[Previous Article][Next Article]
JOHN FLYNN, BRYAN MASSEY, LANCE TREMLETT, JAMBANA LALARA, ANDY MAMARIKA AND
ANDREW WURRAMARA As Trustees of the GROOTE EYLANDT ABORIGINAL TRUST v PETER
MAMARIKA AND RICHARD HERBERT as Representatives of the Umbakumba Community
GERRY BLITNER, JABANI LALARA, TIMOTHY LALARA, BILLY LALARA, JONOTHAN
WURRAMARRBA as Representatives of the Angurugu Community WURUBA WURRAMARA AND
MURABUDA WURRAMARRBA as Representatives of the Bickerton Island Community AND
THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA
No. 132 of 1995
Number of pages - 14
Trusts and trustees
IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA
Trusts and trustees
DARWIN, 20 March 1996
Appearances not available
MARTIN CJ In this matter the Court is asked to determine questions arising
in the execution of a certain trust. The determinations are very important
not only for the plaintiffs, the current trustees, and any who may replace
them, but for practically the whole of the aboriginal population of Groote
Islandt and Bickerton Island which lie in the Gulf of Carpenteria, not far
from the eastern edge of the mainland of the Northern Territory. The Court
has been requested to produce, by way of reasons and directions, a document
which can be readily referred to and understood by all concerned. Bearing in
mind that the law which must be applied is mainly the common law evolved over
time in a society quite foreign to that of the aboriginals, and my lack of
instruction in concepts in aboriginal society that may have a relationship to
the relevant common law, my attempt to meet the wishes of the people, within
the constraints of judicial duty, may not be as successful as they may have
hoped. However, I have attempted to proceed by way of straight forward
statements of the law, and how it ought to be applied in these particular
circumstances. I have read all the background material supplied to me by
counsel for all parties and considered the many cases and extracts from the
standard texts put before the Court in argument by them. I consider that I am
relieved of any requirement to analyse and discuss the relevant authorities,
since there is no sufficient area of doubt to warrant it. There is as well a
degree of urgency in dealing with this case arising from difficulties within
the community pending resolution to the questions which arise, and the need to
provide determination of the questions so that the present trustees can set
about the application of trust funds which have for many years past supplied a
significant source of community sustenance and purchasing power.
2. The following facts are agreed as between the plaintiffs and the first
defendants for the purposes of these proceedings, and are not otherwise
reflected in the reasons.
(1). Until contact with Europeans the
Anindilyakwa-speaking aboriginal people have lived their
traditional lifestyle on Groote Eylandt and Bickerton Island
since time immemorial. The Anindilyakwa language is the
distinctive feature which sets this group apart from other
aboriginal people. The tribal groups or clans listed in
clause 3 of the Trust Deed dated 7 March 1989 may be
accepted for the purposes of these proceedings to contain a
complete list of the Anindilyakwa-speaking tribal groups
traditionally resident on Groote Eylandt and Bickerton
Island and who enjoy native title rights in respect thereof.
The members from time to time of these groups are referred
to in these applied facts as "the Beneficiaries". A clan is
a grouping of people of common descent and who share
spiritual affiliation to a particular area of land
(including seas) and have responsibility for the land and
sites with special significance on it.
(2). On 15 May 1920 Groote Eylandt was gazetted as a reserve
for aboriginals under the Aboriginals Ordinance 1918.
(3). The first significant contract with European people
came in 1921 when the Church Missionary Society established
a mission at Emerald River on the western side of Groote
Eylandt. In 1943 this mission was relocated to Angurugu.
(4). In 1946 Church Missionary Society of Australia and
Tasmania became the registered proprietor of Mission Lease
No. 18 which covered 200 sq miles in the north-western
portion of Groote Eylandt.
(5). In 1938 Umbakumba was established on the north-eastern
tip of Groote Eylandt nearby to the flying boat base
operated by Qantas.
(6). On 7 November 1963 the Commonwealth of Australia
gazetted the revocation of the reservation referred to in
para2 above and proclaimed the Arnhem Land Reserve (which
included Groote Eylandt) reserved for the use and benefit of
wards under s6 of the Welfare Ordinance 1953-63.
(7). In the early 1960s The Broken Hill Proprietary Company
Ltd ("BHP") was prospecting for minerals on Groote Eylandt.
An agreement dated 7 June 1963 was entered into between BHP
and Church Missionary Society Trust Ltd ("CMS") to enable
BHP to prospect and apply for mining tenements. By letter
dated 13 May 1965 from the Commonwealth Minister for
Territories to BHP the understandings reached with BHP
concerning BHP's operations at Groote Eylandt and which were
not appropriate to be included in the proposed lease
instruments were recorded. They included a number of
matters relating to the well being of the aboriginal
inhabitants. On 21 May 1965 BHP was granted Special Mineral
Leases 5, 6 and 9 which it immediately transferred to a
subsidiary company Groote Eylandt Mining Company Ltd
("GEMCO"). An agreement dated 17 November 1965 between
GEMCO and CMS provided for the use of certain parts of
Mission Lease No 18 and the terms upon such land could be
used. GEMCO was granted further Special Mineral Leases in
1975 and subsequently.
(8). By 1965 GEMCO had begun preparation for mining and
shipment of manganese from Groote Eylandt. The manganese
mine is established on the western side of Groote Eylandt in
close proximity to Angurugu. The town of Alyangula was
established to house GEMCO employees and for the development
of port facilities.
(9). Initially CMS paid royalty payments received from GEMCO
to an unincorporated association known as Groote Eylandt
Trust. On 28 August 1969 Groote Eylandt Aboriginal Trust
Inc. was incorporated to act as trustee of the Groote
Eylandt Aboriginal Trust and has since received all royalty
payments on behalf of the trust until the appointment of the
present interim trustees on 2 March 1995.
(10). On 26 January 1977 the Aboriginal Land Rights (NT) Act
commenced which listed in Schedule 1 the Arnhem Land
(Islands) including Groote Eylandt as Aboriginal Land under
that Act. The Deed of Grant for Groote Eylandt pursuant to
the Act is dated 30 May 1980.
(11). The Beneficiaries continue to live at Angurugu,
Umbakumba and on Bickerton Island and various outstations on
Groote Eylandt. From statistics available it is apparent
(a) There are approximately 1,200 Beneficiaries living on
(b) In 1992 infant mortality rates were approximately four
times greater for the Beneficiaries in comparison with other
(c) Statistics relating to education and employment
demonstrate that the Beneficiaries are at a considerable
disadvantage in comparison with other Australians as do
those relating to income.
(d) The number of Beneficiaries per dwelling in Angurugu was
8.9 compared with less than 3 for other Australians living
elsewhere. The houses are not owned by the aboriginal
occupiers and there is no government assistance for repairs,
maintenance, acquisition of household white goods,
appliances or furniture.
(e) The disadvantage suffered by the Beneficiaries is
reflected in the crime and imprisonment rate.
(12). The trustees and the beneficiaries accept that when
The Church Missionary Society of Australia, The Church
Missionary Society of Australia and Tasmania, the members
and office bearers of those organisations and Church
Missionary Society Trust Ltd obtained rights under the
Mining Ordinance (including any Permit to Enter or Authority
to Prospect referred to in the Trust Deed or the agreements
with BHP), negotiated with BHP and established the Trust,
those organisations, entities and individuals at all times
did so for the purpose of assisting the people of Groote
Eylandt and Bickerton Island (who were then wards of the
State) and not for obtaining any benefits for themselves.
THE TRUST DEED
3. Pursuant to a Deed having affect from 25 May 1956, Church Missionary
Society Trust Limited ("the Settlor") established a trust fund for what were
called "Royalty" payments received and to be received by it, and appointed
Groote Eylandt Aboriginal Trust Incorporated ("the Trustee") to administer the
fund. The fund has been supplemented by further funds in the intervening
years and the Trustee has accepted the same as additions to the trust fund.
4. Recently, the Trustee was removed and the plaintiffs were appointed as
trustees of the trust fund. It is anticipated that the Trustee may be
restored to the position as trustee of the fund.
5. The terms of the Deed oblige the trustee (I use that term to cover
whosoever fills that role whether one or more than one), to hold and apply the
trust fund, including the additional funds accepted as additions to the trust
- for such charitable purposes (in the strict legal sense)
- as may be served by the provision of money, property or
- for the benefit, welfare and advancement
- for all aboriginal persons who are permanently resident on
Groote Eylandt or Bickerton Island
- and who are members of any of twelve clans identified by
name in the Deed (para4).
6. Without limiting those purposes, the purposes of the trust include the use
of the trust fund and all other payments and donations for the:
- comfort, and
- general advancement in life of those aboriginal persons
in such manner and to such extent and upon such terms and
conditions as from time to time may seem expedient to the
7. There are a variety of powers of investment of the funds of the trust
conferred by the Deed, including, by way of unsecured loans to a person who is
one of the aboriginal persons described (para5(vi)). That power is limited by
a requirement that not less than half of all Royalty payments be invested in
other forms of prescribed investment.
THE DIRECTIONS SOUGHT
8. The plaintiffs seek directions pursuant to r54.02 of the Supreme Court
Rules as to:
"1. Whether the Trustees of the Groote Eylandt Aboriginal
Trust ("GEAT") are entitled to make distributions or grants
of money to Clan groups or family groups:
(a) without the imposition of conditions; and/or
(b) supervision by the Trustees as to the expenditure of the
2. If the Trustees are required to impose conditions upon,
and/or supervise distributions or grants, what:
(a) types of conditions are required to be imposed; and
(b) level of supervision is required.
3. Whether, and under what conditions, the Trustees of GEAT
are entitled to make loans to the objects of the Trust.
4. Which, if any, of the following expenditures can be
lawfully classified as being of a charitable nature for the
purposes of the Groote Eylandt Aboriginal Trust:
(a) grants for medical purposes;
(b) grants for funeral expenses;
(c) grants to the churches;
(d) grants for the aged and handicapped;
(e) grants for educational purposes;
(f) grants for the payment of electricity;
(g) grants for sport and recreational purposes;
(h) grants for local festivals;
(i) unconditional clan grants.
5. What are the principles to be applied by the Trustees in
the allocation of Trust funds between the various charitable
purposes available pursuant to Clause 4 of the Trust Deed."
9. These directions are sought bearing in mind an assessment made by the
plaintiffs as to the nature of certain payments made by the Trustee of the
kind referred to and the manner of payment of them. The Trustee is not a
party to these proceedings, and whether the payments for the purposes
suggested were made, and whether in the manner suggested, has not been the
subject of any determination. However, the Court is satisfied that the
trustees are genuinely desirous of obtaining guidance as to those matters for
their own purposes and because questions of a like nature have arisen amongst
the aboriginal persons referred to in the Trust Deed.
CONSTRUCTION OF THE TRUST DEED
10. Most of the cases to which the Court was referred deal with the question
of whether a particular bequest or settlement created a charitable trust.
Here there can be no doubt about that. What is in question is the purposes
for which the trust fund may be applied so as not to breach the duty of the
trustee to apply them for charitable purposes.
11. The trust is a charitable trust. The express words at para4 of the Deed
make it so. What are charitable purposes are to be decided in the strict legal
sense, as opposed to popular notions of what may be a charity or of a
charitable nature. Guidance as to what may properly be regarded as charitable
purposes may be gleaned from the preamble to the famous 1601 Statute of Queen
Elizabeth I and the indications contained therein. Reported cases may afford
a guide by way of analogy. For the most part it is a matter of judgment. As
a great many of the purposes referred to in the preamble of the Statute are
not relevant in this case, I will not trouble to set them out in full.
12. In current usage, a charitable trust, in the strict legal sense, is one
The relief of poverty. This is not confined to relief of
destitution by providing the necessities of life. It
relates as well to the relieving of distress caused by lack
of money, that is, of those who would otherwise go short or
without. Regard should be had to an acceptable minimum
standard of living that is appropriate to the community.
Gifts of cash to those in poverty to relieve need and
distress fall within the purpose, unless it is shown that it
does not have that affect.
Advancement of education. This is commonly regarded as the
process by which persons, usually children and young adults,
develop or have developed their intellectual, emotional,
spiritual and physical powers and so become full
participating and productive members of the community.
Advancement of religion. This includes the maintenance
and spread of religious doctrine, the provision of
facilities for worship and the support of persons who
conduct worship or propagate religious teachings. A
gift to a church is prima facie charitable, but must be
exclusively for a charitable purpose and not include any
Other purposes beneficial to the community and not falling
into any of those particular categories. These
may relevantly include the following:
- Relief of the disabled through whatever cause and
action directed to the cure of alcoholism and drug addicts.
- Relief of the aged involving the application of funds for
the relief of disabilities associated with the aged, whether
in poverty or not.
- Advancement of aboriginal culture involving the
preservation, advancement and maintenance of traditional
aboriginal culture (including spiritual beliefs) and way of
life of the community. It may be that this category is
subsumed in or analogous to some other or others of the
recognised categories, but in this case it is necessary to
make it plain that having taken into account all the
information before me, it assumes a distinct charitable
purpose on its own account.
13. Charitable trusts exist for the benefit of the public or a section of the
public as understood in accordance with the law. The section of the public
defined in the Trust Deed, being the aboriginal persons referred to, is a
section of the public for these purposes. (That section of the public is
referred to as "the community"). The reference in para4 to the purposes of
the trust as including the use of the trust fund for the education, benefit,
welfare, comfort and general advancement in life of the community, is subject
to the requirement that the trust funds be applied for charitable purposes.
The funds are only to be used in such a way as will benefit the community as a
whole. Use of the trust funds for the benefit of a particular aboriginal
person or persons (falling within the description contained within the Trust
Deed), which is not beneficial to the community, will be in breach of the
terms of the trust. Those particular enumerated purposes do not extend or
override the primary and only purposes of the trust, that is, charitable
purposes; they are examples of the way in which the trust funds might be used,
provided always that every such use of those funds falls within what is a
charitable purpose in the strict legal sense.
DUTIES OF A TRUSTEE
14. The principle duties of a trustee in this case are:
1. To acquaint himself with the terms of the trust deed.
2. To execute the trust in accordance with its terms and the
general law so as to benefit the community. In the course
of doing so it is permissible that members of the community
share in the benefits through effect being given to a
purpose to which the trust is directed.