Re R v Toohey; Ex parte Meneling Station Pty Ltd

158 CLR 327
44 ALR 63

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(Judgment by: BRENNAN 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:
BRENNAN J

The Aboriginal Land Rights (Northern Territory) Act 1976 ("the Act") was enacted by the Parliament of the Commonwealth consequent upon the final Report made by the Hon. Mr. Justice A. E. Woodward under a Commission to inquire into and report upon, inter alia, the appropriate means to recognize and establish the traditional rights and interests of Aboriginals in and in relation to land. The stimulus for the inquiry was the judgment of Blackburn J., then a judge of the Supreme Court of the Northern Territory, in Milirrpum v. Nabalco Pty. Ltd. (1971) 17 FLR 141 . In that case, Blackburn J. had held that the traditional rights and interests of Aboriginals in land situated on the Gove Peninsula in the Northern Territory were not capable of recognition by the common law as property or, alternatively, that no Aboriginal rights or interests in land had survived the Crown's acquisition of the radical title to the land in dispute (1971) 17 FLR, at pp 147, 198, 244, 245, 247, 252, 262, 273, 274.

The long title of the Act reads:

"An Act providing for the granting of Traditional Aboriginal Land in the Northern Territory for the benefit of Aboriginals, and for other purposes."

The Act provides for the restoration of some areas of land within the Northern Territory to Aboriginal control and gives legislative recognition to Aboriginal rights and interests in that land. The Act does not confer or authorize the Crown to confer proprietary rights upon particular Aboriginals beneficially: Land Trusts are created to hold the title to an estate in fee simple in Aboriginal land (s. 4). "Aboriginal land" is defined by s. 3(1) to mean -

"(a)

land held by Land Trust for an estate in fee simple; or

(b)

land the subject of a deed of grant held in escrow by a Land Council;"

Paragraph (a) of this definition relates to land granted pursuant to s. 12(1)(a); par. (b) relates to land granted pursuant to s. 12(1)(b). When land is granted pursuant to s. 12(1)(a), there is no estate or interest in that land outstanding in the hands of any person other than the Crown; when land is granted pursuant to s. 12(1)(b), there is such an estate or interest outstanding and the deed of grant or an estate in fee simple in held in escrow by the Land Council until all such estates and interests come to an end, whereupon the deed of grant is delivered to the Land Trust. The granting of land under the Act vests in the hands of Aboriginal Land Trusts proprietary rights which, unlike the traditional usufructuary rights which Blackburn J. held not to be property, are recognized by the common law. Those proprietary rights are carved out of the Crown's radical title. Generally speaking, the title to land which passes from the Crown under a deed of grant executed and delivered to a Land Trust under s. 12 neither impairs nor affects any estate or interest outstanding in the hands of a third person. Any such estate or interest must be acquired before a recommendation is made under s. 11(1) or must come to an end before delivery of the deed under s. 12(1)(b). A particular exception, immaterial for present purposes, was introduced by an amending Act in 1978.

The Act provides for the grant of title to two classes of Crown land. The first class consists in the parcels of land described in Sch. 1 (ss. 10 and 12). That land substantially comprises the Aboriginal reserves in the Northern Territory. The second class consists in other areas of Crown land in respect of which the Aboriginal Land Commissioner has made a recommendation to the Minister under s. 50(1)(a) that that area be granted to a Land Trust (ss. 11 and 12). The functions of the Commissioner, who is a judge of the Supreme Court of the Northern Territory (s. 53(1)), include the functions set out in s. 50(1)(a):

"(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;"

To understand the nature of these functions, it is necessary to appreciate the concept of "traditional Aboriginal owners", a term defined in s. 3(1). As that definition requires reference to "Aboriginal tradition", defined in the same sub-section, it is convenient first to refer to the definition of that term:

"'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 ..."

Aboriginal traditions, observances, customs and beliefs applied in relation to sites and areas of land are different from non-Aboriginal traditions, observances, customs and beliefs. Upon the evidence placed before him in Milirrpum, Blackburn J. commented (1971) 17 FLR, at p 167:

"As I understand it, the fundamental truth about the (Aboriginals' relationship to the land is that whatever else it is, it is a religious relationship."

The religious relationship of particular Aboriginal groups with their "country" (the term customarily used to describe the land with which there is a traditional connexion) invests the country of each group with a unique significance for that group. The significance to an Aboriginal group of their country was felicitously explained by the late Professor W.E.H. Stanner in his Boyer Lectures "After the Dreaming" delivered in 1968 and reproduced in the book of his essay, White Man Got No Dreaming (1979), p. 230:

"No English words are good enough to give a sense of the links between an Aboriginal group and its homeland. Our word 'home', warm and suggestive though it be, does not match the Aboriginal word that may mean 'camp', 'hearth', 'country', 'everlasting home', 'totem place', 'life source', 'spirit centre' and much else all in one. Our word 'land' is too spare and meagre. We can now scarcely use it except with economic overtones unless we happen to be poets. The Aboriginal would speak of 'earth' and used the word in a richly symbolic way to mean his 'shoulder' or his 'side'. I have seen an Aboriginal embrace the earth he walked on . To put our words 'home' and 'land' together into 'homeland' is a little better but not much. A different tradition leaves us tongueless and earless towards this other world of meaning and significance. When we took what we call 'land' we took what to them meant hearth, home, the source and locus of life, and everlastingness of spirit. At the same time it left each local band bereft of an essential constant that made their plan and code of living intelligible. Particular pieces of territory, each a homeland, formed part of a set of constants without which no affiliation of any person to any other person, no link in the whole network of relationships, no part of the complex structure of social groups any longer had all its co-ordinates. What I describe as 'homelessness', then, means that the Aborigines faced a kind of vertigo in living. They had no stable base of life; every personal affiliation was lamed; every group structure was put out of kilter; no social network had a point of fixture left."

This explanation renders intelligible and logical the statutory definition of "traditional Aboriginal owners", a definition which reflects the spiritual and cultural significance of land for Aboriginals. The term "traditional Aboriginal owners" is defined by s. 3(1) to mean -

"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. . ."

Owners of land under Anglo-Australian law are understood to be vested with a bundle of rights exercisable with respect to land: (cf. per Rich J. in Minister for the Army v. Dalziel (1944) 68 CLR 261 , at p 285. The term "traditional Aboriginal owners" has a very different connotation. A traditional right to forage is the only "right" included as an element in the definition, but even that right is not necessarily exclusive of the foraging rights of others. Foraging rights apart, the connexion of the group with the land does not consist in the communal holding of rights with respect to the land, but in the group's spiritual affiliations to a site on the land and the group's spiritual responsibility for the site and for the land. Aboriginal ownership is primarily a spiritual affair rather than a bundle of rights.

Traditional Aboriginal land is not used or enjoyed only by those who have primary spiritual responsibility for it. Other Aboriginals or Aboriginal groups may have a spiritual responsibility for the same land or may be entitled to exercise some usufructuary right with respect to it. Mr. Graeme J. Neate in his article "Legal Language Across Cultures: Finding the Traditional Aboriginal Owners of Land", Federal Law Review, vol. 12 (1981), p. 187, gives some examples of the difficulties encountered in determining which group among those Aboriginals who have a connexion with a tract of country fulfils the statutory criteria of traditional Aboriginal ownership. To ascertain the existence and identity of "traditional Aboriginal owners" of land it is necessary to inquire into the spiritual affiliation with sites and spiritual responsibility for sites and land, a daunting task for one who tradition, if unexpanded by experience or research, would leave him "tongueless and earless towards this other world of meaning and significance". Yet the Commissioner is directed by s. 50(1)(a) to make that inquiry, and the Act thus requires him to evaluate the spiritual affiliations and spiritual responsibility of any local descent group of Aboriginals who may claim to be traditional owners of the land in question or who may appear to have a traditional claim to that land.

However, if the Aboriginal Land Commissioner finds that "there are Aboriginals who are the traditional Aboriginal owners of the land" and recommends that land be granted in accordance with ss. 11 and 12, and if the land is granted under s. 12 and becomes Aboriginal land, any Aboriginal has or any Aboriginal group have his or their traditional rights restored - not in a form unrecognized by law, but in the form of rights conferred by statute. Subject to the proprietary rights of third parties (not being a Land Trust or an Aboriginal Council or corporation) Aboriginals are entitled to their traditional rights of entry, occupation and use with respect to Aboriginal land (s. 71). Section 71(1) provides:

"Subject to this section, an Aboriginal or a group of Aboriginals is entitled to enter upon Aboriginal land and use or occupy that land to the extent that that entry, occupation or use is in accordance with Aboriginal tradition governing the rights of that Aboriginal or group of Aboriginals with respect to that land, whether or not those rights are qualified as to place, time, circumstances, purpose, permission or any other factor."

The Act thus protects the exercise of those usufructuary rights which Aboriginal tradition either required certain groups of Aboriginals to exercise or allowed certain groups to enjoy with respect to land.

The usufructuary rights of Aboriginals in respect of Aboriginal land, once acquired, might be overridden by the granting of a lease or licence by a Land Trust (s. 19(3)), or by a surrender of that land to the Crown (s. 19(4)), but any of those events requires the approval of the traditional Aboriginal owners, and of any Aboriginal community or group that might be affected thereby (s. 19(5)(a) and (b)). The Aboriginal people connected with a tract of country were thus made competent to use their country in a non-traditional way if and when an Aboriginal consensus to do so should be established.

This brief conspectus of some of the provisions of the Act reveals the nature of the Commissioner's function. His inquiry is a step in the restoration of land to Aboriginals who have retained their Aboriginal traditions with respect to that land, and the inquiry which he makes is for the purpose of determining whether the primary criterion for the granting of Crown land other than Schedule 1 land is fulfilled. That criterion - the existence of traditional Aboriginal owners - is a test of need as much as it is a test of entitlement. The strength of the putative traditional owners' spiritual affiliation and responsibility is the measure of the extent to which the deprivation of that land would leave or has "left (the) local band bereft of an essential constant that made their plan and code of living intelligible."

As Aboriginal tradition within a local descent group is eroded or renewed with the passing of time, so the strength of the group's spiritual affiliations to sites on their land and their spiritual responsibility for those sites and for that land may wane or wax. When spiritual affiliation and spiritual responsibility are the determinants of traditional Aboriginal ownership, a finding of ownership necessarily involves an evaluation of the strength of that affiliation and responsibility. Thus it is that s. 50(3) provides, inter alia, that "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 . . . ." The Commissioner is therefore bound to find whether the local descent group's spiritual affiliation with its sites and responsibility for those sites and for its land has remained so strong or has had its strength so renewed that it is right to regard that group as traditional Aboriginal owners. It is implicit in a finding of traditional Aboriginal ownership that the local descent group would be deprived of a "stable base of life", culturally and socially, if they were not permitted their traditional access to and use of the land. A finding of traditional Aboriginal ownership determines that, as between the local descent group and the Crown, it is right that a grant be made. And so s. 50(1)(a)(ii) directs the Commissioner, where he makes a finding "that there are Aboriginals who are the traditional Aboriginal owners of the land", to recommend the grant of the fee simple in that land so as to permit them to have access to and to use that land in accordance with Aboriginal tradition and to do so as of legal right. In that way, the law recognizes the traditional rights of Aboriginals with respect to Aboriginal land - chiefly the rights of the local descent group, but the rights of other Aboriginals also.

In the present case, the Commissioner (Toohey J.) found that there are traditional Aboriginal owners of Crown land situated in the Finniss River area in the Northern Territory and he made a recommendation pursuant to s. 50(1)(a)(ii) that certain land, described in par. 267 of his Report, be granted to two Land Trusts in accordance with ss. 11 and 12. However, the applicants submit that his Honour declined and failed to take into account in making his recommendation the detriment to persons including the applicants that might result if the Land Claim were acceded to in whole or in part. The applicants' argument is based on the direction contained in s. 50(3) in the words immediately following those cited above. It is provided that the Commissioner, in making a report -

"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."

It is not said that the Commissioner failed to comment upon these matters in his Report, but that he failed to take them into account in making his recommendation. If the Commissioner were required or entitled to have regard to these matters in making his recommendation, his function would be very different from the function of determining whether there is a local descent group whose traditional attachment to the land makes it right that a grant of land be made. The factors referred to in pars. (a) to (d) of s. 50(3) are factors which are relevant to a political decision, a decision which has regard to all circumstances relevant to the question whether a grant should be made. The political decision and the administrative action required to implement it are functions reposed in the Minister by s. 11(1). That sub-section provided:

"Where -

(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 granted,

the Minister shall -

(c)

establish a Land Trust under section 4 to hold that land or that part of that land for the benefit of such Aboriginals;

(d)

where that land, or that part of that land, is, or includes, alienated Crown land, ensure that the estates and interests in that alienated Crown land of persons (other than the Crown) are acquired by the Crown by surrender or otherwise; and

(e)

after any acquisition referred to in paragraph (d) has been effected, recommend to the Governor-General that a grant of an estate in fee simple in that land or that part of that land be made to that Land Trust."

In making his decision, the Minister needs to have knowledge of the several matters referred to in pars. (a) to (d) of s. 50(3). He needs to have knowledge of other Aboriginals who would become entitled under s. 71 to access to and use of the land if a grant were made (par. (a)), of any countervailing detriment to others (par. (b)), of the effect of a grant on existing or proposed land usage (par. (c)) and of the likely cost involved in getting in estates or interests outstanding in the hands of third parties (par. (d) and see s. 11(1)(d). These matters are of concern to Aboriginals other than the local descent group, to others who wish to have access to or use of the land (e.g., miners or graziers), to the Government of the Nothern Territory and to the owners of any estate or interest which might be acquired pursuant to s. 11(1)(d). The Commissioner can, usefully and appropriately, be asked to ascertain the facts relating to these matters and to comment upon them in the light of the knowledge he has necessarily acquired and the sensitivities he has necessarily developed in the course of his duties.

But the weighing of the considerations specified in sub-s. (3) and of all other relevant considerations in deciding whether a grant should be made is appropriately a matter for a Minister, not for a judge - particularly when the question for decision is pregnant with political controversy.

Section 50(3) distinguishes between the Commissioner's approach to the strength of traditional attachment by the claimants to the land claimed and his approach to the matters referred to in pars. (a) to (d). He is directed to have regard to the former, and to comment on each of the latter. The difference in language rightly reflects the difference between the recommendation which the Commissioner is to make under s. 50(1) and the recommendation which the Minister is to make under s. 11(1). The Minister's recommendation is not a mere affirmation or rejection of the recommendation made by the Commissioner. The Minister, having regard to the Commissioner's recommendation that it would be right for the Crown to grant the land in satisfaction of the traditional owner's needs and entitlement, must decide whether other factors warrant refusing the grant recommended, and in reaching his decision the Minister is bound to have regard also to the Commissioner's comments upon the matters referred to in pars. (a) to (d) of s. 50(3).

In commenting, the Commissioner is required to have regard to the principles expressed in s. 50(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."

These principles affect the interests of a wider group of Aboriginals than the local descent group, for the tribe or linguistic group comprehends more than one local descent group, or may do so. If the Commissioner recommends a grant of land pursuant to s. 50(1), however, the grant of that land may afford to the tribe or linguistic group to which the traditional Aboriginal owners belong a place where they may live, secure in their occupancy of that place. In commenting, the Commissioner should have regard to that fact .

The direction given to the Commissioner by s. 50(4), though expressed generally, is not susceptible of application to the carrying out of a function which must be performed in a particular way irrespective of the principles. For example, the function of establishing and maintaining a register of traditional land claims (s. 50(1)(c)) could not be affected by the principles. Nor could the function of recommending a grant under s. 50(1)(a)(ii). Under that provision, the Commissioner is directed to make a recommendation "where he finds that there are Aboriginals who are the traditional Aboriginal owners of the land", so that the finding brings the recommendation in its wake irrespective of the principles set out in s. 50(4). However, the Commissioner must have regard to those principles in making his comments for the Minister's consideration.

The Commissioner performed the functions entrusted to him by s. 50 in accordance with the opinion he expressed in pars. 244 to 255 of his Report. Paragraph 253 sets out his Honour's approach to his function under s. 50:

"In my opinion the Commissioner's function is to determine questions concerning traditional ownership and the strength of attachment to the land, to make an evaluation of the evidence concerning those other matters set out in s. 50(3) and leave the resolution of competing interests to government, by such criteria as are thought to be relevant in the light of that evaluation."

His Honour correctly conceived the function which he was performing in making his recommendation, and no error appears to support the applicants' challenge to the recommendation or to the action which the Minister may take to implement it. The application for a writ of mandamus directing the Commissioner to exercise according to law the functions imposed upon him by s. 50 in relation to the Finniss River Land Claim therefore fails.

The applicants seek also a writ of prohibition directed to the Minister prohibiting him from proceeding further upon the Commissioner's recommendation for the granting of the land described in par. 267 of the Commissioner's Report, and particularly from implementing the recommendation so far as it relates to lands the subject of certain grazing licences upon the ground "that the lands the subject respectively of the said grazing licences were not at any material time unalienated Crown land within the meaning of the Act and that accordingly neither did the (Commissioner) have any jurisdiction or power to make any recommendation for the grant of the said lands under the Act nor does the (Minister) have any power or authority to make any such grant". Of course, the Minister does not have power to make a grant: that power is vested in the Governor-General (s. 12). But the substance of the applicants' objection may be applied, mutatis mutandis, to the exercise of the Minister's powers under s. 11. The substance of the objection is that a grazing licence granted pursuant to s. 107 of the Crown Lands Act 1931 (NT) is a proprietary interest in land in the nature of a profit a prendre, and is therefore "an estate or interest" in land within the meaning of that phrase in the definitions of "unalienated Crown land" in s. 3(1) of the Act. If the application had been made in respect of land which was not unalienated Crown land, so the argument ran, a condition affecting the Commissioner's jurisdiction under s. 50(1)(a) was not fulfilled.

For the reasons stated by Mason J., which I have had the advantage of reading, I am of the opinion that grazing licences granted pursuant to s. 107 of the Crown Lands Act are not proprietary interests.

I would therefore dismiss the application both for the writ of mandamus and the writ of prohibition.