Re R v Toohey; Ex parte Meneling Station Pty Ltd

158 CLR 327
44 ALR 63

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(Decision by: GIBBS CJ)

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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Decision by:
GIBBS CJ

This application for mandamus and prohibition raises for decision two important and difficult questions as to the construction of s. 50 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), as amended, ("the Act"). Section 50, so far as it is material, provides as follows:

"(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."

Section 11 of the Act deals with the consequences of a recommendation made under s. 50. At the time when the Commissioner made his report it provided, inter alia, as follows:

"(1)

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 so 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."

Section 12 empowers the Governor-General, on receipt of a recommendation under (inter alia) s. 11, to execute a deed of grant in favour of a Land Trust.

The question which arises on the application for prohibition is whether land the subject of a grazing licence granted pursuant to the Crown Lands Act 1931 (NT), as amended, is "unalienated Crown land" within the meaning of s. 50. That expression is defined by s. 3 of the Act to mean "Crown land in which no person (other than the Crown) has an estate or interest, but does not include land in a town".

I have had the advantage of reading the reasons prepared by my brother Mason, and those prepared by my brother Wilson, and agree with them that the holder of a grazing licence under the Crown Lands Act (NT) does not have an estate or interest in the land the subject of the licence, and that such land is accordingly "unalienated Crown land" within the meaning of s. 50. I could not usefully add to the reasons which they have given for reaching that conclusion.

The question which is raised by the application for mandamus is whether the Commissioner, in making a recommendation, is bound to take into account the matters mentioned in pars. (a) to (d) of s. 50(3) of the Act, upon which the Commissioner is required to comment in making his report. It seems right to conclude that the recommendations made under s. 50(1)(a)(ii) will be contained in, or at least annexed to, the report which sets forth the findings on which the recommendations are based, and which must also contain the comments on the matters mentioned in pars. (a) to (d). The Commissioner himself (Toohey J.) was of the opinion that it was not his duty to have regard to the matters mentioned in pars. (a) to (d) in considering what recommendation he should make, but that his duty was only to comment on those matters in a way that would be likely to assist the Minister in deciding whether or not to act on the recommendation.

At first sight it seems somewhat strange that when the Commissioner is required to make a report which contains comments as well as a recommendation, he should not be obliged, when making the recommendation, to take into account the matters upon which he has commented. This is the more strange when one of the matters on which comment must be made (that mentioned in par. (a)) is closely allied to one of the things to which the Commissioner must have regard (that mentioned in the opening words of sub-s. (3)). However, the section draws a clear distinction between those matters to which the Commissioner "shall have regard" and those upon which he "shall comment". 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: cf. Reg. v. Hunt; Ex parte Sean Investments Pty. Ltd. (1979) 53 ALJR 552, at p 554. When the section directs him to comment on the matters mentioned in pars. (a) to (d) of sub-s. (3), it requires him to remark upon those matters and to express his views upon them. The change in language is so significant that notwithstanding the difficulties of the section I find it impossible to reach any conclusion other than that a significant change of meaning is intended, and that the matters which form the subject of the comment are not matters to which the Commissioner is bound to have regard in making his recommendation.

Although the form of the section is curious, the result is understandable. The governing principles, expressed in sub-s. (4), are that Aboriginals who by choice live at a place on the traditional lands of their tribe 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. If he recommends that an area be granted to a Land Trust it then becomes a matter for the Minister, acting under s. 11, to decide whether or not he is satisfied that the land or any part of it should be so granted. The Minister is in no sense bound by the recommendation of the Commissioner, and in making his decision may wish to consider the matters mentioned in pars. (a) to (d), including the detrimental effect of acceding to the claims. To enable the Minister to give proper consideration to those matters, the Commissioner is required to comment, and it is to be expected that he will do so in a way that will enable the Minister to understand the issues involved and the judgment which the Commissioner has formed with regard to the matters upon which the comment is made. But the ultimate weight to be given to these matters is for the Minister to decide.

For these reasons I consider that the Commissioner did not misconceive the nature of his functions.

I would refuse the application for prohibition and mandamus.