COURT
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Olney J.(1)

CWDS
  Aboriginal Land Rights - application for the determination of a traditional
land claim - recommendation by Aboriginal Land Commissioner that land be
granted to a land trust - withdrawal of part of claim prior to consideration
of report by Minister - purported withdrawal of withdrawal - Minister
proposing to consider report on the basis that he had no power to recommend
grant of land covered by withdrawal - whether Minister's power to recommend
grant of land recommended by Commissioner affected by withdrawal - judicial
review of Minister's proposed decision.
  Aboriginal Land Rights (Northern Territory) Act 1976, ss. 3(1), 11(1),
11A(1) and (2), 12(1), 50(1)(a) and 67A.
  Administrative Decisions (Judicial Review) Act 1977, ss. 3(1), 5(1).
  The Queen v Toohey and another; ex parte Meneling Station Pty Ltd, 158 CLR.
  Minister for Aboriginal Affairs and Another v Peko-Wallsend and Others, 162
CLR 24

HRNG
DARWIN
#DATE 15:4:1991
  Counsel for applicants
  and second cross-respondent         :      Mr K.R. Howie
  Solicitors for applicants<                 Aboriginal Legal Aid Service,
  and second cross-respondent         :      Katherine Regional Office
  Counsel for first respondent        :      Mr Trevor Riley QC and
                                             Mr S. Ridgway
  Solicitor for first respondent:            Australian Government Solicitor
  Counsel for second and fourth
  respondents                         :      Mr T. Pauling QC
  Solicitor for second and<                  Solicitor for the Northern
  fourth respondents                  :      Territory
  Counsel for third respondent        :      Mr P. Barr
  Solicitor for third respondent:            Mr P. Barr
  Counsel for first cross-respondent  :      Mr B. Midena
  Solicitor for fourth respondent     :      Senior Legal Advisor,
                                             Northern Land Council

JUDGE1
  The applicants seek a review of a proposed decision of the first respondent
(the Minister) to exercise his functions pursuant to subsection 11(1) of the
Aboriginal Land Rights (Northern Territory) Act 1976 (the Land Rights Act) in
relation to a recommendation that land be granted to a Land Trust contained in
a report made pursuant to paragraph 50 (1)(a) of the Land Rights Act.  It is
the Minister's intention to exercise his functions on the basis that the
traditional land claim giving rise to the report and recommendation has been
withdrawn in respect of part of the land recommended for grant.
2.  The traditional land claim giving rise to the report is commonly known as
the Mataranka Area Land Claim and the report is for convenience referred to as
the Mataranka report.
3.  In the Mataranka report, which was forwarded to the Minister and the
Administrator of the Northern Territory on 14 December 1988, the Aboriginal
Land Commissioner found that named persons (including each of the applicants)
are the traditional Aboriginal owners of certain land and recommended to the
Minister that the land be granted to a Land Trust pursuant to sections 11 and
12 of the Land Rights Act.  The land recommended for grant included areas
identified in the traditional land claim and in other relevant documents as
areas 4, 5 and 6.
4.  The Minister has received advice that the traditional land claim in so far
as it related to areas 4, 5 and 6 has been withdrawn and that he cannot
recommend to the Governor-General that a deed of grant be executed and
delivered to a Land Trust in respect of those areas.  The Minister proposes to
exclude areas 4, 5 and 6 from consideration when exercising his function to
decide what recommendation, if any, he should make to the Governor-General for
the granting of the land recommended for grant.
5.  This application is brought pursuant to subsection 5(1) of the
Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) which
provides:
        5.     (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 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;
        (h)    that there was no evidence or other material to
               justify the making of the decision;
        (j)    that the decision was otherwise contrary to law.
6.  By virtue of subsection 3(1) of the ADJR Act:
        "decision to which this Act applies" means a decision of an
        administrative character made, proposed to be made, or
        required to be made, as the case may be (whether in the
        exercise of a discretion or not) under an enactment, other
        than a decision by the Governor-General or a decision
        included in any of the classes of decisions set out in
        Schedule 1;
7.  The grounds upon which relief is sought are those mentioned in paragraphs
(f) and (j) of subsection 5(1).  Whether or not the Minister is able, in the
facts of the case, to recommend a grant of areas 4, 5 and 6, or part thereof,
depends upon the proper construction of the Land Rights Act.  I am therefore
of the view that the proposed decision of the Minister to exercise his
functions under section 11 as if he has no power to recommend a grant of areas
4, 5 and 6, or part thereof, is a decision to which the Act applies and that
the grounds upon which relief is sought are grounds properly available to be
relied upon.
8.  The applicants claim to be persons aggrieved by the proposed decision by
reason of the fact that it will remove from the Minister's consideration land
which the Aboriginal Land Commissioner recommended should be granted to a Land
Trust for the benefit of Aboriginals, including the applicants.  No attack has
been made on the standing of the applicants to bring this application.
9.  I am satisfied that the Court has jurisdiction to review the Minister's
proposed decision.
10.  The parties originally named as respondents to the application are the
Minister (first respondent), the Northern Territory Minister for Lands and
Housing (second respondent) and Banibi Pty Ltd (third respondent). On 28
February 1991 I ordered that the Northern Territory of Australia (NT) be
joined as a respondent and gave leave to the NT to cross-claim against
Northern Land Council (NLC) and Jilkminggan Community Incorporated
(Jilkminggan) and for that purpose to add those bodies as cross-respondents.
Although no cross-claim has yet been filed, NLC and Jilkminggan were
represented at and took part in the subsequent proceedings as if they were
parties to the application.
11.  The applicants seek the following relief:
        1.     A declaration that upon the proper construction of the
               Land Rights Act the claim to Areas 4, 5 and 6 of the
               land claim has not been withdrawn.
        2.     An order pending the final determination of the issues
               raised by this Application that the Second Respondent
               refrain from granting freehold title to the Third
               Respondent in respect of any of the land in Areas 4, 5
               and 6 of the land claim, or otherwise granting any
               estate or interest in any of the said land.
        3.     Such other declaration or order that the Court
               considers appropriate.
        4.     Costs.
12.  The relief sought in paragraph 1 does not exhaustively reflect the case
put on behalf of the applicants in that alternative submissions were made
first that the withdrawal of the claim did not deprive the Minister of the
power to recommend a grant of the land and second that the withdrawal was
subsequently withdrawn.  Nothing turns upon the question of whether the relief
sought would necessarily have answered all of the issues which the case
raises.
13.  On 28 February 1991 I ordered that the question of whether the Minister
should treat the traditional land claim to areas 4, 5 and 6 as having been
withdrawn be tried as a preliminary issue.  Other orders were made to
facilitate such a hearing.  No order was made in response to paragraph 2 of
the claim for relief but when the preliminary issue came on for hearing on 25
March 1991 counsel for the applicants read a letter written by the second
respondent to the applicants' instructing solicitors in which an undertaking
is given not to take any action to grant freehold title to the land in
question without prior notice to the applicants.  In these circumstances the
applicants do not press their claim for interlocutory injunctive relief
against the second respondent.
14.  Upon the hearing of the preliminary issue the parties tendered by consent
a volume of documents which it was agreed contained all of the evidence
relevant to that issue.  There are no disputed facts.  In the following 6
paragraphs I will endeavour to summarise the facts as disclosed in the
documents tendered.
1.      On 14 November 1983 an application was made to the Aboriginal Land
Commissioner by NLC on behalf of Aboriginals claiming to have a traditional
land claim to certain land.  Subsequently, further similar applications were
made amending the original application and on 29 April 1986 a consolidated
application was made.  The application as finally framed is known as the
Mataranka Area Land Claim.  (In order to avoid the occasion for confusion
between the application made to the Aboriginal Land Commissioner and the
application in these proceedings, I will refer to the former as the land claim
and to the persons on whose behalf it was made as claimants rather than as
applicants.)
2.      The land claim related to seven areas of unalienated Crown land which
are situated either in whole or in part within the outer boundaries of the
pastoral leasehold property known as Elsey Station of which the third
respondent (Banibi) is the pastoral leaseholder.  During the course of the
inquiry conducted by the Aboriginal Land Commissioner, NLC on behalf of the
claimants, withdrew the claim to certain portions of the claimed land.  The
balance of the claimed land (which includes areas 4, 5 and 6) constitutes the
land which the Commissioner recommended for grant.
3.      The persons found to be the traditional Aboriginal owners of the land
recommended for grant are members of Jilkminggan.
4.      By a deed bearing date 23 June 1989 made between Banibi, NLC,
Jilkminggan and the NT (the Elsey agreement) it was agreed, inter alia, that
        a)     NLC on behalf of the claimants would withdraw the land
               claim to areas 4, 5 and 6;
        b)     Banibi would surrender certain identified portions of
               the Elsey Station pastoral lease to the NT;  and
        c)     NT would accept the surrender and thereupon grant the
               same land to Jilkminggan for an estate in fee simple
               pursuant to the Crown Lands Act (NT).
5.      On 9 November 1989 NLC forwarded to the Office of the Aboriginal Land
Commissioner in Darwin a document dated 7 November 1989, the full text of
which is set out below:
                 ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) ACT 1976
                             NOTICE OF WITHDRAWAL OF CLAIM
        PART OF MATARANKA AREA LAND CLAIM NO. 69
        The Northern Land Council on behalf of Aboriginals claiming
        to have a traditional land claim to unalienated Crown Land
        in the Mataranka region of the Northern Territory hereby
        applies for a withdrawal to parts of their claim.
        DESCRIPTION OF THE LAND CLAIMED
        Area  4:      All that piece of land in the Northern Territory
                      of Australia being the Urapunga Stock Route
                      commencing at the western boundary of Pastoral
                      Lease 593, Elsey Station, and extending in an
                      easterly direction to and including Crescent
                      Lagoon, as shown hatched on the attached plan.
        Area  5:      All that parcel of land in the Northern
                      Territory of Australia being the Section of the
                      Birdum Stock Route extending from a point more
                      or less opposite Warlock Ponds and then in a
                      northerly direction to the southern boundary of
                      NT Portion 2255 as shown hatched on the attached
                      plan.
        Area  6:      All that parcel of land being NT Portion 916
                      located between Elsey, Moroak and Roper Valley
                      Pastoral Properties as shown hatched on the
                      attached plan.
        Dated this 7th day of November 1989.
        (Signed)
        Sean McLachlan
        for IAN L. GRAY
        Solicitor for the Claimants
6.      By letter dated 25 May 1990 NLC wrote to the Minister advising that
the future of the Elsey agreement had been placed in doubt by reason of
concern which had been expressed by claimants about some of its terms.  It is
unnecessary at this stage of the proceedings to explore the basis of the
claimants' concern, but rather it is sufficient to refer to the following 3
paragraphs of the letter:
        Meanwhile our principal concern is the future of the land
        claim.  Pursuant to the terms of the Agreement and by notice
        dated 7 November 1989 an application was made for withdrawal
        of the claims over areas 4, 5, 6.  A copy of this Notice was
        forwarded to you under cover of my letter of 28 March 1990.
        I have been advised by the Aboriginal Land Commissioner that
        he too has forwarded to you a copy of the Notice of Withdrawal.
        Whilst I have suggested in the attached letters of Banibi
        and the NT Government that an application will be made to
        the Aboriginal Land Commissioner to reinstate the land
        claim, on further consideration it is our view that no such
        application is necessary and that there is no doubt that the
        Minister has the power to recommend to the Governor General
        a grant of the land once he has received recommendations
        from an Aboriginal Land Commissioner.  This of course is the
        position in this case.
        The claimants have requested that, as a matter of urgency,
        the NLC take whatever steps are available to preserve the
        land claim pending further discussion with the other parties
        to the agreement.  Accordingly, and pending further advice
        from us, I now request that you treat the Notice of
        Withdrawal dated 7 November 1989 as itself withdrawn.
15.  The scheme of the Land Rights Act in so far as it relates to traditional
land claims, and the respective roles of the Aboriginal Land Commissioner and
the Minister in that scheme have been exhaustively canvassed by the High Court
on more than one occasion and it is unnecessary to repeat here what has been
said with greater authority elsewhere.  I refer in particular to The Queen v
Toohey and another; ex parte Meneling Station Pty Ltd 158 CLR 327 and Minister
for Aboriginal Affairs and another v Peko-Wallsend Ltd and others 162 CLR 24.
It is however necessary to canvass the relevant provisions of the Land Rights
Act in order to understand the issues which are to be addressed, and in the
hope of achieving clarity I will set them out to the extent that they are
applicable to the facts of this case in what is intended to be a logical
sequence:
        3(1)   ......
               "traditional land claim", in relation to land, means a
               claim by or on behalf of the traditional Aboriginal
               owners of the land arising out of their traditional
               ownership;
        50.    (1)    The functions of a Commissioner are -
        (a)    On an application being made to the Commissioner by or
               on behalf of Aboriginals claiming to have a
               traditional land claim to an area of land, being
               unalienated Crown land or alienated Crown land in
               which all estates and interests not held by the Crown
               are held by, or on behalf of, Aboriginals -
               (i)    to ascertain whether those Aboriginals or any
                      other Aboriginals are the traditional Aboriginal
                      owners of the land;  and
               (ii)   to report his findings to the Minister and to
                      the Administrator of the Northern Territory,
                      and, where he finds that there are Aboriginals
                      who are the traditional Aboriginal owners of the
                      land, to make recommendations to the Minister
                      for the granting of the land or any part of the
                      land in accordance with sections 11 and 12;
        11.    (1)    Where -
        (a)    a Commissioner has, before the commencement of the
               Aboriginal Land Rights Legislation Amendment Act 1982,
               recommended, or, after the commencement of that Act,
               recommends, to the Minister in a report made to him
               under paragraph 50 (1)(a) that an area of Crown land
               should be granted to a Land Trust for the benefit of
               Aboriginals entitled by Aboriginal tradition to the
               use or occupation of that area of land, whether or not
               the traditional entitlement is qualified as to place,
               time, circumstance, purpose or permission;  and
        (b)    the Minister is satisfied -
               (i)    that the land, or a part of the land, should be
                      granted to a single Land Trust to be held for
                      the benefit of Aboriginals who are the relevant
                      Aboriginals in relation to that land or that
                      part of that land;  or
               (ii)   that different parts of the land should be
                      granted to different Land Trusts so that each
                      Land Trust holds the land granted to it for the
                      benefit of Aboriginals who are the relevant
                      Aboriginals in relation to that last-mentioned
                      land,
        the Minister shall -
        (c)    establish -
               (i)    in a case where he is satisfied that the land,
                      or a part of the land, should be granted to a
                      single Land Trust - a single Land Trust under
                      section 4 to hold that land, or that part of
                      that land, for the benefit of Aboriginals who
                      are the relevant Aboriginals in relation to the
                      land, or the part of the land, proposed to be
                      held by that Land Trust;  or
               (ii)   in a case where he is satisfied that different
                      parts of the land should be granted to different
                      Land Trusts - 2 or more Land Trusts under
                      section 4 respectively to hold those different
                      parts of that land for the benefit of
                      Aboriginals who are the relevant Aboriginals in
                      relation to the parts of the land respectively
                      proposed to be held by each of those Land
                      Trusts;
        (d)    where land in respect of which a Land Trust has been
               or is proposed to be established in accordance with
               paragraph (c) is, or includes, alienated Crown land,
               ensure that the estates and interests in that land of
               persons (other than the Crown) are acquired by the
               Crown by surrender or otherwise;  and
        (e)    after any acquisition referred to in paragraph (d) has
               been effected in relation to land and a Land Trust has
               been established in accordance with paragraph (c) in
               respect of that land, recommend to the Governor-General
               that a grant of an estate in fee simple in
               that land be made to that Land Trust.
        12.    (1)    Subject to this section, on the receipt of a
        recommendation under section 10 or 11 with respect to land,
        the Governor-General may -
        (a)    in the case of a recommendation under sub-section
               10(1) or (2A) or section 11, not being a
               recommendation that includes a recommendation under
               sub-section 11(5) - execute a deed of grant of an
               estate in the land in accordance with the
               recommendation and deliver it to the grantee;
        67A.   (1)    Where an application referred to in paragraph 50
        (1)(a) in respect of an area of land was made before the
        date of commencement of this section -
        (a)    any grant of an estate or interest in that area of
               land, or in a part of that area of land, that was
               purportedly effected on a day before that traditional
               land claim, in so far as it related to the area of
               land to which the grant relates, was finally disposed
               of, being a day after 28 May 1986 and before the day
               of commencement of this section, shall be taken to be,
               and at all times to have been, of no effect;  and
        (b)    any grant of an estate or interest in that area of
               land, or in a part of that area of land, that was
               purportedly effected on a day before that traditional
               land claim, in so far as it relates to the area of
               land to which the grant relates, is finally disposed
               of, being the day of commencement of this section or a
               later day, shall be of no effect.
               (2)    Where an application referred to in paragraph 50
        (1)(a) in respect of an area of land is made on or after the
        day of commencement of this section, any grant of an estate
        or interest in that area of land, or in a part of that area
        of land, that is purportedly effected on a day before that
        traditional land claim, in so far as it relates to the area
        of land to which the grant relates, is finally disposed of,
        being the day on which the application is made or a later
        day, shall be of no effect.
               (3)    Where an application referred to in paragraph 50
        (1)(a) in respect of an area of land was made before the day
        of commencement of this section any reservation, dedication
        or setting aside of that area of land, or a part of that
        area of land, that was purportedly effected on a day before
        that traditional land claim, in so far as it relates to the
        area of land so reserved, dedicated or set aside, is finally
        disposed of, being the day of commencement of this section
        or a later day, shall be of no effect.
               (4)    Where an application referred to in paragraph 50
        (1)(a) in respect of an area of land is made on or after the
        day of commencement of this section, any reservation,
        dedication or setting aside of that area of land, or a part
        of that area of land, that is purportedly effected on a day
        before that traditional land claim, in so far as it relates
        to the area of land so reserved, dedicated or set aside, is
        finally disposed of, being the day on which the application
        is made or a later day, shall be of no effect.
               (5)    A traditional land claim shall be taken not to
        have been finally disposed of in so far as it relates to a
        particular area of land until -
        (a)    the claim, or the claim, in so far as it relates to
               the area of land, is withdrawn;
        (b)    the Governor-General executes a deed of grant of an
               estate in fee simple in the area of land, or in an
               area of land that includes the area of land, under
               section 12;
        (c)    the Commissioner informs the Minister, in the
               Commissioner's report to the Minister in respect of
               the claim, that the Commissioner finds that there are
               no Aboriginals who are the traditional Aboriginal
               owners of the area of land;  or
        (d)    where the Commissioner finds that there are
               Aboriginals who are the traditional Aboriginal owners
               of the area of land, or of an area of land that
               includes the area of land - the Minister determines,
               in writing, that the Minister does not propose to
               recommend to the Governor-General that a grant of
               estate in fee simple in the area of land, or in an
               area of land that includes the area of land, be made
               to a Land Trust.
        (Section 67A came into force on 5 June 1987).
16.  The Mataranka Land Claim was a claim in relation to land by or on behalf
of the traditional Aboriginal owners of land arising out of their traditional
ownership of the land.  The land claim was made by way of application to the
Aboriginal Land Commissioner who, after inquiry, ascertained that there were
traditional Aboriginal owners of the land and who reported his findings to the
Minister and the Administrator.  In his report the Commissioner made
recommendations to the Minister for the granting of the land in accordance
with sections 11 and 12.  The Minister has yet to exercise his functions under
paragraphs (b), (c), (d) and (e) of subsection 11(1) but he says that when he
does so he will treat the Commissioner's recommendation as no longer applying
to areas 4, 5 and 6 for the reason that the traditional land claim to those
areas has been withdrawn.  The Minister has not determined in writing that he
does not propose to recommend to the Governor-General that a grant of an
estate in fee simple in areas 4, 5 and 6 be made.
17.  The short question on the trial of this preliminary issue is whether the
purported withdrawal of a claim to land after the Commissioner has recommended
that the land be granted in accordance with sections 11 and 12 affects the
power of the Minister to recommend to the Governor-General that a grant of
that land be made to a Land Trust.
18.  For the applicants, Jilkminggan and NLC, it is argued that once a
Commissioner has recommended that land be granted, no action on the claimants'
part can deprive the Minister of the power to make a recommendation to the
Governor-General pursuant to paragraph 11(1)(e). Each of the 4 respondents has
made contrary submissions which rely for the most part upon the provisions of
subsection 67A (5).
19.  Section 67A is not without its problems, but once the difficult drafting
style is overcome and the thrust of the section detected, the intention is
clear, as the heading to the section suggests, namely to restrict the granting
of estates or interests in land while it is subject to a traditional land
claim. Each of subsections (1) to (4) is predicated by the making of an
application referred to in paragraph 50 (1)(a), and each seems to identify
such an application with a traditional land claim to the land in question.
Elsewhere in the Land Rights Act, notably in subsections 50(2B) and 50(3) the
terms "applicants" and "claimants" are used as if they are synonymous.
Although the definition of the term "traditional land claim" does not suggest
that such a claim exists only after an application has been made pursuant to
paragraph 50 (1)(a), there seems to be no reason to doubt that in subsection
67A (5) the term is used to refer to such an application.
20.  Section 67A was Parliament's response to some of the problems thrown up
by the High Court's decision in re Kearney; ex parte Japanangka 52 ALR 31
where it was held that the granting of leases over land the subject of an
application pursuant to paragraph 50(1) (thus rendering the land no longer
unalienated Crown land) did not deprive the Commissioner of jurisdiction to
hear the claim.
21.  So far as I can discern, the reference in paragraph 67A (5)(a) to the
withdrawal of a traditional land claim is the only reference in the Land
Rights Act to withdrawal.  The Act throws no light on how, when and by whom a
claim may be withdrawn.  However, paragraphs (b), (c) and (d) deal with
specific factual situations and in each case apply only where there has been a
land claim followed by a report pursuant to paragraph 50 (1)(a).   At least
two constructions are open.  First, it can be said that in the absence of any
specific limitation in paragraph (a), it contemplates that a claim may be
withdrawn at any time before it has otherwise been finally disposed of.
Second, it can be said that as paragraphs (b), (c) and (d) deal with the final
disposal of a claim after a report has been forwarded to the Minister, they
deal exhaustively with the circumstances under which there can be a final
disposal following a report, and that would eliminate the possibility of a
claim being withdrawn once the report has been made.  The applicants advocate
the latter construction and the respondents, the former. There is a possible
third approach, namely that even assuming that it is competent for a claim to
be finally disposed of by withdrawal following a report, such withdrawal does
not affect the powers and duties of the Minister pursuant to section 11.  In
other words, it could be said, and is said by the applicants, that even though
the claim may have been finally disposed of by withdrawal, the Minister may
nevertheless act upon the Commissioner's recommendation.
22.  I have no hesitation in rejecting the third alternative and this for the
reason that once a claim is finally disposed of (by withdrawal or otherwise)
the restraints of section 67A no longer apply.  It would be entirely
inconsistent with the policy of section 67A if, following a report and
recommendation (as in this case), the claim could be withdrawn to permit the
creation of other interests in the land (as was intended by the Elsey
agreement) but without affecting the Minister's power to recommend the
granting of an estate in fee simple in the same land to a Land Trust.  And by
much the same reasoning, I would reject the second alternative referred to
above.  To adopt the construction advocated by the applicants a compromise of
the type contemplated by the Elsey agreement would be rendered unattainable.
It would seriously limit the bargaining power of traditional owners once a
recommendation had been made.
23.  The fact that the traditional Aboriginal owners, through the appropriate
land council, have an interest in negotiating agreements in respect of land
which is subject to a traditional land claim is quite clearly demonstrated by
section 11A of the Land Rights Act which, in part, provides:
        11A.   (1)    A person who desires to obtain an estate or
        interest in land the subject of an application of the kind
        referred to in paragraph 50 (1)(a) may, before the land (in
        this section referred to as "the relevant land") is granted
        to a Land Trust, make representations to the Land Council in
        the area of which the relevant land is situated concerning
        the person's plans in respect of the relevant land.
               (2)    Subject to sub-section (3), a Land Council to
        which representations are made pursuant to sub-section (1)
        may, at any time before the relevant land is granted to a
        Land Trust, agree with the person who made the
        representations that it will, if the relevant land is
        granted to a Land Trust direct the Land Trust to grant an
        estate or interest in that land to that person and that
        agreement shall specify the terms and conditions on which
        the proposed grant is to be made.
24.  Section 11A does not cover the type of transaction contemplated by the
Elsey agreement whereby the traditional owners would obtain title to land
which is not available to be claimed under the Act in exchange for a release
of land which has been properly claimed and recommended, but it does add
weight to the suggestion land may be "subject to an application of the kind
referred to in paragraph 50 (1)(a)" right up until the time it is granted to a
Land Trust.  No distinction is made in section 11A between land which is
merely subject to a claim which has not been dealt with and land for which
there has been a recommendation for a grant.  Further support for this
approach is contained in the explanatory memorandum tabled in the House of
Representatives by the Minister for Aboriginal Affairs at the time of the
moving of the second reading of the Aboriginal Land Rights (Northern
Territory) Amendment Bill 1986 which became the Aboriginal Land Rights
(Northern Territory) Amendment Act 1987, Act No. 40 of 1987.  This bill
contained the provisions which later became sections 11A and 67A.  In
paragraph 51 of the memorandum the following comment is made in relation to
clause 33 of the bill, the clause containing the new section 67A:
        Clause 33:  Estates or interests not to be granted while
        land subject to traditional land claim
        51.    This clause will ensure that unalienated Crown land
               which is the subject of a traditional land claim
               cannot be alienated or be reserved, dedicated or set
               aside, between the date on which the land claim was
               made and the date when the claim was finally disposed
               of.  It would however remain open for such matters to
               be the subject of negotiation.  (See clause 8)
25.  Clause 8 of the explanatory memorandum dealt with the new section 11A. A
further amendment made by the same amending act was the introduction into
section 23 of the Land Rights Act (which deals with the functions of land
councils) of a new paragraph (e) providing that the functions of a land
council include the function:
        (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 a Land Trust - on
                      behalf of traditional Aboriginal owners (if any)
                      of that land and of any other Aboriginals
                      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 traditional Aboriginal owners of that
                      land or on behalf of any other Aboriginals
                      interested in the land;
Previously paragraph (e) had provided simply:
        (e)    to negotiate, on behalf of traditional Aboriginal
               owners of land in its area held by a Land Trust and
               any other Aboriginals interested in the land, with
               persons desiring to use, occupy or obtain an interest
               in that land;
26.  I have no difficulty in reaching the conclusion that the intention of the
amending legislation was to enhance the role of the land councils, on behalf
of traditional Aboriginals, to negotiate in relation to land subject to
traditional land claims and it would be contrary to that intention to construe
paragraph 67A (5)(a) in a manner that would restrict that capacity in
circumstances where there has been a recommendation that the land be granted
to a Land Trust.
27.  Consistent with the conclusions which I have expressed above, I am of the
opinion that a traditional land claim can be withdrawn at any time either
before or after the Commissioner has reported on the claim.  If paragraph 67A
(5)(a) was intended to apply only in the limited circumstances advocated by
the applicants, clear words to that effect would be required.
28.  I now turn to deal with two further aspects of the withdrawal in this
case. First, it is said by the applicants that the document dated 7 November
1989 was not a withdrawal of the claim but an application to withdraw.  I do
not think there is any merit in this assertion.  The document is headed
"Notice of Withdrawal of Claim" and although the text uses the words "hereby
applies for a withdrawal to parts of their claim" it was clearly intended as
formal notification by NLC of the performance of its contractual obligation
under the Elsey agreement to withdraw the claim to areas 4, 5 and 6.  The Act
has no procedure to deal with withdrawal, and after the Commissioner has
performed his function to inquire into and report upon a claim he has no
further standing in relation to the claim.  It is common cause that upon
receipt of the notice at the Office of the Aboriginal Land Commissioner it was
forwarded to the Minister for his information.  These facts appear in the
portion of NLC's letter to the Minister of 25 May 1990 quoted above.)  There
was never any suggestion that the withdrawal of the claim was conditional upon
the approval of either the Commissioner, the Minister or anyone else.  The
claim, in so far as it related to areas 4, 5 and 6 was withdrawn at the latest
when the Minister was notified of the withdrawal.
29.  The second point raised by the applicants is that in the letter of 25 May
1990 NLC requested that the Minister treat the Notice of Withdrawal as itself
having been withdrawn.  In my view, in the terms of section 67A (5), the claim
was finally disposed of upon it having been withdrawn.  That being so, the
only way to reinstate the claim would have been to make a new application
pursuant to paragraph 50 (1)(a). This option was in fact availed of in respect
of area 6 but it is not an option open in respect of areas 4 and 5 which are
stock routes and any new application would be caught by subsection 50 (2D)
which came into force on 1 March 1990.
30.  For the reasons I have outlined above I am of the opinion that the
traditional land claim in respect of areas 4, 5 and 6 has been withdrawn and
that upon the proper construction of the Land Rights Act, the effect of the
withdrawal is to prevent the Minister from recommending the granting of that
land pursuant to paragraph 11(1)(g).  In those circumstances the proposed
decision of the Minister neither involves an error of law nor is it otherwise
contrary to law.  There is therefore no basis upon which to interfere with the
proposed decision.  I would dismiss the application.