Minister for Lands, Planning and Environment v Griffiths & Ors [2004] NTCA 5

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Minister for Lands, Planning and Environment v Griffiths & Ors [2004] NTCA 5

PARTIES: MINISTER FOR LANDS, PLANNING AND ENVIRONMENT

v

ALAN GRIFFITHS AND WILLIAM GULWIN ON BEHALF OF THE NGALIWURRU AND NUNGALI PEOPLES
AND
LANDS AND MINING TRIBUNAL

TITLE OF COURT: COURT OF APPEAL OF THE NORTHERN TERRITORY

JURISDICTION: CIVIL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO: AP 18 of 2003 (20207368)

DELIVERED: 10 May 2004

HEARING DATES: 22, 23 March 2004

JUDGMENT OF: MARTIN (BR) CJ, MILDREN & RILEY JJ

CATCHWORDS:

ABORIGINAL AND TORRES STRAIT ISLANDERS - native title - Lands Acquisition Act (NT) 2001 - whether notices of acquisition valid - whether Minister can acquire native title interests alone - whether Minister can acquire land without acquiring the fee simple
WORDS AND PHRASES - construction of the words "for any purpose whatsoever" - whether power can only be exercised for a purpose "in relation to the Territory" - whether power can be exercised for any lawful purpose in respect of which the Legislation has powers to make laws
Pearce and Geddes, Statutory Interpretation in Australia, 5th ed, par [2.29] to [2.30]
Crowns Lands Act 1992 (NT), s 76; Interpretation Act, s 61; Lands Acquisition Act 1978 (NT), s 4(1), s 5A(1)(a), s 5A(1)(b), s 28A(4), s 33(1)(b), s 33(3)(b), s 38AA(2)(d), s 43, s 43(1)(b), s 45(1A), s 45A, s 46(1), s 48; Lands Acquisition Act 1955 (Cth), s 5(1), s 6; Native Title Act (1993)(Cth), s 24MD(2), s (6A), s (6B)(a), s 190A, s 238; Northern Territory (Self-Government) Act 1978 (Cth), s 50(1); Racial Discrimination Act 1975 (Cth)
Airservices Australia v Canadian Airlines International Ltd & Ors (2001) 202 CLR 133 at 271; Clunies-Ross v The Commonwealth (1984) 155 CLR 193 at 201; Commonwealth v Maddalozzo (1980) 29 ALR 161 at 169; Drew, Robinson & Co v Shearer & another (1914) 18 CLR 209 at 221; Fell v Fell (19922) 31 CLR 268 at 275; Foley v Padley (1983) 154 CLR 349 at 371; Julius v Bishop of Oxford (1880) 5 App Cas 214; Mabo & Anor v The State of Queensland & Anor (1988) 166 CLR 186; McCawley v The King & Ors (1919) 26 CLR 9 at 67; Murphyores Inc v The Commonwealth (1976) 136 CLR 1 at 12; Padfield v Minister of Agriculture (1968) AC 997 at 1033; State of South Australia v Tanner & Ors (1988-89) 166 CLR 161 at 180; State of Western Australia v The Commonwealth (Native Title Act case) (1994-95) 183 CLR 373 at 483-494; The Queen v Toohey, ex parte Northern Land Council (1981) 151 CLR 170 at 232-233; The Queen v Young (1999) 46 NSWLR 681; The Waterside Workers' Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 at 465-466; The Wik Peoples v The State of Queensland & Ors (1996) 187 CLR 1; Widgee Shire Council v Bonney (1907) 4 CLR 977 at 983, referred to
Andrews v Howell (1941) 65 CLR 255 at 281; Attorney-General of the Commonwealth v Schmidt & Anor (1961) 105 CLR 361 at 372; Chilton v Telford Development Corporation [1987] 1 WLR 872 at 878; Clissold & Ors v Perry (Minister for Public Instruction) (1904) 1 CLR 363 at 373; Clunies-Ross v The Commonwealth of Australia & Ors (1984) 155 CLR 193 at 198-200, applied

REPRESENTATION:

Counsel:
Appellant: T Pauling QC and R Webb
Respondent: J Basten QC and S Glacken

Solicitors:
Appellant: Department of Justice
Respondent: Northern Land Council

Judgment category classification: A
Judgment ID Number:
Number of pages: 39


IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Minister for Lands, Planning and Environment v Griffiths & Ors [2004] NTCA 5
No. AP 18 of 2003 (20207368)


BETWEEN:

MINISTER FOR LANDS, PLANNING AND THE ENVIRONMENT
Appellant

AND:

ALAN GRIFFITHS AND WILLIAM GULWIN ON BEHALF OF THE NGALIWURRU AND NUNGALI PEOPLES
First Respondent

LANDS AND MINING TRIBUNAL
Second Respondent

CORAM: MARTIN CJ, MILDREN AND RILEY JJ

REASONS FOR JUDGMENT

(Delivered 10 May 2004)

Martin (BR) CJ:

[1] I have had the opportunity of reading in draft the judgement of Mildren J. I agree that the appeal should be allowed. Subject to the qualifications that appear in the following reasons concerning the construction of s 43 of the Lands Acquisition Act (LAA), I agree with the reasons given by Mildren J.
[2] Section 43 is in the following terms:
Acquisition generally
(1) Subject to this Act, the Minister may acquire land under this Act for any purpose whatsoever -
(aa) if the acquisition is under an indigenous land use agreement as referred to in section 31A(a) - in accordance with the terms of the agreement and by causing a notice declaring the land to be acquired to be published in the Gazette;
(a) if the acquisition is by agreement with the owner of the land as referred to in section 31A(b) - by causing an instrument of transfer or other document evincing title to the land in the Territory to be registered under the Land Title Act by the Registrar-General; or
(b) if the pre-acquisition procedures in Parts IV and IVA as applicable have been complied with - by compulsory acquisition by causing a notice declaring the land to be acquired to be published in the Gazette.
(2) Where an application has been made under section 38 to have an objection to the acquisition heard by the Tribunal, subject to sections 44 and 45, the Minister must not acquire land the subject of the proposal until he or she has received and considered the recommendation of the Tribunal.
[3] In the Notice of Contention, the first respondent (the respondent) contended that the LAA does not confer power on the appellant (the Minister) to acquire Crown land or interests in Crown land otherwise than in the circumstances provided in s 76 of the Crown Lands Act. In addition, the respondent submitted that the LAA does not permit the acquisition of native title rights or interests for the purposes identified in the notices of proposal and proposed acquisition. These contentions were argued before the trial Judge, but his Honour did not determine these issues. They raise for consideration of this Court the extent of the Minister's power. In particular, the contentions require this Court to address the construction of the words "for any purpose whatsoever" as they appear in s 43(1).
[4] Prior to the Northern Territory (Self-Government) Act 1978 (Cth) (the Self-Government Act), the executive powers of acquisition of land in the Northern Territory were vested in the Commonwealth in accordance with the Lands Acquisition Act 1955 (Cth). Section 6 of that Act provided that the Commonwealth could acquire land "for a public purpose" either by agreement or by compulsory process. Section 5(1) of that Act defined "public purpose" in the following terms:
"Public purpose" means a purpose in respect of which the Parliament has power to make laws, and, in relation to land in a Territory, includes any purpose in relation to that Territory.
[5] The respondent submitted that the power contained in s 43 of the LAA in its present form is limited in the sense that it can only be exercised for a purpose "in relation to that Territory" as that phrase was used in the definition of "public purpose" found in the Commonwealth Lands Acquisition Act. In response, the Minister submitted that there was no justification for reading any limitation into the words "for any purpose whatsoever". Provided the powers are exercised for any lawful purpose in respect of which the Legislature has power to make laws, no restriction on the purpose for which the power of acquisition may be exercised should be implied. The words are unambiguous and should not be read down.
[6] Following the Self-Government Act, s 43 of the Lands Acquisition Act 1978 (NT) was enacted in the following terms:
43. Subject to this Act, the Minister may acquire land for public purposes by causing a notice declaring that land to be acquired to be published in the Gazette.
[7] In the 1978 Act, "public purpose" was defined as meaning:
a purpose in relation to the Territory and includes a purpose related to the carrying out of a function by a statutory corporation.
[8] Section 43 was amended in 1982 by omitting the words "acquire land for public purposes" and by substituting the words, "under this Act, acquire land." Hence s 43 read:
43. Subject to this Act, the Minister may, under this Act, acquire land.
[9] In 1998 the LAA was extensively amended. An evident purpose of the amendments was to ensure that future acquisitions of land pursuant to the LAA involving land that was or might be subject to native title interests complied with the Native Title Act 1993 (Cth) (the NTA). The NTA was a legislative response to the High Court Decision in Mabo v The State of Queensland (1988) 166 CLR 186. In 1998 the NTA was amended in response to the decision of the High Court in The Wik Peoples v The State of Queensland (1996) 187 CLR 1.
[10] Included in the extensive amendments to the LAA was the repeal of s 43 and the enactment of s 43 in its current terms. In effect, the words "for any purpose whatsoever" were added. Noting that these words were introduced into the LAA without comment, the respondent suggested they were intended to be mechanical in effect rather than significantly expanding the powers of the government. Counsel did not identify what mechanical effect should be given to those words.
[11] In my opinion, the history of the legislation does not support the respondent's contentions. The words added are of the broadest import. The Legislature must be taken to have intended that they carry some meaning.
[12] This Court should assume that when enacting the 1998 amendment the Legislature was aware of the history of the Act and of the interpretation that had been given to the expression "public purpose". In 1984, in the context of the Commonwealth Lands Acquisition Act 1955 in which the expression was defined in terms similar to the 1978 Northern Territory legislation, the expression was the subject of consideration by the High Court in Clunies-Ross v The Commonwealth of Australia and Ors (1984) 155 CLR 193.
[13] If the submission of the respondent is correct, in using the expression "for any purpose whatsoever" the Legislature meant no more than "for a public purpose" as the latter expression had been understood in relation to the 1955 Commonwealth Lands Acquisition Act. If the Legislature had intended such a consequence, there is no reason why those words could not have been reintroduced when the Act was amended in 1998. The Legislature chose not to revert to the 1978 wording but to employ significantly different wording.
[14] Against the background to which I have referred, in my opinion the history of the legislation tends to support the view that the Legislature intended by the words "for any purpose whatsoever" to create an executive power that is wider in its scope than the power that existed under the 1978 Northern Territory provisions.
[15] In addition, the legislative context in which s 43 operates weighs against the respondent's proposition. Section 6 of the Self-Government Act provides that the Legislative Assembly of the Northern Territory has powers to make laws for the peace, order and good government of the Territory. Section 50(1) provides that the power conferred by s 6 does not extend to the making of laws with respect of the acquisition of property "otherwise than on just terms". The LAA is expressed to be an Act "relating to the acquisition of land by the Territory" and s 5 provides that the "Act shall be read so as to provide for the acquisition of land on just terms". It is not in dispute that in respect of native title interests the LAA is intended to provide for acquisition and extinguishment of those interests in a manner consistent with the provisions of the NTA and the Racial Discrimination Act 1975 (Cth).
[16] Part IV of the LAA sets out the procedure to be followed if the Minister seeks to compulsorily acquire land. Notice must be given to any person with a registered interest or who claims to have an interest and, where native title rights and interests may be affected, notice must be served upon the representative of the Aboriginal/Torres Strait Islander body or bodies in relation to the land. Section 33 provides that the notice must contain a description of the land proposed to be acquired and "details of the manner in which it is proposed that the land, if acquired, will be dealt with". Section 34 sets out the procedure for objections. Provision is made for consultation and mediation (s 37).
[17] Section 38 provides that in the event of an objection, either the Minister or the person objecting may apply to the Lands and Mining Tribunal established by the Lands and Mining Tribunal Act to have the objection to the acquisition heard. The Tribunal is required to make a recommendation to the Minister and is directed by s 38AA(2) to take into account a number of identified matters.
[18] The role of the Tribunal is set out in Part V of the LAA. Part V contains a number of provisions relating to acquisitions generally, including s 43. Section 45 provides that where the Tribunal makes a recommendation in relation to a proposal to acquire an interest in land other than native title rights and interests, the Minister must not compulsorily acquire the interest unless the Minister has taken the Tribunal's recommendation into account. If the proposal involves the acquisition of native rights and interests and the Tribunal recommends against the compulsory acquisition of those rights and interests, the Minister must comply with the recommendation unless conditions specified in s 45(2) have been satisfied. Those conditions involve consultation and include a requirement that the Minister must comply with the recommendation unless "it is in the interests of the Territory not to comply with the recommendation". For the purposes of s 45, the expression "in the interests of the Territory" includes the social or economic benefit of the Territory (including of Aboriginal peoples and Torres Strait Islanders) and the interests of the relevant regional locality of the Territory (s 45(3)).
[19] In the face of a recommendation against the compulsory acquisition of native title rights and interests, if the Minister has undertaken appropriate consultation and if it is in the interests of the Territory not to comply with the recommendation, s 45(2A) enables the Minister to reject the recommendation and determine to compulsorily acquire the rights and interests. If requested, the Minister must provide reasons for the decision. A person aggrieved by a decision of a Minister to acquire land may apply to the Supreme Court for judicial review of the decision (s 45A).
[20] There is nothing in the legislative context to suggest that the legislation intended that the expression "for any purpose whatsoever" should be read as restricting the executive power to acquisitions for public purposes in relation to the Territory. The Act lays down a procedure for compulsory acquisition which is designed to ensure that if objection is taken the proposal is subject to review by an independent Tribunal. If the acquisition involves native title rights and interests, the Tribunal is required to take into account a wide range of specified interests of the native title claim group together with the economic or other significance of the acquisition to the Territory and to the region in which the land is situated. The Tribunal is also required to take into account the "public interest" in the acquisition. In addition, the Minister can only proceed with an acquisition that involves acquisition of native rights and interests in the face of a contrary recommendation by the Tribunal if "it is in the interests of the Territory not to comply with the recommendation" (s 45(2)(c)).
[21] It cannot be doubted that statutes which authorise compulsory acquisitions should not be construed as interfering with vested interests unless that intention is manifest (Clissold v Perry (1904) 1 CLR 363 at 373 per Griffith CJ). While a purposive construction is appropriate because it is important that the government be able to carry out its business of land management, it is important to bear in mind that the power, sometimes described as draconian, is a power that enables the executive to dispossess a citizen of that citizen's rights in property: Chilton v Telford Development Corporation [1987] 1 WLR 872 at 878.
[22] Counsel for the respondent referred to a number of High Court authorities concerned with compulsory acquisitions by the Commonwealth. The acquisition laws were made pursuant to the power in s 51(xxxi) of the Constitution which confers upon the Commonwealth the power to make laws with respect to the "acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws".
[23] As mentioned, s 6 of the Lands Acquisition Act 1955 (Cth) provided that the Commonwealth could acquire land "for a public purpose" and the High Court considered that provision in Clunies-Ross. Notwithstanding the broad definition of "public purpose" to which I have referred, the Court determined that the purpose must relate to the proposed use of the land to be acquired.
[24] In Clunies-Ross, the Court was concerned with the proposed compulsory acquisition of the plaintiff's house:
…not by reason of any need for or proposed active or passive use of that land but for the purpose of bringing about the exclusion of the plaintiff and his family from that Territory [the Territory of Cocos (Keeling) Islands] (198).
Speaking of the power to "acquire land for a public purpose", the joint judgment of six Judges said (198):
As a matter of language, a power to acquire land for a public purpose appears to us to be prima facie limited to an acquisition of land which is needed or which it is proposed to use, apply or preserve for the advancement or achievement of that purpose… Adapting words used in this Court in a different context, the "purpose of which [s. 6] speaks" is "the use to which" the land acquired "is to be put"…
[25] In rejecting the wider interpretation for which the Commonwealth contended, their Honours said (199-200):
If the power to acquire for a public purpose which the Act confers is construed as extending to purposes quite unconnected with any need for or future use of the land, the ministerial power thereby created would be surprisingly wide in that, subject only to monetary compensation, it would encompass the subjection of the citizen to the compulsory deprivation of his land, including his home, by executive fiat to achieve or advance any ulterior purpose which was a purpose in respect of which the Parliament has power to make laws or, in the case of land in a Territory, "any purpose in relation to that Territory". It is, in our view, unlikely that the Parliament would have intended to confer such a power other than by the use of clear words to that effect and subject to stringent and specially framed controls or safeguards against its abuse. Neither is to be found in the Act. As has been said, the language used is, prima facie, more appropriate to refer to a conventional power to acquire land because it is needed rather than to confer such an extraordinary power on the Executive. Apart from providing for disallowance by either House of Parliament (s. 12), the Act contains no special control or safeguard at all against executive abuse (my emphasis).
[26] Their Honours addressed the reliance by the Commonwealth upon the width of the power contained in s 51(xxxi) of the Constitution which empowers the Commonwealth to make laws with respect to "acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws". The definition of public purpose in the Commonwealth Lands Acquisition Act followed that wording. However, their Honours found that three principal considerations led them to the conclusion that even if a broad construction was given to s 51(xxxi), the provisions of the Commonwealth Lands Acquisition Act should be given a narrower construction.
[27] The principal reasons were as follows. First, the power to acquire property was not conferred merely in pursuance of the legislative power contained in s 51(xxxi). It was conferred pursuant to s 122 of the Constitution.
[28] Secondly, their Honours regarded the executive power of acquisition as different in nature from the legislative power of the National Parliament and held that an executive power to deprive a citizen of property by compulsory acquisition "should be construed as confined within the scope of what is granted by the clear meaning or necessary intendment of the words by which it is conferred…" (201).
[29] Thirdly, their Honours took the view that the scope of the executive power of compulsory acquisition was plainly intended to be narrower in a number of respects than the scope of the legislative power found in s 51(xxxi).
[30] There is considerable force in the appellant's submission that the considerations which led the majority to their conclusion in Clunies-Ross do not exist in or do not apply with the same force to the legislation under consideration. The appellant pointed out that the source of the power to acquire land that is vested by s 43 of the LAA is derived from the creation of the Northern Territory as a separate body politic under the Crown capable of acquiring and owning property of all kinds. The Self-Government Act was enacted pursuant to s 122 of the Constitution which places no relevant limitation on the power of acquisition. Counsel argued that there is no relevant basis upon which it could be said that the Minister's executive power under s 43 is to be construed more narrowly that the legislative power of the Northern Territory with respect to acquisition because of the clear meaning and necessary intendment of the words granting the power.
[31] Referring to the concern of the majority in Clunies-Ross that controls or safeguards against the abuse of executive power did not exist, the appellant pointed to the existence of the independent Tribunal as a safeguard against abuse and the requirement that the Minister can not ignore a recommendation of the Tribunal against compulsory acquisition of native title rights and interests unless it is in the interests of the Territory not to comply with the recommendation. Finally, the decision of the Minister is susceptible to judicial review by the Supreme Court.
[32] Even if the decision in Clunies-Ross can be distinguished as the appellant contends, the question still remains as to whether the power conferred by s 43 extends beyond the acquisition of land for a purpose related to the need for or proposed use of the land. In Clunies-v Ross the Commonwealth argued that the power contained in s 51(xxxi) of the Constitution:
…should be construed as including the power to acquire property not for a purpose related to any need for or desired use of the property but for the purpose of depriving the owner of it and thereby indirectly achieving some purpose in respect of which the Parliament has power to make laws…
The majority found it was unnecessary to express any concluded view as to the extent of the legislative power found in s 51(xxxi), but they made the following observation (200):
The question whether the grant of power in s 51(xxxi) of the Constitution should be so construed is not without difficulty and one can find in cases in this Court statements of high authority which would seem to be framed on the assumption that the legislative power conferred by par. (xxxi) should be confined to the making of laws with respect to the acquisition of property for some purpose related to a need for or proposed use or application of the property to be acquired… (citations omitted)
[33] The statements of "high authority" to which the majority in Clunies-Ross referred were remarks of Dixon CJ upon which the respondent now relies. In Andrews v Howell (1941) 65 CLR 255 at 281, his Honour made the following observation concerning s 51(xxxi):
This provision contemplated, no doubt, the acquisition of real or personal property which the Commonwealth proposed to use for purposes of the Executive Government in the course of executing laws made by the Parliament under its legislative powers. There is some difficulty in applying it in such a case as the present, where the acquisition is for the purpose of immediate disposal in the course of a plan for the more effectual sale and distribution of a marketable commodity in which the Commonwealth Executive is not interested and which it does not desire to use for any governmental purpose. Indeed, it may be possible to maintain that the provision has no application to such a case. But as I am of the opinion that it does not operate to invalidate the regulations now in question, it is unnecessary to pursue this matter.
[34] In Attorney-General of the Commonwealth v Schmidt (1961) 105 CLR 361 at 372, Dixon CJ said:
The scope of s. 51(xxxi) is limited. Prima facie it is pointed at the acquisition of property by the Commonwealth for use by it in the execution of the functions, administrative and the like, arising under its laws. It is perhaps not easy to express in a paraphrase the extent of the operation of s. 51(xxxi) and thus to define its full scope and application but it is at least clear that before the restriction involved in the words "on just terms" applies, there must be a law with respect to the acquisition of property (of a State or person) for a purpose in respect of which the Parliament has power to make laws. The expression "for any purpose" is doubtless indefinite. But it refers to the use or application of the property in or toward carrying out or furthering a purpose comprised in some other legislative power. It covers laws with respect to the acquisition of real or personal property for the intended use of any department or officer of the Executive Government of the Commonwealth in the course of administering laws made by the Parliament in the exercise of its legislative power (my emphasis).
[35] This brief review of some of the authorities demonstrates that notwithstanding the "indefinite" nature of the expression used in s 43 of the LAA, there are significant considerations and statements of authority militating against an interpretation that s 43 confers an executive power which would enable the Minister to compulsorily acquire land for a purpose unrelated to any need for or proposed use of the land and which, in the words of the majority in Clunies-Ross:
…would be surprisingly wide in that, subject only to monetary compensation, it would encompass the subjection of the citizen to the compulsory deprivation of his land, including his home, by executive fiat to achieve or advance any ulterior purpose which was a purpose in respect of which the Parliament has power to make laws…
[36] Notwithstanding the force of the considerations that favour the position for which the appellant contends, I have reached the view that the executive power conferred by s 43 of the LAA is restricted to compulsory acquisitions for a purpose related to the need for or proposed use of the land. It does not extend to a compulsory acquisition merely for the purpose of giving the land of one citizen to another for a purpose totally unrelated to a need for or proposed use of the land. To adapt the passage of the majority in Clunies-Ross to which I have referred (198), as a matter of language the power to acquire land for any purpose is prima facie limited to an acquisition of land which is needed or which it is proposed to use, apply or preserve for the advancement or achievement of a particular purpose. This view accords with the view expressed by Dixon CJ in Schmidt that the expression "for any purpose" while indefinite:
…refers to the use or application of the property in or toward carrying out or furthering a purpose comprised in some other legislative power.
[37] In my view, by use of the expression "for any purpose whatsoever" the Legislature did not intend to confer the very wide power for which the appellant contended. Rather, the Legislature intended that the need for or proposed use of the land does not have to relate to a purpose which fits a particular description. For example, subject to other provisions of the Act, the proposed use does not have to relate to a purpose that satisfies some test of "public interest". Provided the purpose is a lawful purpose in respect of which the Legislature has power to make laws, if that purpose is related or connected to the need for or proposed use of the land, the acquisition will be within the power conferred by s 43.
[38] Applying this view to the notices under consideration, the notice of proposed acquisition of Lot 109 is set out in the judgment of Mildren J. As required by the LAA, the notice identifies the manner in which the Territory proposes to deal with the land. That manner includes the granting of a lease to Warren Pty Ltd or its nominee "for the purpose of developing a cattle husbandry facility". The manner in which the Territory proposes to deal with Lot 47 includes the grant of a Crown lease to Warren Pty Ltd or its nominee for the purpose of goat breeding, hay production and market garden together with the construction of improvements ancillary to the development including a hay and machinery shed and caretaker's cottage.
[39] The notices relating to Lots 109 and 47 identified that the proposed acquisitions of those lots are for an underlying purpose related to the proposed use of the land.
[40] The notice with respect to Lots 97-100 and 114 identified the proposed use of the land in the following terms:
2. The manner in which the Territory proposes to deal with the land if it is acquired is as follows:
(a) Offer the lots for sale by public auction,
(b) Grant Crown leases (term) under the provisions of the Crown Lands Act for the purpose of commercial/tourism development. Under completion of the development the Crown leases (term) may be surrendered in exchange for freehold titles, and
(c) Grant of any easements for the purpose of sewerage, water supply, drainage, electricity supply, access, electronic communications, energy supply and general services as required by the Power and Water Authority, the Timber Creek Community Government Council and telecommunication companies etc.
[41] The material before the Court includes evidence that requests had been made for the release of land at Timber Creek for commercial and/or tourism related purposes. A memorandum from the Deputy Secretary to the Minister dated 24 January 2000 discusses the proposed acquisition of Lots 97-100 and 114 and identifies the issue as acquisition of all interests over those lots "for the purpose of commercial/tourism development". I did not understand the respondent to be contesting a finding that the ultimate purpose of acquiring these lots was to facilitate development of commercial and tourism interests. In my view such a purpose is a purpose related to the need for or proposed use of the land.
[42] In my opinion the appeal should be allowed and the cross-contentions should be dismissed. The orders of the Judge should be set aside. There should be an order dismissing the Originating Motion.

Mildren J:
[43] Timber Creek is a small town in the Northern Territory located on the Victoria Highway 285 km west of Katherine and 193 km east of the Western Australian and Northern Territory border. Although the town has existed for well over a century, it was not until June 1975 that Timber Creek was gazetted as a town under the provisions of the former Crown Lands Ordinance, and it has remained proclaimed as a town ever since.
[44] The boundaries of the town straddle Victoria Highway. In addition to a number of quite small allotments there are a number of larger allotments within the boundaries of the town one of which is Lot 109 which comprises an area of 26.1 ha. From 1981 to 1997 grazing licenses over that land were held under the Crown Lands Act by one Lloyd Fogarty, either in his own right or in the right of a company in which he has a significant interest namely Warren Pty Ltd. For ease of reference, Warren Pty Ltd and Mr Fogarty will be treated as one and the same and their respective interests will be referred to as "Fogarty". During this time, Fogarty developed this land through fencing facilities for branding, horning, spraying, pest treatment, weaning onto improved pasture and tailing. Fogarty estimated that the cost of improvements made to the land were worth $50,000. On the 25th of September 1997 Fogarty applied under the Crown Lands Act to purchase the lot. The application was favourably received by the Minister and on the 2nd of February 2000 a notice of proposed acquisition of all interests in Lot 109 including native title interests, if any, in the lot was published. On the 11th of May 2000 a native title claim was filed together with a notice of objection to the acquisition by the present respondents. On the 9th of June 2000 the National Native Title Tribunal accepted the respondent's claim for registration pursuant to s190A of the Native Title Act (1993) (Cth) (the NTA).
[45] Another lot within the town is Lot 47 which comprises an area of approximately 5.41 ha and was subject to Crown Lease term 624 issued under the provisions of the Crown Lands Act to Fogarty for grazing purposes between 1986 and 1996. During this time, Fogarty undertook extensive improved pasture measures, irrigation, fencing and landscaping on the area and used the block for goat breeding and hay making. On the 2nd of January 1999, Fogarty applied under the Crown Lands Act to purchase this lot. This received favourable consideration by the Minister and on the 1st of September 1999 a notice of proposed acquisition of all interests including native title interests in the lot was published. On the 10th of December 1999 a native title determination application was filed with the National Native Title Tribunal. On the 7th of January 2000, the application was accepted for registration pursuant to s190A of the NTA.
[46] Lots 97, 98, 99, 100 and 114 are all smaller lots within the town varying in size between 2000 sqm and 3610 sqm. Following requests received for the release of land in Timber Creek for commercial and/or tourist related purposes, the Minister, on the 2nd of February 2000, published a notice of proposed acquisition under the Lands Acquisitions Act (LAA) of all interests including native title interests in those lots. On the 11th of May 2000, a native title claim was filed with respect to those lots, which claim was accepted for registration by the National Native Title Tribunal on the 9th of June 2000. In due course, because of the objections lodged by the respondents to the proposed acquisitions the appellant applied to the Lands and Mining Tribunal (the Tribunal) established by the Lands and Mining Tribunal Act to have the objections to the acquisitions heard by the Tribunal. The Tribunal's decision was published on the 22nd of March 2002 together with its reasons.
[47] Before the Tribunal, the respondents had contended that the Tribunal lacked jurisdiction because the proposed acquisitions were invalid. The Tribunal formed the view that it had jurisdiction, proceeded to determine the objections and recommended that the Minister proceed with the compulsory acquisitions.
[48] The proceedings below commenced by way of originating motion seeking a remedy in the nature of certiorari, injunctions and declaratory relief. After the commencement of the proceedings, the appellant announced his intention to act upon the recommendations of the Tribunal, but was first restrained from effecting the acquisitions and then undertook not to do so until determination of the proceedings. The appellant's decision to act on the Tribunal's recommendations and to proceed with the proposed acquisitions became the subject of the review proceeding by amendments made to the respondent's originating motion.
[49] The notice of proposed acquisition for Lot 109 stated that
I, [the Minister] in pursuance of s 32(1) of the Lands Acquisitions Act, give notice that the Territory proposes to acquire the following land ("the land") under the provisions of that Act:
All interests including native title rights and interests (if any) in all that parcel of land within the town of Timber Creek in the Northern Territory of Australia comprising an area of 20.29 ha, more or less, being proposed Lot 109 and being, more particularly delineated on Survey Plan S99/233 lodged with the Surveyor-General, Darwin.
[50] The notice then proceeded to provide
The manner in which the Territory proposes to deal with the land if it is acquired is as follows:
(b) Grant a Crown lease (term), under the provisions of the Crown Lands Act to Warren Pty Ltd or its nominee for the purposes of developing a cattle husbandry facility. Upon completion of the development, the Crown lease (term) may be surrendered in exchange for a freehold title; and
(c) Grant of any easements for the purpose of sewerage, water supply, drainage, electricity supply, access, electronic communications, energy supply and general services as required by the Power and Water Authority, the Timber Creek Community Government Council and telecommunications companies, etc.
[51] The notices for the other lots were in broadly similar terms. In the case of Lot 47, the manner in which the Territory proposed to deal with the land (if acquired) was to make a grant of a Crown lease convertible to freehold to Warren Pty Ltd for the purposes of "goat breeding, hay production, market garden and ancillary". The manner in which the Territory proposed to deal with Lots 97-100 and 114 (if acquired) was to offer the lots for sale by public auction.
[52] The land in question is all Crown land. At all relevant times there were no interests registered or unregistered in relation to the land other than the respondents' applications which had been accepted for registration pursuant to s190A of the NTA. Before the learned primary judge, a number of contentions were ventilated for the purpose of showing that the proposed notices of acquisition were invalid. None of those contentions directly challenged the form of the notices of acquisition. Nevertheless, his Honour considered that there were difficulties with the form of the notices of acquisition and, consequently, he communicated those difficulties to the parties and heard further submissions. In the end result, his Honour found that the notices of acquisition employed by the appellant had been ineffective to acquire interests in unalienated Crown land and accordingly he held that the respondent was entitled to judgement on the originating motion.
[53] From that decision, the appellant has appealed to this Court. As his Honour did not deal with the principal arguments raised by the parties, the respondent has sought to reagitate those issues by way of notice of contention. It is common ground that it is appropriate for the Court to dispose of all issues as between the parties.
The Appeal by the Minister - the construction of the notices
[54] Counsel for the appellant submitted that the learned trial judge erred in his construction of the notices of acquisition. The learned judge said that the plain intention of each notice is to acquire the land and all interests in the land including that of the respondent and to vest the land in the Territory. Accordingly, although the notices purported to acquire the interests of the respondent, his Honour held that the notices were invalid. The purport of his Honour's decision was that if the Minister intended to acquire the native title interests in the land, the notices had to be drawn so as to compulsorily acquire those interests and not the Crown's own interest as well. His Honour did not deal with the other arguments that were presented by the respondents which would have affected the correctness of that proposition.
[55] On the true construction of the notices, the Minister only intended to acquire all interests including the native title interests in the relevant land other than the interests in the land which the Crown itself already had. As was pointed out by Aickin J in Commonwealth v Maddalozzo (1980) 29 ALR 161 at 169, it would be pointless for the Crown to acquire that which it already had. Furthermore, even if the notices were open to the construction that the Minister intended to acquire not only the respondent's interests but anyone else's interests as well as its own interests in the land, that does not necessarily mean that the notices are invalid simply because they purport to acquire that which the Crown already has. To the extent that the notices purport to acquire something which the Crown already has, the notices may be ineffective, but that does not mean that the notices are, for that reason alone, invalid.
[56] Assuming, however, that such a notice might be invalid, it is a fundamental principle of construction that where there is a choice between two interpretations of an instrument that which promotes the validity of the instrument is much to be preferred to that which does not : ut res magis valeat quam pereat : see Widgee Shire Council v Bonney (1907) 4 CLR 977 at 983; Drew, Robinson & Co v Shearer and another (1914) 18 CLR 209 at 221; The Waterside Workers' Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 at 465-466; McCawley v The King and others (1919) 26 CLR 9 at 67; Fell v Fell (1922) 31CLR 268 at 275; Foley v Padley (1983) 154 CLR 349 at 371; State of South Australia v Tanner and others (1988-89) 166 CLR 161 at 180; Airservices Australia v Canadian Airlines International Ltd and others (2001) 202 CLR 133 at 271; see also s 61 of the Interpretation Act.
[57] It follows from this that the learned trial judge fell into error in construing the notice in the manner in which he did.
[58] Counsel for the respondent, Mr Basten QC, did not seek to uphold the learned trial judge's construction of the notices. His argument was that the same conclusion as that arrived at by the trial judge could be arrived at by construing the relevant legislation. To the extent that the argument depended upon a submission that there was no power under the LAA for the Minister to acquire land which is unalienated Crown land, it is not necessary to consider that question because the notices did not purport to do so, or if they did, they ought to be read down so as be within power for the reasons already given.
[59] However, the argument has two other limbs. The first limb appears to be that the LAA does not apply in circumstances where the interest to be acquired is not the land itself. Alternatively, it was put that the legislation does not permit the Minister to acquire native title interests unless there are other interests in the land which are acquired at the same time.
Does the LAA apply where the fee simple interest is not acquired?
[60] The argument put in favour of the first of these propositions cannot be sustained. It is apparent that the LAA specifically envisages the acquisition of any interest in land and in particular of native title interests. The definition of "land" in s 4(1) of the LAA provides that
"land" means land (including the sea bed) within the limits of the Territory and includes an interest in land.
[61] S 4(1) of the LAA further provides that:
'interest', in relation to land, means
(a) a legal or equitable estate in the land; or
(b) an easement, right, power or privilege in, under, over, affecting or in connection with land and includes native title rights and interests.
[62] Further "native title" and "native title rights and interests" are defined to "have the meaning given in s 223 of the Native Title Act".
[63] S 5A(1)(a) of the LAA provides
(1) This Act applies in relation to an acquisition of an interest in land that comprises native title rights and interests -
(a) that is an act to which the consequences in s 24MD(6A) or (6B) of the Native Title Act apply…
[64] Both of those provisions refer to native title holders as well as to registered native title claimants (which applies to the first respondent).
[65] Much emphasis was placed upon the provisions of s 33 of the LAA which provides in s 33(1) as follows:
(1) A notice of proposal is to be in the approved form and contain -
(a) a description of the land proposed to be acquired;
(b) details of the manner in which it is proposed that the land, if acquired, will be dealt with;
(c) an invitation to the person on whom the notice is served to negotiate with the Minister the conditions of the acquisition of the person's interests by agreement under this Act…
[66] It is true that it is difficult to read the word "land" in s 33(1)(b) as meaning a mere interest in land unconnected with an estate in freehold. It is difficult to see how an estate or interest in land can be dealt with once it has been acquired as the estate and/or interest will have gone. The word "land" in the sense in which it is used in s 33(1)(b) presumably means the physical land usque ad coelum et ad inferos. It is difficult to see how a notice of proposal under s 33(1) or a notice of proposed acquisition under s 33(3)(b) could give details of the manner in which it is proposed the land, if acquired, will be dealt with if "land" means only an interest in land and if the purpose of the acquisition of the interest is to extinguish it so that the land may be used for some other purpose. Obviously these provisions give no difficulty if the estate which is acquired is an estate in fee simple. One possible answer is to read s 33(1)(b) and s 33(3)(b) as meaning "details of the manner in which it is proposed that the land, if the land or an interest in the land is acquired, will be dealt with". There is no difficulty in so reading those provisions in that way as all that is being done is to give the word "land" an ambulatory meaning in order to correct an obvious drafting oversight: see The Queen v Young (1999) 46 NSWLR 681 and the discussion in Pearce and Geddes, Statutory Interpretation in Australia, 5th Edition, paras [2.29] to [2.30].
[67] A similar problem relates to the wording of s 48 which provides:
(1) The Minister may, at any time while no person (other than the Crown), has an estate or interest in the land, by notice published in the Gazette, declare that any land acquired under this Act is no longer required for the purpose for which it was acquired.
(2) Land referred to in a notice under subsection (1) may be dealt with as unalienated Crown land under a law in force in the Territory.
[68] It is difficult to see what the purpose of s 48 is as there is no provision in the LAA which requires the Minister to ensure that land or an interest in land acquired under the Act is put to the purpose for which it was acquired. S 48 seems merely to be making it clear that if there were to be a change of purpose, the land may be dealt with as unalienated Crown land nevertheless. A similar approach is open with respect to s 48 as is open with respect to s 33(1)(b) and s 33(3)(b).
[69] If the contention of the respondent is correct, the Crown could never compulsorily acquire, under the LAA, an interest unless at the same time it also acquired the fee simple. This would result in real inconvenience to the Northern Territory if, for example, the Northern Territory wished to acquire an easement granted pursuant to division 4 of part 3 of the Crown Lands Act over land in which the Crown already holds all other estates and interests.
[70] On the other hand, it is clear from s 28A(4) that it is the intention of the Parliament that the Minister may compulsorily acquire an interest in prescribed land (as defined) without acquiring the fee simple. Indeed, in relation to an acquisition to which s 28A applies, the Minister must acquire only the relevant interest and cannot at the same time acquire the fee simple. The provisions of s 33 and s 48 apply equally to an acquisition to which s 28A refers.
[71] Therefore, the better view is that the intention of Parliament is that the Minister does have the power to acquire an interest in land under the LAA without at the same time acquiring the fee simple title to the land.
Does the Native Title Act preclude an acquisition where the Minister acquires only the native title interests?
[72] The respondent's second argument rests upon the interpretation to be given to s 24MD(2) of the NTA. That subsection provides
(2) If:
(a) The act is the compulsory acquisition of the whole or part of any native title rights and interests under the law of the Commonwealth, a State or a Territory that permits both:
(i) the compulsory acquisition by the Commonwealth, the State or the Territory of native title rights and interests; and
(ii) the compulsory acquisition by the Commonwealth, the State or the Territory of non-native title rights and interests in relation to land or waters; and
(b) the whole, or the equivalent part, of all non-native title rights and interests, in relation to the land or waters to which the native title rights and interests that are compulsorily acquired relate, is also acquired (either compulsorily or by surrender, cancellation or resumption or otherwise) in connection with a compulsory acquisition of the native title rights and interests; and
(ba) the practices and procedures adopted in acquiring the native title rights and interests are not such as to cause the native title holders any greater disadvantage than is caused to the holders of non-native title rights and interests when their rights and interests are acquired;
then:
(c) the compulsory acquisition extinguishes the whole or the part of the native title rights and interests; and
(d) if compensation on just terms is provided under a law of the Commonwealth, a State or a Territory to the native title holders for the compulsory acquisition, and they request that the whole or part of any such compensation should be in a form other than money, the person providing the compensation must:
(i) consider the request; and
(ii) negotiate in good faith in relation to the request…
[73] The respondent's argument is that where there are no non-native title rights in the land any notice of acquisition will not have the effect of extinguishing the whole or the part of the native title rights and interests attempted to be acquired. As a consequence, it was submitted that the notices of acquisition under the LAA were ineffective because, under s 46(1) of the LAA upon publication in the Gazette of a notice of acquisition "the land" described in the notice vests in the Territory "freed and discharged from all interests, trusts, restrictions, dedications, reservations, obligations, encumbrances, contracts, licenses, charges and rates of any kind" and "any interest that a person had in the acquired land is divested, modified or affected to the extent necessary to give effect to this sub-section".
[74] If s 24MD(2)(b) applies only where there is an acquisition of all interests other than the Crown's interests in the land, and cannot apply where the only interest in the land other than the Crown's interest is a native title interest, that does not invalidate the notice of acquisition. In those circumstances the "non-extinguishment principle" would apply (see s 24MD(3) and s 238 of the NTA). The consequences of s 24MD(6A) would still apply to this situation and so the LAA would still apply (see s 5A(1)(a)). The effect of these provisions is to suppress the native title rights until such time as the acquisition or the effects of the acquisition are later wholly or partly removed or wholly or partly cease to operate.
[75] There is nothing in s 5A of the LAA, or in any other provision apart from s 46, which suggests that an acquisition to which the non-extinguishment principle applies is not contemplated by the LAA. S 46 should be read down to the extent that it in conflict with the NTA: ut res magis valeat quam pereat, and see the citations in paragraph [14] supra. This being so, the notices are valid and it is not necessary to decide whether or not, where the only interest acquired is in fact a native title interest because there are no other interests, the compulsory acquisition would extinguish the native title rights in terms of s 24MD(2) of the NTA.
Validity of the notices - improper purpose
[76] S 43(1)(b) of the LAA provides
Subject to this Act, the Minister may acquire land under this Act for any purpose whatsoever -
(b) if the pre-acquisition procedures parts IV and IVA as applicable have been complied with - by compulsory acquisition by causing a notice declaring the land to be acquired to be published in the Gazette.
[77] The submission on behalf of the respondent was the words "any purpose whatsoever" in s 43(1) should be read as limited to purposes which are purposes of the Territory or public purposes. Thus it was submitted that an acquisition of the native title interests for the purpose of issuing Crown leases to Warren Pty Ltd fell outside of the acquisition power contained in s 43 of the Act.
[78] Counsel for the respondent put forward a number of propositions in support of this argument. It is not necessary to refer to all of the ways in which the argument was put because it may be generally accepted that words of such wide import as "for any purpose whatsoever" must have some limitations, a submission ultimately acknowledged by the Solicitor-General for the Northern Territory. However, that does not mean that the respondent's argument is fully accepted. The authorities referred to or relied upon by counsel for the respondent are all distinguishable either on the ground that they deal with compulsory acquisition powers granted to a subordinate body, such as a local government body, or because the statutory power was conferred with express words of limitation. The Northern Territory is not the equivalent of a local government body, and the words of s 43(1)(b) are not subject to any express limitation. The argument that the extent of the limitation of the power is able to be discerned by the fact that the power of acquisition granted by s 50(1) of the Northern Territory (Self-Government) Act 1978 (Cth) is qualified must also be rejected. The power so conferred is a power limited by the requirement for "just terms". This does not imply, as was suggested, a requirement that the power of acquisition be limited to purposes which are governmental in nature; nor does it place a requirement upon the Minister to balance the interests of those whose interests are to be acquired against the interests of the Territory. Whilst the LAA does require the Tribunal, in circumstances where the interest to be acquired is a native title right or interest, to have regard to the public interest in the acquisition as one of the factors to be considered (LAA s 38AA(2)(d)), the Minister may override the Tribunal's recommendation not to acquire native title rights and interests if it is in the interests of the Territory not to comply with the recommendation : see s 45 (2)(c). But the Tribunal might recommend such an acquisition go ahead even if there is no public interest in acquiring it. This points to a wider power of acquisition than one constrained in the manner submitted by the respondent.
[79] In Clunies-Ross v The Commonwealth (1984) 155 CLR 193 at 201 the High Court said in a unanimous joint judgement of six Justices:
An executive power to deprive a citizen of his property by compulsory acquisition should be construed as being confined within the scope of what is granted by the clear meaning or necessary intendment of the words by which is it conferred…
[80] The nature and the extent of the power in question and the identification of the purposes for which the power may be used turns on the construction of the LAA as a whole; and the extent of the power may be delineated by specific express provisions or by the implication to be drawn from the subject matter dealt with by the statute: Padfield v Minister of Agriculture [1968] AC 997 at 1033; Murphyores Inc v The Commonwealth (1976) 136 CLR 1 at 12. Even a power expressed in extremely wide terms will be limited by the objects for which the power may be used: see Julius v Bishop of Oxford (1880) 5 App.Cas. 214. By way of example in Clunies-Ross v The Commonwealth supra, the power to acquire property for a public purpose conferred by the Lands Acquisition Act (1955) (Cth) did not extend to acquiring the home of the Clunies-Ross family for the purposes of bringing about the exclusion of the family from the Cocos (Keeling) Islands Territory in order to prevent the Clunies-Ross family from voting and seeking to influence the voting of other persons in any expression of an Act of Self-Determination by the inhabitants of the Islands pursuant to the policies of the General Assembly of the United Nations. It was conceded in the present case that the Minister would not be able to acquire land or an interest in land for the purpose of making a corrupt grant to a favourite friend or near relative; nor if the proposed grant were otherwise to be made in circumstances which were unlawful.
[81] Reliance was also placed on the conclusion in Clunies-Ross v The Commonwealth, supra at 199, that the power of acquisition conferred by the Lands Acquisition Act (Cth) was confined to purposes related to "any planned use, application or preservation of the land itself or of any building thereon", but did not enable the Commonwealth to acquire land to achieve some consequential advantage which could properly be described as a public purpose. That case is distinguishable because the provisions of the Act there being construed bear little or no resemblance to the LAA.
[82] In The Queen v Toohey; ex parte Northern Land Council (1981) 151 CLR 170, Aickin J said, at pages 232-233:
There are three distinct bases upon which an exercise of administrative power or authority and delegated legislative power or authority may be attacked; they are first the existence of a corrupt purpose, second the existence of an improper purpose and third ultra vires in the narrow sense of the act being done beyond the power of the body concerned, irrespective of the motive or intention of the person or body exercising the power. It is true that in one sense the term ultra vires is capable of embracing all three conceptions. It is, however generally unhelpful, if not misleading, to use the term in that wide sense and I shall confine its use to the narrowest sense. In the examination of passages which I shall quote from cases I have found it necessary in some instances to indicate the sense in which I understand such words to have been used. I used the adjective "corrupt" to mean an act done for personal gain, including a gain for the person doing the act or his family or friends. Where some act is authorised to be done for a purpose, the doing of that act "falsely avowing a legitimate purpose to cover the actual pursuit of an object outside the scope of the power" is better classified "improper" rather than "corrupt" in the absence of endeavour to obtain personal gain, though the ultimate result of invalidity will follow on either view.
I use the term "improper purpose" to mean one for which the relevant power or authority was not conferred. It makes no difference whether or not the purpose was known to or believed or suspected to be necessary by, the person exercising the power. Generally speaking executive or administrative powers are conferred for a purpose ascertainable, with greater or less difficulty, from the terms of the instrument conferring the powers. In the case of legislative powers it is not always possible to discern a purpose, as distinct from subject matter or content. A belief that the act done has been done for an authorised purpose will be irrelevant if the purpose for which the power is in fact exercised is not such a purpose, whether the belief is as to a matter of fact or law.
[83] There is no suggestion in this case of any corrupt purpose. But the question is whether the purposes for which the lots are being acquired are improper in the sense described by Aickin J or, perhaps to put it another way, outside of the scope and purpose of the Act.
[84] The argument of the respondent is that the LAA does not contemplate an acquisition by the Crown of the interests of A in order for the Crown to confer those interests upon B free of the interests of A. It was submitted that the history of the LAA suggests that the purposes for which the power of acquisition may be exercised must be purposes "in relation to the Territory" in the sense that that phrase was understood in the definitions of the phrase "public purpose" found in the Lands Acquisition Act (1955) (Cth) and in the LAA as first enacted. Thus it was put that the phrase "any purpose whatsoever" now found in s 43(1)(b) is properly to be understood as simply meaning any purpose in relation to the Territory albeit the purpose may arise under other legislation.
[85] These arguments were principally supported by the meaning which the respondent sought to give to s 48, s 33(1)(b) and s 33(3)(b) of the LAA which have already been discussed. If a narrow view of those provisions is taken there is substance to the respondent's argument. However, for the reasons which have already been given, no narrow view of those provisions is really open. In particular, there is no reason why it would necessarily be beyond the purposes of the LAA for the Territory to acquire the interests of A in order to confer a wider interest on B. It is not necessary in this case to decide what are the precise limits of s 43(1)(b) because it is difficult to see why, in the circumstances of this case, the acquisitions could not be for what might be regarded as a legitimate Territory purpose, and there can be no doubt that such a purpose falls within the ambit of the sub-section. It is very much the business of government to promote industry in or around towns by providing land for the use of industry, whether the industry be manufacturing, tourist businesses or goat farming.
[86] Moreover, unlike the situation in Clunies-Ross v The Commonwealth, supra, where there was no mechanism to ensure that the Minister's power was not abused, the LAA does provide a mechanism for objection and review by an independent tribunal the decision of which is subject to appeal. Furthermore, the Minister's decision is subject to a statutory right of judicial review : see LAA, s 45A. In the case of the compulsory acquisition of native title rights and interests, where the Tribunal recommends those rights and interests must not be compulsorily acquired the Minister is obliged to comply with the recommendation unless certain conditions are satisfied: see s 45(1A). There is, therefore, no reason to give to the provisions of s 43(1) the narrow construction advanced by counsel for the respondent. That being so, the challenge to the proposed acquisition on that ground must fail. It is neither necessary nor desirable to further expound upon the precise limits of the power of acquisition in this case.
Racial Discrimination Act
[87] The final submission put on behalf of the respondent was that the proposed acquisitions were invalid because they discriminated against native title holders.
[88] Precisely how it was said that the actions of the Minister discriminated against native title holders is not clear. It is significant in this respect that s 24MD(6B)(a) of the NTA specifically contemplates "the compulsory acquisition of native title rights and interests for the purposes of conferring rights and interests in relation to the land or waters concerned on persons other than the Commonwealth, the State or the Territory to which the act is attributable". In those circumstances, it is difficult to see how there has been a breach of the Racial Discrimination Act 1975 (Cth). As the High Court said in the State of Western Australia v The Commonwealth (Native Title Act case) (1994-95) 183 CLR 373 at 483-484:
…the Native Title Act can be regarded either as a special measure under s 8 of the Racial Discrimination Act (372) or as a law which, though it makes racial distinctions, is not racially discriminatory so as to offend the Racial Discrimination Act or the International Convention on the Elimination of All Forms of Discrimination (373). And further, even if the Native Title Act contains provisions inconsistent with the Racial Discrimination Act, both Acts emanate from the same legislature and must be construed so as to avoid absurdity and to give to each of the provisions a scope for operations. The general provisions of the Racial Discrimination Act must yield to the specific provisions of the Native Title Act in order to allow those provisions a scope for operations. But it is only to that extent that, having regard to s 7(1), the Native Title Act could be construed as affecting the operation of the Racial Discrimination Act.
S 7(1) provides no basis for interpreting the Native Title Act as subject to the Racial Discrimination Act. The Native Title Act prescribes specific rules governing the adjustment of rights and obligations over land subject to native title and s 7(1) cannot be construed as intending to nullify those provisions.
[89] As what is in contemplation by the Minister is specifically authorised by the NTA, there is no breach of the Racial Discrimination Act.
Conclusion
[90] In conclusion, the appeal must be allowed and the orders made by the Court at the first instance must be set aside. In lieu thereof there should be an order dismissing the originating motion. The respondent should pay the appellant's costs of the appeal as well as in the court below.
Riley J:
[91] I have had the advantage of reading the reasons for judgment of Mildren J. I agree with the orders he proposes and with his reasons.

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