Re R v Toohey; Ex parte Meneling Station Pty Ltd

158 CLR 327
44 ALR 63

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(Judgment by: WILSON 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:
WILSON J

In this proceeding the applicants seek the issue of two prerogative writs. They ask that a writ of mandamus be directed to the Aboriginal Land Commissioner (Toohey J.) commanding him to exercise according to law the functions conferred and imposed upon him by Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), as amended ("the Act"), in relation to the claim called the Finniss River Land Claim. In the second place they apply for a writ of prohibition directed to the Commonwealth Minister of State for Aboriginal Affairs to prohibit him from proceeding further upon the recommendations concerning the Finniss River Land Claim made by the Commissioner on 22 May 1981 and, in particular, from implementing the recommendations so far as they relate to lands the subject of certain grazing licences. It is convenient to deal separately with each application.

1. Mandamus

The sole ground on which it is argued for the applicants that a writ of mandamus should issue is that the learned Commissioner failed to perform his functions according to law in that he failed, in making recommendations to the Minister under s. 50(1)(a)(ii) of the Act, to take into account the detriment to persons, including the applicants, that might result if the claim was acceded to in whole or in part. The problem is raised by the uncertain wording of the relevant provisions of s. 50. Those provisions are:

"(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."

Sections 11 and 12 provide the machinery whereby a grant of an estate in fee simple in land may be made to a Land Trust, provided that two conditions precedent are satisfied. Those conditions are, first, that the Commissioner recommends to the Minister that a grant of a specified area of Crown land be made and, secondly, that the Minister is satisfied that the land or any part of the land should be so granted.

The competing submissions advanced for the applicants and the respondents did not more than repeat arguments which have been ventilated at length in several different hearings of land claims by the Commissioner: see the reports known as the Borroloola Report (pars. 15-24), the Warlpiri Report (pars. 9-12), and the Finniss River Report (pars. 244-255), and the Annual Reports of the Commissioner for the years 1978 and 1979.

In the Borroloola Report (par. 24) the Commissioner summarized his functions in respect of a claim to unalienated Crown land as follows:

"1. I am to ascertain who are the traditional Aboriginal owners of the land claimed, if there be such.

2. I am to have regard to the strength or otherwise of their traditional attachment to that land.

3. I am to have regard to the principles spelled out in subs. (4).

4. That done, I am to make recommendations to the Minister for the granting of land, if it be appropriate.

5. I am then to comment on the matters mentioned in paragraphs (a) to (c) of sub-s. (3), but in doing so I shoud make some evaluation of those matters in such a way as to assist the Minister in deciding whether to act on my recommendations."

His Honour reiterated and defended this view of his functions in the Finniss River Report.

Mr. Conti, counsel for the applicants, argues that the Commissioner has misconceived his function. He submits that his task is to take into account all of the matters set out in sub-s. (3) when considering whether to recommend a grant. The sub-section directs what he shall do in making his report. It is only sensible that his recommendation should be grounded on the totality of the report. The Minister should have the benefit of the exercise of a judicial discretion to guide him in the final decision as to whether a grant should be made. In the present case, therefore, the Commissioner should have taken into account the detriment which a grant of the whole area claimed would cause to the applicants; had he done so, he could conveniently have harmonised the competing interests by recommending the grant of part only of the land.

The problem is wholly one of construction of a novel piece of legislation. There are no precedents. The long title recites, inter alia, that it is an Act "Providing for the granting of Traditional Aboriginal Land in the Northern Territory for the benefit of Aboriginals . . . ". The fulfilment of the statutory scheme is embodied, as I have already indicated, is ss. 11 and 12, when the Minister having received a recommendation and a report from the Commissioner is satisfied that a grant should be made. He will then establish a Land Trust and advise the Governor-General to execute a grant.

The Commissioner makes clear in the reports to which I have referred the considerations which led him to the view which is now under challenge. At the risk of failing to do justice to those reasons, I would summarize them as follows:

1.

The structure of s. 50(1)(a) is to gear the making of a recommendation to a finding of traditional Aboriginal ownership, rather than to the range of matters canvassed by pars. (a) to (d) in sub-s. (3). The making of a recommendation for the granting of land is dependent upon such a finding. It is qualified only by the obligation to have regard to the strength or otherwise of the traditional attachment of the claimants to the land claimed.

2.

It is not possible to ignore the shift in the language of sub-s. (3) from "shall have regard to" to "shall comment on". A difference of function is indicated.

3.

The Minister has no power to effect a grant unless the Commissioner first makes a recommendation. The scope of the Minister's discretion would be unnecessarily restricted if the Commissioner were to take into account discretionary considerations to which the Minister might attach different weight .

4.

The Act provides no criteria whereby the Commissioner could make a judicial assessment of competing interests which are so diverse as traditional ownership and the detriment which a grant might cause to other persons. If the Commissioner must weigh up all the matters stated in s. 50 in determining whether to make a recommendation, there is no guidance in the Act as to the priority to be accorded to competing interests or as to the manner in which conflicts between them are to be resolved.

In my opinion, the Commissioner has adopted the correct approach to his task. In weighing up the competing considerations which are provoked by the working of s. 50, I am influenced particularly by the fact that s. 11 controls the scope of the discretion accorded to the Minister, indeed its very existence, by reference to a recommendation of the Commissioner. 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. If the Commissioner's recommendation was to be made in the exercise of a judicial discretion which had regard to the matters listed in pars. (a) to (d) of s. 50(3), it might sometimes be the case that notwithstanding the satisfactory proof of a strong traditional claim, the Commissioner would be led by considerations extraneous to that claim to refrain from making a recommendation. In that case, whatever the Minister's wishes might be, he would be precluded from even considering the making of a grant. The policy of the Act being to facilitate the grant of land for the benefit of Aboriginals who have a strong traditional claim to it, that construction of s. 50 should be adopted which will secure to the Minister the widest possible discretion as to whether, given such a claim, a grant should be made. The matters which are listed in s. 50(3) as the subject of comment in the report are matters which expose for the consideration of the Minister the implications of a decision by him to make a grant.

I would refuse the application for a writ of mandamus.

2. Prohibition

In the Finniss River Report, the Commissioner recommends that grants be made of areas of land which include land which is the subject of grazing licences granted pursuant to the Crown Lands Act 1931 (NT), as amended. The applicants argue that the grant of a grazing licence is the grant of an estate or interest in land within the meaning of that expression in the Land Rights Act, which I shall continue to refer to as "the Act". If this is so, then the land in question is not "unalienated Crown land" and the Commissioner has no jurisdiction to make a recommendation relating to such land. It follows that the Minister has no power to act on that part of the recommendation that relates to land the subject of such licences .

The Crown Lands Act deals generally with the administration and alienation of Crown lands in the Northern Territory. Part III of the Act deals with the grant of estates in fee simple, of leases and of easements. Part VI deals with the grant of licences bearing the description of grazing licences, occupation licences and miscellaneous licences respectively. Section 107(1) empowers the Minister to "grant licences to persons to graze stock . . . on any Crown lands . . . for such period, not exceeding one year, as is prescribed". The holder of such a licence may apply to the Minister for permission to make specified improvements on the land. In such a case, on the expiration or determination of the licence, the licensee is entitled to be compensated for those improvements (s. 107A). Regulations made pursuant to the Act require the payment of a fee on the application for a licence (reg. 64) and rent calculated in the manner provided. The licence will prescribe the maximum number and type of stock which may be depastured on the land in respect of which it is granted and may include any other conditions which the Minister may think necessary or desirable in any particular case (reg. 66). Subject to forfeiture or cancellation, a grazing licence remains in force until 30 June next following the date of the grant of the licence and may, at the discretion of the Minister, be renewed from time to time for a period not exceeding twelve months (regs. 70, 72). Where the licensee has failed to comply with a condition of the licence, the Minister may, inter alia, forfeit the licence (reg. 71). It may also be cancelled by the Minister at the expiration of three months' notice in writing (reg. 71A). A licence may be surrendered but in that event no compensation is payable for improvements (if any) on the land and no part of the fee or rental is refunded (reg. 71B).

The Commissioner concluded that the rights conferred by the Act and regulations were given to a particular individual to make use of land for a specified purpose, conferring no right to the land itself. He considered that the personal nature of the right was emphasized by the power to revoke or cancel.

The case for the applicants is that a grazing licence confers an estate or interest in land within the meaning of the Act, with the result that land the subject of such a licence is not available for claim by its traditional Aboriginal owners. It is said that the licence confers a right in the nature of a profit a prendre, the profit being the right to graze a specified number of stock on the land.

The Act does not define the expression "estate or interest" which appears in the definition of "alienated Crown land" and "unalienated Crown land" in s. 3(1). However, sub-s. (2) of s. 3 should be mentioned. That sub-section, so far as material, provides:

"(2)

Unless the contrary intention appears, a reference in this Act to an estate or interest in land . . . does not include a reference to -

(a)

a mining interest;

(b)

an interest arising out of the operation of the Atomic Energy Act 1953 or any other Act authorizing mining for minerals;

(c)

an interest arising out of the taking possession, mining or occupation of land by virtue of a miner's right; or

(d)

an interest by way of the occupation or use, with the licence or permission of the Crown, of land by an Authority or a mission."

"Authority" means an authority established by or under a law of the Commonwealth or a law of the Northern Territory (s. 3(1)). I mention these express exclusions only to avoid misunderstanding. It might be thought that, should some analogy be capable of being drawn between a grazing licence and "an interest by way of the occupation or use" of land, that the express exclusion of the latter implied an intention to include the former within the expression "estate or interest in land". In my opinion, no such implication can be drawn. In the first place, one cannot draw an analogy between the two interests without knowledge of the precise rights attaching to a licence or permission, granted to an Authority or a mission, to occupy or use the land. In the second place, the express exclusions in sub-s. (2) are offset by their express inclusion in the term "an estate or interest in Aboriginal land" in s. 66 of the Act. In the third place, the Act makes express provision to meet the situation when an estate in fee simple is vested in a Land Trust in land which is being occupied or used by an Authority (s. 14) or by a mission (s. 18), with the licence or permission of the Crown.

In Stow v. Mineral Holdings (Aust.) Pty. Ltd. (1977) 51 ALJR 672, at p 679, Aickin J., after noting the fact that the expression "estate or interest in land" was not defined in any Act relevant to the matter there under consideration, said:

"In my opinion the ordinary meaning of the compound expression 'estate or interest in land' is an estate or interest of a proprietary nature in the land. This would include legal and equitable estates and interests, for example, a freehold or a leasehold estate, or incorporeal interests such as easements, profits a prendre, all such interests being held by persons in their individual capacity."

This is the sense in which the term is to be construed in the present Act. There is no ambiguity about it, and no basis for seeking an alternative meaning such as there was in considering the meaning of the expression "on behalf of", where it appears in s. 50, in Reg. v. Ross; Ex parte Attorney-General (NT) (1980) 54 ALJR 145, at p 151

It is unnecessary to engage in lengthy consideration of the rights which have been found to constitute a profit a prendre. It is a right to enter another's land to take some portion of the soil or of its natural produce. The grant may confer an exclusive right, or it may be a right enjoyed in common with others. It may be granted either in perpetuity or for a fixed term and presumably it may by agreement be terminable on specified notice: cf. Unimin Pty. Ltd. v. The Commonwealth (1974) 22 FLR 299 . The right of pasture may be the subject of a profit a prendre; the taking and carrying away is effected by means of the mouths and stomachs of the cattle in question: Megarry and Wade, The Law of Real Property, 4th ed. (1975), p. 881; Halsbury's Laws of England, 4th ed., vol. 14, par. 242; White v. Williams [1922] 1 KB 727 ; White v. Taylor (No 2) (1969) 1 Ch 160, at p. 177; Bromell v. Robertson (1886 ) 12 VLR 560. Profits are classed as incorporeal hereditaments and may be assigned. They may properly be described as interests in land.

A mere licence is clearly distinguishable from a profit a prendre. "A dispensation or licence properly passeth no interest, nor alters or transfers property in any thing, but only makes an action lawful, which without it had been unlawful.": Thomas v. Sorrell (1673) Vaugh 330, at p 351 (124 ER 1098, at p 1109). It is a personal privilege conferring no interest in the land. It is not transferable, nor can it be granted in perpetuity. It is generally revocable and merely excuses a trespass until it is revoked: Halsbury, vol, 14, par. 252.

The right which is under consideration here is a statutory creation. It is more than a mere licence. The answer to the problem must be found in the view taken of the totality of the legal rights conferred by the statute set against the question, not whether a grazing licence confers a right corresponding to the common law category of a profit a prendre, but whether it is "an estate or interest in land" within the meaning of that term in the Act.

I find the resolution of the issue more than ordinarily difficult. On the one hand, the licence confers a right on the licensee to graze a specified number of and type of stock on the land and this necessarily implies a right to remove certain of the natural produce of the land. The fact that it does not confer an exclusive right to possession of the land, essential as that is to distinguish a tenancy from a licence (cf. Radaich v. Smith (1959) 101 CLR 209 ), is not essential in the case of a licence of this kind. The concept of forfeiture for breach of conditions of the licence is language appropriate to an interest in land. The right of the licensee, with the permission of the Minister, to erect improvements on the land and to be secured in compen sation for their value on termination of the licence emphasizes its significance yet without making a decisive contribution to the question whether it confers an estate or interest in land. Again, the grant of a licence for a period not exceeding one year is equivocal. All these features are consistent with a conclusion that a grazing licence confers an interest in the land.

On the other hand, in my view, there are powerful considerations that tend to a contrary conclusion. The Crown Lands Act draws a clear distinction between estates in fee simple, leases and easements, all of which are estates or interests in land, and licences. Again, a licence is subject to cancellation unilaterally by the Minister on three months' notice. Irrevocability is an important feature of an estate or interest in land: Unimin (1974) 22 FLR, at p 308. In O'Keefe v. Williams (1910) 11 CLR 171 , the appellant was the holder of annual occupation licences under the NSW Crown Lands Act of 1884 and 1895. The licences were renewable at the option of the licensee. There was no general right of termination in the Minister. Griffith C.J. said (1910) 11 CLR, at p 191:

"As to the nature and duration of the tenure under these licences it is sufficient for the present purpose to say that the right of occupation is exclusive, and that the tenure is terminable in certain defined events only. In my opinion the substantial relation between the Crown and the holder of an occupation licence is that of landlord and tenant."

The discretion in the Minister in the present case to terminate the licence unilaterally and more or less summarily, without compensation (save as to improvements erected with the permission of the Minister), tends strongly to deny to the licence the character of an interest in land. Furthermore, the Crown Lands Act does not contemplate, in my opinion, any assignment of the licence. It remains personal to the grantee of the licence, I say this because there is no mention of transferability in that Act or the regulations. Leases are transferable, but only with the permission of the Minister. It would be extraordinary if the legislation placed such a control on the assignment of leases while allowing grazing licences to be freely transferable without permission or even notice to the Minister.

After weighing up these consideration, I have come to the conclusion that a grazing licence does not confer an estate or interest in land within the meaning of the Act. I am fortified in this conclusion by the thought that a different result would make the conduct of inquiries by the Commissioner pursuant to s. 50 much more difficult. One of the features of a grazing licence is its unpredictable duration. Unless renewed, it expires on 30 June following the grant, the renewal lies in the relatively unfettered discretion of the Minister, and it may be cancelled at any time on three months' notice, all without any default on the part of the licensee. If the existence of the Commissioner's jurisdiction is to depend upon this potentially variable state of affairs with regard to grazing licences the situation could be chaotic. He could reject part of a claim at the commencement of an inquiry as outside his jurisdiction because the land was the subject of a grazing licence only to find in the course of the inquiry that the licence had expired or been cancelled whereupon he would presumably be obliged to readmit that part of the claim and reorganize the course of the inquiry.

In my opinion, therefore, the learned Commissioner was correct in holding that a grazing licence created a right to go upon Crown land to pasture stock, a right which is not capable of assignment, a right personal to the licensee for a limited time and for a limited purpose. In other words, it is a right which does not confer an interest in land. The land the subject of such grazing licences retained the character of unalienated Crown land within the meaning of the Act and the Commissioner was seized with jurisdiction to proceed as he did.

I would refuse the application for a writ of prohibition.