FEDERAL COURT OF AUSTRALIA

Northern Territory of Australia v Honourable Justice Olney [2002] FCAFC 280

ABORIGINES – land rights – traditional land claim – recommendation for grant – intertidal zones – riverbeds and river banks – no adjacent land available for claim or occupied by traditional land owners – general principles to be regarded in making recommendation – desirability of Aboriginals acquiring secure occupancy of living places – whether applicable to land claimed where no actual or desired occupancy – principles inapplicable – no error of law – application dismissed.

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) s 50

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5

Judiciary Act 1903 (Cth) s 39B(1), (1A)

R v Toohey; Ex parte Meneling Station Pty Ltd  (1982) 158 CLR 327

Risk v Northern Territory (2000) 105 FCR 109

Risk v Northern Territory  (2002) 188 ALR 376

THE COURT ORDERS THAT:

In each of the matters D5, D6 and D13 of 2002:

1.                  The application be dismissed.

2.                  The applicant pay the costs of the application of the third respondents.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

Introduction

1                     On 15 March, 3 April and 20 June 2002, the Aboriginal Land Commissioner, in the exercise of his functions under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the “Act”) recommended for grant land in three coastal regions on the Northern Territory.  The land the subject of the recommendations included portions of the coastline between high water and low water marks (the intertidal zone) and the beds and banks of, and islands in, certain rivers.  The intertidal zone, river bed and riparian lands which were the subject of the recommended grants were not adjacent to any other land which had been granted or claimed or which was claimable under the Act. 

2                     The Northern Territory has sought judicial review of each of the recommendations.  It has invoked the jurisdiction of this Court under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B(1) and (1A) of the Judiciary Act 1903 (Cth).  The substance of the Northern Territory’s complaint is that the Commissioner’s recommendation related to land that was not intended for occupancy by its traditional owners and was not contiguous to any land under which such occupancy had been or could be granted under the Act.  It was contended that in so doing, and in his reasons for the recommendations set out in his report in each case, the Commissioner failed to have regard to principles which he was required to consider under s 50(4) of the Act about the desirability of providing secure occupancy for traditional owners.  The Northern Territory Seafood Council, which had represented the interests of commercial fishers in the Commissioner’s inquiries into the claims that gave rise to two of the applications, and was joined by consent as a respondent to the applications, generally supported the applicant’s submissions.  The Commissioner being a Judge of this Court albeit acting in an administrative capacity under the Act, the applications for review are to be determined by a Full Court exercising original jurisdiction:  Federal Court of Australia Act 1976 (Cth), s 20(2).  The three applications for review were heard together.  They each raised the same point, which turns upon the construction and purpose of s 50(4) of the Act.

Statutory Framework

3                     The history of events which led to the enactment of the Act and its general scheme are set out in R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 (“Meneling”) at 355 (Brennan J) and, more recently, in the judgment of the Full Court in Risk v Northern Territory [2000] FCA 1779; 105 FCR 109 at [16] – [22] and the judgment of the High Court on appeal in that case – Risk v Northern Territory [2002] HCA 23; 188 ALR 376.

4                     As appears from its long title, the Act provides “… for the granting of traditional Aboriginal Land in the Northern Territory for the benefit of Aboriginals, and for other purposes.”  It gives effect to that purpose by setting up a mechanism for the creation of bodies corporate known as Aboriginal Land Trusts (s 4(3)).  The Trusts are established:

“… to hold title to land in the Northern Territory for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of the land concerned, whether or not the traditional entitlement is qualified as to place, time, circumstance, purpose or permission, and shall so establish Land Trusts to hold the Crown land described in Schedule 1.” (s 4(1))

5                     The Act creates the office of Aboriginal Land Commissioners (s 49).  The functions of a Commissioner are set out in s 50, which provides relevantly as follows:

“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;

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2.         A Commissioner may, with the approval of the Minister, perform any function that may be conferred on him by a law of the Northern Territory. 

2A.      A Commissioner shall not perform a function under paragraph (1)(a) in respect of an application made after the expiration of 10 years after the commencement of this subsection.

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3.                 In making a report in connexion with a traditional land claim a Commissioner shall have regard to the strength or otherwise of the traditional attachment by the claimants to the land claimed, and shall comment on each of the following matters:

(a)        the number of Aboriginals with traditional attachments to the land claimed who would be advantaged, and the nature and extent of the advantage that would accrue to those Aboriginals, if the claim were acceded to either in whole or in part;

(b)               the detriment to persons or communities including other Aboriginal groups that  might result if the claim were acceded to either in whole or in part;

(c)               the effect which acceding to the claim either in whole or in part would have on the existing or proposed patterns of land usage in the region; and

(d)                where the claim relates to alienated Crown land – the cost of acquiring the interests of persons (other than the Crown) in the land concerned.

(4)       In carrying out his functions a Commissioner shall have regard to the following principles:

(a)               Aboriginals who by choice are living at a place on the traditional country of the tribe or linguistic group to which they belong but do not have a right or entitlement to live at that place ought, where practicable, to be able to acquire secure occupancy of that place;

(b)               Aboriginals who are not living at a place on the traditional country of the tribe or linguistic group to which they belong but desire to live at such a place ought, where practicable, to be able to acquire secure occupancy of such a place.”

6                     Where a Commissioner makes a recommendation for a grant under s 50(1)(a) then s 11 provides, inter alia, for the Minister to establish a Land Trust and recommend to the Governor-General that the grant of an estate in fee simple in that land be made to that Land Trust.  Those steps are conditional upon the Minister being satisfied either that the land or part thereof should be granted to a single Land Trust for the benefit of relevant Aboriginals or that different parts of the land should be granted to different Land Trusts (s 11(1)(b)).

7                     Definitions relevant to s 50 are found in s 3 of the Act, and include the following:

“Aboriginal tradition means the body of traditions, observances, customs and beliefs of Aboriginals or of a community or group of Aboriginals, and includes those traditions, observances, customs and beliefs as applied in relation to particular persons, sites, areas of land, things or relationships.”

“traditional Aboriginal owners, in relation to land, means a local descent group of Aboriginals who:

(a)       have common spiritual affiliations to a site on the land, being affiliations that place the group under a primary spiritual responsibility for that site and for the land; and

(b)               are entitled by Aboriginal tradition to forage as of right over that land.”

“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.”

The Reports and Recommendations – McArthur River D5 of 2002

8                     The first recommendation that is the subject of challenge involved land the subject of the McArthur River Region Land Claim (Claim No 184) and part of the Manangoora Region Land Claim (Claim No 185).

9                     The two areas claimed in the McArthur River Land Claim that were the subject of the Commissioner’s report and recommendation were described in the report thus:

“(i)      Intertidal Zone in the Bing Bong Creek region

            All that land in the Northern Territory of Australia between the high water mark and the low water mark from the northern-most point of the western boundary of Northern Territory Portion (NTP) 4319, otherwise known as McArthur River Pastoral Lease to where the eastern bank of the McArthur River meets the sea coast.

(ii)       Beds and Banks of the McArthur River

            All the land in the Northern Territory of Australia being the beds and banks of the McArthur River from the mouth of the said river to where the said river meets the northern-most point of the eastern boundary of NTP 2087, otherwise known as Narwinbi Aboriginal land.”

10                  The only portion of the land claimed in the Manangoora application that was the subject of the Report was described as:

“(i)      Intertidal Zone in the Manangoora region

            All that land in the Northern Territory of Australia between the high water mark and the low water mark commencing where the eastern bank of the McArthur River meets the seacoast to where the eastern bank of the Robinson River meets the seacoast.”

11                  The recommendation of the Commissioner was set out in par 81 of the Report and made reference to a summary of findings in par 80.  It is convenient to set out both paragraphs:

“Summary of Findings

80.       Having regard to the evidence and other material produced in this inquiry I find that:

            a)         the claims made in the McArthur River claim and the Manangoora claim to the area of land described in the respective applications as the intertidal zone extend from the mean high water mark along the coast of the mainland of Australia to the mean low water mark;

            b)         such part of the land claimed in the McArthur River claim as is within the boundaries of PPL 1051 is not land which may be the subject of a traditional land claim made pursuant to s 50(1)(a) of the Land Rights Act;

            c)         the claim made in the McArthur River claim to the bed and banks of portion of the McArthur River extends from the top of the bank on one side of the river to the top of the bank on the opposite side;

            d)         with the exception of land which is within the boundaries of PPL 1051, the land identified as the claim area for the purpose of this inquiry is unalienated Crown land;

            e)         there are Aboriginals who are the traditional Aboriginal owners of the whole of the unalienated Crown land comprised within the claim area;

            f)         the Aboriginals named in Appendix 2 are traditional Aboriginal owners of the land referred to in the preceding subparagraph.”

Recommendation

81.       Having regard to the facts set out in the preceding paragraph, to the strength of the traditional attachment of the claimants to the claim area and to the principles contained in s 50(4) I recommend to the Minister that the following land namely:

                         ALL THAT land between the mean high water mark and the mean low water mark along the coast of the mainland of Australia extending from the northern-most point of the western boundary of Northern Territory Portion 4319 to the eastern bank of the Robinson River but excluding any land which is the subject of Perpetual Pastoral Lease 1051 TOGETHER WITH the bed and banks of the McArthur River being the land situated between the top of the bank on one side of the river and the top of the bank on the opposite side extending upstream from the mouth of the river to the eastern boundary of Northern Territory Portion 2087 be granted to a Land Trust for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of that land, whether or not the traditional entitlement is qualified as to place, time, circumstance, purpose or permission.” 

The Report and Recommendation – Maria Island and Limmen Bight River (D6 of 2002)

12                  The second recommendation which is the subject of challenge concerned intertidal and riverbed and riparian land in two claims.  The first was the Maria Island and Limmen Bight River Land Claim (Claim No 71). The second was the Maria Island Region Land Claim (Claim No 198). 

13                  The recommendation made by the Commissioner is set out at par 64 of his report and is in the following terms:

“Having regard to:

            a)         my finding that the Aboriginals named in Appendix 5 are traditional Aboriginal owners of the claimed area;

            b)         the strength of the traditional attachment of the claimants to the claim area; and

            c)         the principles expressed in s 50(4) of the Land Rights Act;

            I recommend to the Minister that the following areas of land namely:

            i)          the land lying between the mean high water mark and the mean low water mark surrounding Maria Island in the Gulf of Carpentaria;

            ii)         the land lying between the mean high water mark and the mean low water mark of the coast of the Northern Territory adjacent to Northern Territory Portion 1334 between the mouth of the Limmen Bight River and the mouth of the watercourse known as Wurlbulinji (as identified in exhibit ALC 3);

            iii)        the bed and right bank of, and the islands in, the middle channel of the Limmen Bight River adjacent to the southern boundary of Northern Territory Portion 2099 above the mean low water mark and the two unnamed islands in the Limmen Bight River which are expressly excluded from NTP 2099 as shown on Compiled Plan 4524; and

            iv)        the bed and banks of, and islands in, the Limmen Bight River between the  junction of the Limmen Bight and Cox Rivers and the western boundary of Northern Territory Portion 2099 excluding any land which is part of Northern Territory Portion 2099 as shown on Compiled Plan 4524 and land which is part of NTP 3476 as shown on Survey Plan S 88/156

            be granted to a Land Trust in accordance with sections 11 and 12 of the Land Rights Act 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.

65.        In view of the close relationship between the claimant groups and the traditional owners of the land held by the Marra Aboriginal Land Trust, I recommend that consideration be given to vesting the land recommended for grant in that Land Trust.”

The Report and Recommendations – Lorella and Maria Island Region Land Claims (D13 of 2002)

14                  The third recommendation which is the subject of challenge related to the Lorella Region Land Claim (Claim No 199) and the Maria Island Region Land Claim (Claim No 198).  The recommendation in relation to these claims was set out at par 65 of the Commissioner’s report in the following terms:

“Having regard to

            (a)        my finding that the Aboriginals named in Appendix 3 are traditional Aboriginal owners of the claimed land;

            (b)        the traditional attachment of the claimants to the claimed land, which I find to be strong; and

            (c)        the principles expressed in s 50(4) of the Land Rights Act, which I find to have no relevant application in the facts of this claim;

I recommend to the Minister that the following areas of land namely:

            i)          the land lying between the mean high water mark and the mean low water mark of the coast of the Northern Territory adjacent to Northern Territory Portions 1333 and 2432;

            ii)         the land lying between the top of the left bank and the top of the right bank of Bing Bong Creek upstream from the mouth of the creek to the point where the creek ceases to be adjacent to the boundaries of Northern Territory Portions 2432 and 4319;

            iii)        the land lying between the mean high water mark and the mean low water mark of the coast of the Northern Territory adjacent to Northern Territory Portion 1334 from the point where the watercourse known as Wurlbulinji crosses the coast (the co-ordinates of which are 598323 (easting) and 8315075 (northing) using GDA (zone 53)) to the boundary between Northern Territory Portion 1334 and Northern Territory Portion 1333; and

            iv)        the land lying between the top of the left bank and the top of the right bank of the Cox River upstream from the junction of the Cox and Limmen Bight Rivers to the point where the Cox River meets the boundary between Northern Territory Portion 819 and Northern Territory Portion 1334;

            be granted to a Land Trust in accordance with sections 11 and 12 of the Land Rights Act for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of that land, whether or not the traditional entitlement is qualified as to place, time, circumstance, purpose or permission.” 

The Commissioner’s Approach to Section 50(4) – The McArthur River and Manangoora Region Land Claims (D5 of 2002)

15                  In his report on the McArthur River Region and Manangoora Region Land Claims, the Commissioner referred at the outset to s 50(4) as being “of particular significance”.  He acknowledged the unique character of the inquiry in the history of the Act as the first inquiry into a claim made to parts of the intertidal zone and to the bed and banks of a river in circumstances where no other adjacent land was either claimed or was already Aboriginal Land held under the Act.  He said:

“As it is not suggested that any part of the land claimed is either required or suitable as a place to live (in the sense apparently intended by s 50(4)) the question arises as to whether the principles to which the Commissioner is required by s 50(4) to have regard can or should be applied in exercising the function to make recommendations to the Minister.”

16                  The intertidal zones and the riverbeds and banks the subject of the McArthur River Region and Manangoora Region Land Claims are bounded by land held under pastoral leases and Crown leases held by non-indigenous interests, a Crown lease held by an incorporated Aboriginal Association known as Mowundurru Association Inc and, at the western limit of the claim in respect of the McArthur River banks and riverbed, by the Narwinbi Aboriginal Land Trust, which incorporates Borroloola.

17                  The Commissioner found that the evidence on behalf of the claimants of their traditional spiritual affiliation to, and responsibility for, sites and the land was both cogent and credible (par 62).  He addressed specifically the requirement that a local descent group have an entitlement by Aboriginal tradition to forage as of right over the land and accepted the application of that term to the obtaining of fish and other aquatic creatures for food (par 65).  He found at par 65:

“There is abundant evidence that the claimants have traditionally relied upon fish caught both in the McArthur River and at sea as a major part of their diet.  The right to hunt and gather the resources of the river and sea is asserted, and although this is not necessarily an exclusive right, it is clearly a right enjoyed by Aboriginal tradition.  Although the evidence did not specifically identify the intertidal zone as a discrete area from which fish are caught, the fact is that the claimants engage extensively in fishing in the river and seas in the region.  The right to fish satisfies the foraging element of the definition of traditional Aboriginal owners.”

18                  In finding the traditional attachment of many of the claimants to the claim area to be “demonstrably strong”, his Honour observed that although the area claimed was only relatively small it was part of a much larger area made up of numerous traditional countries from which the indigenous inhabitants and their forebears had, for the most part, been excluded since the commencement of European settlement.  He said at par 74:

“Nevertheless, many of the current generations continue to reside in close proximity to the claim area, particularly at Borroloola and Kangaroo Island, and continue to resort to the waters of the McArthur River and the sea (including the intertidal zone) for both sustenance and recreation.”

19                  In addressing the operation of s 50(4), the Commissioner observed that it provided no guidance as to how the exercise of his functions was to be affected by the application of the principles set out in that subsection.  He accepted that they were appropriate in legislation designed to remedy the dispossession of indigenous people from their traditional land.  He said at par 75:

“Presumably, in referring to living on land, the subsection contemplates the establishment of a more or less fixed place of residence.  But traditional Aboriginal ownership involves more than simply living on the land.  The definition of traditional Aboriginal owners identifies the connection between the owners and the land as being spiritual in nature.  There is nothing to suggest that residence on the land is either desirable or necessary.  Whatever role s 50(4) has in the scheme of the Act it should not be applied so as to inhibit the Commissioner’s function to recommend the granting of land where it has been found that there are traditional Aboriginal owners of that land, particularly if a strong spiritual attachment to the land has been demonstrated.”  

20                  The Commissioner then referred to the legislative history of the Actand suggested that s 50(4) was a remnant from earlier proposals that focussed on satisfying the need for land rather than the mere recognition of traditional ownership (par 76).  Whether or not that is historically true, s 50(4) must be given effect as part of the existing Act and without derogation from its operation on the basis that it is in some sense historically vestigial.  In the end, however, the relevant question for present purposes, regardless of the reasoning by which he reached his conclusion, is whether his Honour erred in the application of s 50(4).

21                  The critical passage in this respect appears in par 79 of the report in the following terms:

“There is no suggestion that any of the claimants wish to live on any part of the claim area, nor indeed is there any suggestion that the granting of the claim area, or any part of it, would enhance the claimants’ opportunity to live on any other part of their traditional country.  Apart from the leasehold land on Kangaroo Island, all of the land immediately adjacent to the claim area is presently beyond the reach of the traditional owners in so far as it may provide a place to live but to say that does not diminish the spiritual links between the traditional owners and their land nor relieve them from their responsibility to protect their sites and the land.  As I am bound to do, I have had regard to the principles expressed in s 50(4) of the Land Rights Act.  I have concluded that, in the context of the present claim, these principles have no bearing upon the exercise of any of my functions in relation to this inquiry.”

The Commissioner’s Approach to Section 50(4) – The Maria Island and Limmen Bight River and the Maria Island Region Land Claims (D6 of 2002)

22                  The Commissioner was satisfied in respect of these claims that the claimants had maintained over a long period a traditional attachment to all parts of their traditional country.  The fact that some parts may not have been visited as much as others, or were lacking in an abundance of sacred or significant sites did not justify treating them differently from the whole country.  It could not be said that the claimants had in any way abandoned any part of the claim area.  Their attachment to different parts of it varied according to the nature of the land and its location.  The claimed entitlement to forage as of right over the land the subject of the claim was not in dispute.  A number of witnesses gave evidence of the exercise of the claimed right by hunting, fishing and gathering the resources of the land and waters within and in close proximity to the claim area (par 54).  In relation to s 50(4) the Commissioner said, at par 63:

“In the McArthur River report I discussed the legislative history of this subsection and its function in the scheme of the Act.  The McArthur River claim was also a claim to an area of the intertidal zone and to the bed and banks of a river.  In that case, as in this, there was no suggestion that the claimed land was either sought as, or suitable for, a place to live.  At paragraph 78 of the McArthur River report I expressed the view that there seems to be little or no role for the application of the principles contained in s 50(4) in the context of the exercise of the Commissioner’s functions under s 50(1)(a).  I adhere to that view for the reasons explained in the McArthur River report.  As I am bound to do, I have had regard to the principles expressed in s 50(4) of the Land Rights Act.  I have concluded that, in the context of the present claim, they have no bearing upon the exercise of any of my functions in relation to this inquiry.”  

The Commissioner’s Approach to Section 50(4) – The Lorella and Maria Island Region Land Claims (D13 of 2002)

23                  In this case, as in the others, the Commissioner found that in respect of the relevant parts of the claimed land the claimant groups satisfied all of the elements of the statutory definition of traditional Aboriginal owners.  Traditional ownership of the whole of the claimed land was established.  In addressing the strength of the traditional attachment, the Commissioner said, at par 60:

“In the present inquiry it is manifest that each of the claimant groups has over an extended period pursued available remedies offered by the legal system to assert its traditional role in relation to the land in the general region under consideration.  The claimants have continued, despite their dispossession from the land, to carry on ceremonial activities associated with the land and the sites on and adjacent to it and have maintained many aspects of their traditional life and customs associated with the land.  The fact that the areas now under claim are relatively small in area and form only a minor part of the traditional countries of the claimants does not detract from the perception that overall the claimants have demonstrated a strong traditional attachment to their countries, including the claimed land.” 

24                  In considering s 50(4), his Honour noted that the facts in the claim before him, as in both the McArthur River and the Maria Island claims indicated that none of the claimed land was immediately adjacent to existing Aboriginal land and that none of the claimants or any other Aboriginals either lived on the claimed land or had indicated a desire to do so.  He found it was “…patent that no part of the claimed land is suitable as a place to live” (par 62). 

25                  The Commissioner referred to his earlier discussion in the McArthur River report of the history of s 50(4).  He then turned to consider s 50(4) in its application to the claim before him and said, at par 64:

“Subsection 50(4) addresses two factual situations.  First, it refers to the case where Aboriginals are living on their own traditional country without any legal right or entitlement to do so; and second, it refers to the case where Aboriginals are not living on their traditional country but desire to do so.  Neither of these two circumstances is applicable to the present case.  If the statute was intended to be construed on the basis that a recommendation for a grant of title should only be made if one or other of these circumstances is established it is reasonable to think that it would have expressed that intention in positive terms.  It is appropriate that the Land Rights Act be construed beneficially to achieve the object expressed in the long title namely, to provide for “the granting of Traditional Aboriginal Land in the Northern Territory for the benefit of Aboriginals”.  In Jungarrayi v Olney 34 FCR 496 the Full Court of the Federal Court identified the aims and objects of the Act in the following terms (at p 506):

            …it is directed to remedying, where possible, the hardships suffered by Aboriginals through the loss of their lands.  If in the performance of his functions as contained in s 50 of the Act, the Commissioner ascertains that there are traditional Aboriginal owners of particular land, the aim of the legislation is to set aside that land, in appropriate circumstances, through the establishment of a Land Trust for the benefit of the relevant Aboriginals: see ss 11 and 12 of the Act.  This then is a strong example of beneficial legislation which should be construed liberally in favour of the person or class of persons for whose benefit the legislation was enacted.

I reject the argument, which is implicit in the Northern Territory’s submissions, that the sole purpose of the land claim process established by the Act is to provide Aboriginals with secure occupancy of a place to live.  In the present context, it is my view that the principles identified in s 50(4) have no relevant application in respect of the exercise of my functions under s 50(1)(a)(ii) of the Act.”  

The Grounds of Review

26                  The grounds of each application are in common form, subject to references in D6 and D13 of 2002, to the adoption in the relevant reports of the reasons given in the McArthur River Region and Manangoora Region Land Claims.  Excising those incidental references, the grounds of each application as set out in the application in D5 of 2002 are as follows:

“The grounds of the application are that the First Respondent erred in:

1.      finding that there was little or no role for the application of the principles contained in section 50(4) ALRA in the context of the exercise of the Commissioner’s functions under section 50(1)(a) of the Act.

2.      concluding that the principles contained in section 50(4) of ALRA had no bearing on the exercise of his functions in relation to the present Inquiry.

3.      finding that the principles in section 50(4) of ALRA should not be applied to inhibit the Commissioner’s function to recommend the granting of Land where he has found that there are traditional Aboriginal owners of the Land.

4.      failing to take into account the principles set out in section 50(4) of ALRA and to give weight to them as a fundamental element in making his Report and his recommendation to the Second Respondent.

5.      failing to apply the principles in section 50(4) of ALRA and to recommend to the Second Respondent that the Land not be granted to a Land Trust.”

The Construction and Application of Section 50(4) of the Act

27                  The applications for review turn upon the proper construction and application of s 50(4) of the Act.  The point they raise is a short one.  It may be approached by first construing the subsection according to the ordinary meaning of its words.

28                  The principles to which the Commissioner is required to have regard are set out in pars (a) and (b).  Each is a self contained, positive, normative statement.  Taken together, they assert that Aboriginals should be able to acquire secure occupancy of the place on their traditional country where they live or desire to live.  The language of these statements imports no sense of limitation or inhibition of the Commissioner’s functions under the Act. 

29                  The purposes of the Act and the statutory context in which s 50(4) resides point powerfully against any such implication.  The Act is directed, as stated in the long title, to the granting of traditional Aboriginal land for the benefit of Aboriginals.  The subject matter of the Commissioner’s consideration under s 50(1) is “a traditional land claim”.  That means a claim by, or on behalf of, the traditional Aboriginal owners of the land arising out of their traditional ownership.  It is plain from the definition of traditional Aboriginal owners in s 3 that the notion of ownership founding a traditional land claim is based upon spiritual affiliations to a site on the land and primary spiritual responsibility for that site and for the land.  It is also based upon an entitlement by Aboriginal tradition to forage as of right over that land.  It recognises as Brennan J said in Meneling at 358 that:

“Aboriginal ownership is primarily a spiritual affair rather than a bundle of rights.”

30                  It might be said that a grant, if made under the Act, is of an estate in fee simple which carries with it rights of exclusive possession.  So it may be said the absence of actual or intended residence upon the relevant land should weigh against such a grant.  But to the extent that there is a balancing exercise required between the interests of traditional land - owners in securing a grant to a relevant Land Trust and the interests of others in access to the lands, this is a matter for the Minister informed by the Commissioner’s comments under s 50(3).  Those comments canvass the advantage of a grant to Aboriginals with traditional attachments to the land claimed and the detriment to persons or communities that might result if the claim were made (ss 50(3)(a) and (b)).  They do not inform the Commissioner’s recommendation.  They are for consideration by the Minister in the exercise of his discretion –Meneling at 333-334 (Gibbs CJ), 349 (Wilson J, Murphy J agreeing), 361-362 (Brennan J). 

31                  Section 50(4) does nothing other than require the Commissioner to take into account the principles it embodies as factors in favour of a grant where the circumstances to which those principles apply exist.  If the circumstances do not exist, on the evidence before the Commissioner, those principles are silent.  It was contended for the applicant that the approach adopted by the Commissioner was contrary to the view expressed by the majority of the High Court in Meneling as to the operation of that subsection and its importance as a fundamental element in the making of recommendations.  Meneling did not, however, touch upon the issue before this Court.  In contrasting the Commissioner’s duty under s 50(3) with that under s 50(4) Gibbs CJ said, at 333:

“When the section directs the Commissioner to ‘have regard to’ the strength or otherwise of the traditional attachment by the claimants to the land claimed (sub-s 3), and to the principles set out in sub-s 4, it requires him to take those matters into account and to give weight to them as a fundamental element in making his recommendation…”.

His Honour went on to say, at 333-334:

“The governing principles, expressed in sub-s 4, are that Aboriginals who by choice live at a place on the traditional lands of their tribal or linguistic group, or who wish to live at such a place, should, where practicable, be able to acquire secure occupancy of that place, or of such a place, as the case may be.  The Commissioner must, in making his recommendation, have regard to this general principle, and to the strength or otherwise of the traditional attachment of the claimants to the land claimed in the particular case.”

There is nothing in these passages to indicate a view on the case, not then before the Court, where the area of proposed grant was not an area at which Aboriginal people lived or wanted to live.  Again, in the context of the question about s 50(3) Wilson J said at 349:

“In my opinion, the Act recognizes the political character of a decision to grant traditional Aboriginal land in the Northern Territory for the benefit of Aboriginals.  It is consistent with that recognition to require the Commissioner to determine judicially the existence of traditional owners and the strength of their attachment and then, applying the principles stated in s 50(4), to make recommendations for the granting of the land claimed or any part of it.  Those matters, and hence the recommendation, determine whether any grant at all can be made.”

32                  Brennan J was of the view that s 50(4) did not affect the recommendation but was a matter to which the Commissioner must have regard in making his comments for the Minister’s consideration (362-363).

33                  Meneling, in our respectful opinion, is not authority for the proposition advanced by the applicant.  It was addressing a different question, in a different factual setting.  

34                  Section 50(4) requires the Commissioner to have regard to the principles “in carrying out his functions”.  His functions are defined in s 50(1).  For a number of those functions s 50(4) has no relevance.  It has no bearing on the function of ascertaining who are the traditional Aboriginal owners of the land (s 50(1)(a)(i)).  Nor does it have any bearing upon the functions in s 50(1)(b) and (c).  It may have a bearing upon the function of providing advice to the Minister on any matter relevant to the operation of the Act referred to the Commissioner by the Minister (s 50(1)(d)).  Whether it does or not will depend upon the subject matter of the referral.  The same is true of the advisory function in s 50(1)(e), and the functions that may be conferred on the Commissioner by a law of the Northern Territory (s 50(2)).  It is conceptually therefore quite consistent with that heterogeneous interaction between the Commissioner’s functions and the principles in s 50(4) that there may be some circumstances in which they have no bearing upon the formulation of his recommendations under s 50(1)(a)(ii). 

35                  The applicant proposes an inhibiting operation for s 50(4) that tends against the grant of land where no actual occupancy is sought.  That construction is inconsistent with the recognition by the Act, in its definitions of “traditional Aboriginal owners” and “Aboriginal tradition” of the spiritual dimensions of traditional ownership.  It is a concept which runs much wider than physical occupancy of a particular location. 

36                  Section 50(4) is in truth directed to what in relative terms is a narrow concept, namely that of “living at a place” on the traditional country of the tribe or group.  Living “at a place” accords with the prevailing culture of those who came from elsewhere to settle in Australia.  As a concept, it is very much narrower in geographic scope than the notion of traditional ownership with which the Act is concerned and fundamentally different in nature from that notion.  As the Commissioner said in his report on the McArthur River Region Land Claim at par 75:

“… traditional Aboriginal ownership involves more than simply living on the land.  The definition of traditional Aboriginal owners identifies the connection between the owners and the land as being spiritual in nature.” 

The point is underlined by the discussion of the relationship between Aboriginal people and their country in the judgment of Brennan J in Meneling at 357-358.  Section 50(4) is evidently directed to a specific beneficial purpose connected with living at a particular place and is not to be construed as derogating from, and thereby frustrating, the wider beneficial purposes of the Act and recognition that the Act gives to the complex and spiritual nature of the connection that Aboriginal people have with their country.

37                  In each of the applications before the Court the Commissioner has, in effect, considered s 50(4) to determine whether the principles it embodies are capable of application to the factual circumstances of the claims under consideration.  Given that the areas under claim in each case were areas of land upon which no Aboriginal person was actually living or intending to live, the principles had no relevance.  He was therefore correct to conclude that in the present applications the subsections had no bearing. In taking the approach he did, he

acted consistently with the construction and purposes of the Act and its subject matter.  He did not err in law.  The applications should be dismissed with costs.

Associate:        

Dated:              3 September 2002