Re R v Toohey; Ex parte Meneling Station Pty Ltd

158 CLR 327
44 ALR 63

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(Judgment by: MASON J)

Re R v TOOHEY; Ex parte MENELING STATION PTY LTD

Court:

Judges: Gibbs C.J.

Mason J.Murphy J.
Wilson J.
Brennan J.

Subject References:
Real Property
Aboriginal Lands
Administrative Law

Judgment date: 8 December 1982

Canberra

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Judgment by:
MASON J

This application for a writ of mandamus and for a writ of prohibition arises from a land claim known as the Finniss River Land Claim made by the Northern Land Council. In 1979 the Council lodged with the Aboriginal Land Commissioner, the first respondent, in respect of certain land in the Northern Territory, a claim under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("the Act"). The Commissioner recommended that there be grants to two Land Trusts of the relevant land. The Minister for Aboriginal Affairs, the second respondent, has not yet announced any decision as to whether he proposes to make a grant of land pursuant to the recommendations.

The Finniss River Land Claim was made on behalf of Aboriginals claiming to have a traditional land claim to a broad sweep of land from the mouth of the Finniss River in a south-easterly direction to the Adelaide River and the Stuart Highway.

Section 50 of the Act, to which I shall refer in more detail later, provides that where application is made to the Commissioner by or on behalf of Aboriginals claiming to have a traditional land claim to an area of unalienated Crown land, or alienated Crown land in which all estates and interests are held by or on behalf of Aboriginals, the Commissioner shall ascertain who are the traditional Aboriginal owners of the land and make recommendations to the Minister for the granting of the land or part of the land in accordance with ss. 11 and 12. Section 50(3)(b) requires the Commissioner to "comment" in his report on the detriment to persons or communities that might result if the claim were acceded to in whole or in part.

Section 11(1) provides that, where the Commissioner recommends to the Minister that land should be granted to a Land Trust and the Minister is satisfied that the land should be so granted, the Minister shall, inter alia, establish a Land Trust to hold the land for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of the land and he shall recommend to the Governor-General that a grant of an estate in fee simple in the land be made to the Land Trust. Section 12 deals with the execution of the deed of grant by the Governor-General.

The Commissioner furnished a report to the Minister on 22 May 1981. He found that there are Aboriginals who are traditional owners of the area claimed, these traditional owners being entitled by Aboriginal tradition to the use or occupation of the land in question. The Commissioner proceeded to recommend to the Minister that there be a grant to two Land Trusts of all of the unalienated Crown land in the area claimed. He found that the land the subject of a number of grazing licences, covering the western portion of the area claimed and affecting substantially other sections, was "unalienated Crown land". The Commissioner also made comments on the topics specified in s. 50(3)(a)-(d), such as the likelihood of detriment to persons which might result from the Minister's adoption of his recommendation (par. (b)).

Pursuant to an order made by Wilson J. the applicants applied by notice of motion to the Full Court for a writ of mandamus directed to the Commissioner and a writ of prohibition directed to the Minister. The applicants sought a writ of mandamus commanding the Commissioner to exercise according to law the functions conferred an imposed upon him by s. 50 of the Act on the ground that the Commissioner merely commented upon, but failed to actually take into account, the detriment to persons including the applicants that might result if the Minister acceded to the claim, and a writ of prohibition prohibiting the Minister from proceeding further upon the Commissioner's recommendations and, in particular, from implementing those recommendations to the extent that they relate to lands the subject of grazing licences .

The Commissioner's Duty Under Section 50

Section 50, in so far as is presently material, provides:

"(1)

The functions of the 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;

...

(3)

In making a report in connexion with a traditional land claim the 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 the 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."

The Commissioner held that the four matters enumerated in pars. (a)-(d) inclusive of sub-s. (3) were not to be taken into account by him in the making of his recommendation under s. 50(1)(a)(ii) and that they were intended to be the subject of comment only on his part, the weight to be attached to them being a matter for the Minister alone in making his decision under s. 11.

The Commissioner attached significance to the difference between the expressions "shall have regard to" and "shall comment on" in the opening words of sub-s. (3), the former phrase being repeated in subs. (4). The applicants, on the other hand, urge that the difference in the expressions is of little moment, contending that the Commissioner is required to base his recommendations on all the considerations mentioned in sub-s. (3) as well as those in sub-s. (4).

Although s. 50(1)(a)(ii) speaks of the Commissioner's duty to report his findings to the Minister, it is clear that, when this provision is read with sub-s. (3), the Commissioner's report will also set out his recommendations. Under sub-s. (1)(a)(ii) the Commissioner is bound to make recommendations for the granting of the land or part of it once he finds that there are Aboriginals who are the traditional Aboriginal owners of the land. In any event it would be artificial to suggest that the Commissioner's report is to be confined to his findings with the consequence that sub-s. (3) has no application to his recommendations.

The Commissioner might be justified in refusing to find that the claimants are the traditional owners of the land if he concluded that the traditional attachment by the claimants to the land was very slight. However, he could, if he were so minded, use the slightness of the claimants' traditional attachment to the land, not as a ground for refusing to make a finding in their favour, but as a ground for recommending that part only of the land be granted to them. Sub-section (3) makes it clear that the Commissioner's regard to the strength of the traditional attachment is to be had in the course of making his report and the wording of sub-s. (1)(a)(ii) indicates a close relationship between that report and the functions of finding and recommending. In other words, the expression "have regard to" in sub-s. (3) introduces a factor which is material to the Commissioner's functions in finding and recommending.

The change in language from "shall have regard to" to "shall comment on" in sub-s. (3) and the subsequent reversion to "shall have regard to" in sub-s. (4) is disconcerting to say the least of it. But the change in language, surprising though it is, does not justify an inference or implication that the expression "shall comment on" was intended to exclude from the Commissioner's discretion each of the four matters enumerated in the succeeding paragraphs. Indeed, it is almost a contradiction in terms to say that in making his report (which consists in essence in making a finding and a recommendation) the Commissioner shall comment on these factors but shall nevertheless not take them into account in discharging his statutory function.

Had sub-s. (1)(a) stood on its own there would have been no doubt that the Commissioner's discretion in making a recommendation would have extended to all the matters mentioned in sub-ss. (3) and (4). By requiring the Commissioner to have regard to the strength or otherwise of the traditional attachment sub-s. (3) ensures that this factor will become a central element in the Commissioner's report. But I do not see that it provides a sound basis for going further so as to impliedly exclude regard for other factors. In this setting the additional requirement that the Commissioner shall comment on the four matters mentioned in pars. (a) to (d) inclusive gives emphasis to the need for him to cover them specifically in his report. The object of the requirement, it may be conceded, is to ensure that the Minister is better informed, but this in itself is entirely consistent with the comments forming part of the Commissioner's exercise of his statutory discretion.

It is a matter of some importance that the matter referred to in par. (a) is virtually indistinguishable from the factor mentioned in the opening words of sub-s. (3). It could scarcely be suggested that, consistently with the opening words, the Commissioner could not have regard to the matter mentioned in par. (a). Yet, in substance this is the effect of the respondents' argument. They say "shall comment on" means "shall comment on but shall not take into account". And when we look ahead to par. (b) there is a strong case for saying that the strength of the traditional attachment by the claimants to the land is not something that can be assessed in isolation, without regard to detriment of the kind mentioned in par. (b).

Some support for the applicants' case is provided by the word "recommendations" in s. 50(1)(a)(ii). If the Commissioner is to exclude from his consideration the matters in s. 50(3)(a)-(d), a recommendation for the granting of the land would flow automatically from a finding of traditional Aboriginal ownership. The word "recommendations" seems inapt in such a context for the word usually connotes a proposal or course of action favoured by the person making the recommendation after he has considered the relevant arguments and alternatives. This argument is partly, but not entirely, met by the requirement in s. 50(3) that the Commissioner shall "have regard to the strength or otherwise of the traditional attachment by the claimants to the land claimed". The duty to "make recommendations to the Minister for the granting of the land" seems to go beyond a mere examination of the strength of the traditional attachment to the land and to call for a consideration of the consequences of the granting of the land, consequences which fall within pars. (a)-(d).

In the result I take the view that, in imposing the duty upon the Commissioner to comment on the four matters in pars. (a)-(d) in making his report, Parliament was at pains to ensure that comment on those matters emerged in the report. The four matters were clearly seen as the four crucial considerations which could countervail the fairness and justice of making a grant to a Land Trust. By ensuring comment by the Commissioner on these matters Parliament sought to avoid the possibility that important matters of policy would be overlooked. But I see no sound basis for imputing to Parliament an intention that the Commissioner should not take into account in making his recommendations the comments which it requires him to make.

The Commissioner relied upon the structure of s. 11 in forming his view as to the construction of s. 50. The two pre-conditions to the Minister making a grant to a Land Trust pursuant to s. 11(1) are that -

"(a)

the Commissioner recommends to the Minister in a report made to him under paragraph 50(1)(a) that an area of Crown land should be granted to a Land Trust for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of that area of land, whether or not the traditional entitlement is qualified as to place, time, circumstance, purpose or permission; and

(b)

the Minister is satisfied that the land or any part of the land should be so granted".

The Commissioner thought that, if the matters in s. 50(3)(a)-(d) were matters to be taken into account by him in arriving at his recommendation, the situation could arise where the Commissioner may base his recommendations on matters to which the Minister would give a distinctly different weight. If the Commissioner attributed such great weight to the matters that he recommended that no grant should be made, the Minister would be deprived of the power to make a grant because the pre-condition in s. 11(1)(a) would not be satisfied, even if he disagreed to such an extent with the Commissioner on the weight to be attributed to the relevant matters that he would himself have been inclined to make the grant. This, thought the Commissioner, unnecessarily restricts the Minister's discretion in s. 11(1)(b).

However, this argument is met by implications arising from the nature of the Commissioner's position. The Commissioner must be a judge of the Supreme Court of the Northern Territory (s. 53(1 )). This suggests that the Commissioner will be no less qualified to balance the relevant considerations than the Minister. Moreover, it is the Commissioner, not the Minister, who conducts an inquiry into a land claim. As he is the person who personally sees and hears the witnesses and reviews all the evidence, it is natural that he should be called upon in the first instance to evaluate the various competing considerations which are relevant to the recommendation which he is required to make. In saying this, I do not depreciate the importance of the Minister's discretion under s. 11(1)(b). But, for the reasons that I have given, I do not think that the fact that a negative recommendation by the Commissioner deprives the Minister of the power to exercise any discretion at all was a result necessarily unintended by Parliament.

If, as I conclude, the Commissioner was bound to take into account s. 50(3)(a)-(d) in making his recommendations then he is a public official who has failed to perform a public duty (R. v. War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 , at pp 242-243) and mandamus will lie at the instance of those with sufficient standing to compel him to perform it. If he had taken into account the factors enumerated in s. 50(3)(a)-(d), and in particular s. 50(3)(b), in making his recommendations it is at least possible that his recommendations would have been more favourable to the applicants. Indeed, in par. 425 of his report the Commissioner acknowledged that the excision of certain land from the area claimed "would remove any likelihood of detriment" to the applicants. In these circumstances the applicants have a real and substantial interest in compelling the Commissioner to perform his duty according to law.

I would therefore make the order for mandamus commanding the Aboriginal Land Commissioner for the time being (the first respondent having ceased to be the Commissioner) to deal with the land claim according to law.

The Grazing Licences

Section 50 of the Act confers jurisdiction on the Commissioner in respect of land claims to "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". The land the subject of grazing licences in the area claimed does not fall into the latter category and the only question is whether it is "unalienated Crown land".

Section 3(1) defines "unalienated Crown land" as meaning "Crown land in which no person (other than the Crown) has an estate or interest . . .". The sub-section gives a complementary definition of "alienated Crown land". The crucial question, then, is whether the persons holding grazing licences over parts of the area claimed have "an estate or interest" in the land by virtue of their grazing licence. Section 3(2) states that, unless the contrary intention appears "a reference in this Act to an estate or interest in land includes a reference to an interest by way of a right against the Crown to a grant of an estate or interest in land" and excludes certain interests which are not presently material.

The grazing licences are granted pursuant to s. 107 of the Crown Lands Act 1931 (NT). Section 107(1) provides:

"The Minister may, under and subject to the regulations, grant licences to persons to graze stock or any particular kind of stock, on any Crown lands, which are not held under a lease or licence granted under this or any other Ordinance, or on any reserved or dedicated lands, for such period, not exceeding one year, as is prescribed."

Division 1 of Pt VII of the Crown Lands Regulations deals with grazing licences. The amount payable for a grazing licence is calculated at the rate of $0.02 per month per 2.6 square kilometres of land (reg.64(4)) subject to the Minister, in his discretion, making a determination in accordance with the formula laid down by reg. 73. A grazing licence shall include a condition prescribing the maximum number and type of stock which may be depastured on the land and may include any other conditions which the Minister may think necessary or desirable in any particular case (reg.66). An applicant for a grazing licence may, if he has not commenced to graze stock on the land, withdraw his application if he is not satisfied with the conditions imposed by the Minister (regs. 67(3) and 68(2)). A grazing licence ceases to be in force on 30 June each year (reg. 70) but may be renewed, at the Minister's discretion, for a further period not exceeding twelve months (reg. 72(1)). Failure to comply with a condition of the licence may lead to forfeiture of the licence (reg. 71) and a licence may be cancelled if the Minister gives three months' notice in writing of his intention to cancel it (reg. 71A). There is also provision for surrender of a grazing licence (reg. 71B).

The applicants' argument is that a grazing licence created under the Crown Lands Act is a profit a prendre and constitutes an interest in land. The respondents do not dispute that a profit a prendre constitutes an interest in land at common law. Their submission is that a grazing licence created under the Crown Lands Act is not a profit a prendre; that the statute gives a clear indication that a grazing licence does not carry with it an interest in land.

There is no question that the phrase "estate or interest" in s. 3(1) of the Act has, in its ordinary and natural usage, a proprietary connotation: see Stow v. Mineral Holdings (Aust.) Pty. Ltd. (1977) 51 ALJR 672, at p. 679; Harada v. Registrar of Titles (1981) VR 743, at p. 748. No one who has a merely personal right in relation to land can be said to have an "estate or interest" in that land. Here the natural and ordinary meaning of the expression is reinforced by the circumstance that it is a constituent element in the definition of "unalienated Crown land". The definition gives emphasis to the notion that Crown land remains unalienated unless and until the Crown grants to another some proprietary interest in the land.

In National Provincial Bank Ltd. v. Ainsworth (1965) AC 1175, at pp. 1247-1248, Lord Wilberforce said:

"Before a right or an interest can be admitted into the category of property, or of a right affecting property, it must be definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability."

In my opinion, the rights of the holder of a grazing licence created under the Crown Lands Act fall short in two respects of the concept of property or proprietary rights expressed by Lord Wilberforce. Regulation 71 (the Minister's power to forfeit a grazing licence where the licensee fails to comply with a condition of the licence after having been given notice to do so) and reg. 71B (the right of a licensee to surrender his licence) are not inconsistent with the notion that a grazing licensee holds an interest in land. But reg. 71A represents a substantial obstacle to the applicants' case. That regulation enables the Minister to cancel a licence, the only pre-condition being that he give three months' notice in writing of his intention to do so. No default on the part of the licensee is necessary. The regulation suggests that the licensee has no interest in the land at all. The future of his right to graze stock is by virtue of the Minister's power to cancel, absolutely in the hands of the Minister and beyond his own control. A right terminable in the manner permitted by reg. 71A lacks that degree of permanence of which his Lordship spoke .

Assignability is not in all circumstances an essential characteristic of a right of property. By statute some forms of property are expressed to be inalienable. Nonetheless, it is generally correct to say, as Lord Wilberforce said, that a proprietary right must be "capable in its nature of assumption by third parties": see generally the discussion by Dawson and Pearce, Licences Relating to the Occupation or Use of Land (1979), p. 220.

There is nothing in the Crown Lands Act to indicate that a grazing licence is assignable. In fact, all indications are to the contrary. There is provision in s. 26 for the transfer of a lease granted under that Act, but no corresponding provision in relation to grazing licences. Moreover, the regulations, to the extent that they deal with applications for licences, do not seem to leave much room for assignability. Regulation 65, which vests in the Minister the discretion to grant or refuse applications for grazing licences, is couched in the widest terms. Regulation 66(d) enables him to impose any conditions he thinks necessary or desirable on a licence. When the regulations so carefully place with the Minister the discretion to grant applications it is difficult to conclude that it was intended that successful applicants could later, completely outside the control of the Minister, assign the licence.

Section 107A gives further emphasis to the personal nature of the right conferred by the grant of a grazing licence. That section provides that a licensee must apply for permission if he wishes to make or erect improvements on the land. This is a very strong indication that property in the land remains in the Crown and does not pass to the licensee. In Quinane v. Browne (1901) 27 VLR 100, Hood J. had to consider whether a person having the right to depasture sheep and cattle on land under licence from the Crown under s. 123 of the Land Act 1890 (Vict.) was "holding any land" under the Vermin Destruction Act 1890 (Vict.). In concluding that the licensee had no title to the land his Honour was influenced by the fact that the licence conferred no right to build or cultivate or, without the permission of the Minister, to construct dams and erect fences (1901) 27 VLR, at p. 103.

Earlier, in Shire of Wimmera v. Brimacombe (1897) 23 VLR 217, Hood J. was faced with the question whether land over which there was a grazing licence under the Land Act was unoccupied Crown land under the Local Government Act 1890 (Vict.). He held that the Local Government Act dealt with occupiers "having some right in the land itself" and thought that a grazing licensee under the Land Act was not such a person (1897) 23 VLR, at p 219 That decision is of relevance here because, in so concluding, his Honour had regard to a condition in the licence that the land could be alienated or reserved by the Crown at any time and a further condition restricting improvements by the licensee. I have referred to the significance of s. 107A of the Crown Lands Act, which imposes a condition respecting improvements. The former condition is akin to reg. 71A in the present case, the similarity being that it tends to undermine the permanence and stability of the licensee's right.

Much argument was directed to the significance of exclusive possession in the characterization of grazing licences. Ultimately , however, I do not think that it is an issue which takes the applicants very far, even if it be the case that exclusive possession is very often a characteristic of a proprietary right. The applicants contend that the grazing licensee is given exclusive possession of the interest granted in the sense that a grazing licence cannot be granted to another which would interfere with the exercise of the original licence. Even if the applicants are correct in submitting that more than one grazing licence cannot be granted over the same land at the same time because Crown land over which there is a grazing licence is "held under a . . . licence" within s. 107 of the Crown Lands Act, I do not think that it follows that a grazing licence confers on the licensee a right to exclusive possession. The terms and conditions of the licence do not suggest that it confers such a right.

My conclusion is that the intention evinced by the Crown Lands Act and the Crown Lands Regulations is that all that should pass to a grazing licensee is a personal right and no right of a proprietary nature. I say this notwithstanding the similarity between the rights conferred by a grazing licence and the classical definition of a profit a prendre:

"... a profit a prendre confers a right to take from the servient tenement some part of the soil of that tenement or minerals under it or some of its natural produce, or the animals ferae naturae existing upon it ..." (Alfred F. Beckett Ltd. v. Lyons (1967) 1 Ch 449, at p 482, per Winn L.J.)

The grazing licence is the creature of statute forming part of a special statutory regime governing Crown land. It has to be characterized in the light of the relevant statutory provisions without attaching too much significance to similarities which it may have with the creation of particular interests by the common law owner of land.

It follows that the Commissioner was correct in concluding that the land the subject of grazing licences in the area claimed is "unalienated Crown land".

In the result I would refuse the application for a writ of prohibition .