, can and will be addressed by [NAME]. Whether or not the status quo, as maintained by the undertakings given to the Court, in terms of no steps being taken to give [NAME] any formal effects under the Land Title Act (NT) or the execution or re-execution of the impugned [NAME] and licence, should continue until further steps have been taken to comply with s 4(5), is, amongst [NAME] matters, something on which I will give the parties an opportunity to attempt to agree, or alternatively to make submissions. 480 The parties will also be given an opportunity to agree on appropriate orders as to costs, in a lump sum form. Failing agreement, there will be directions for a process so that the Court can make lump sum orders as to costs, after considering the parties' submissions about what costs orders are appropriate given the limited success of the application. I certify that the preceding four hundred and eighty (480) numbered paragraphs are a true copy of the Reasons for Judgment herein of the [NAME].

Associate: Dated: 2 February 2018

SCHEDULE OF PARTIES NTD 60 of 2016 Respondents [RESPONDENT] Respondent: [redacted] Respondent: [redacted] Respondent: [redacted]