Re R v Toohey; Ex parte Meneling Station Pty Ltd

158 CLR 327
44 ALR 63

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(Judgment by: MURPHY 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:
MURPHY J

I agree generally with Wilson J.'s conclusions and reasons.

An estate or interest within the meaning of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), as amended ("the Act"), refers to something much more substantial than the grazing licences authorized by the Crown Lands Act 1931 (NT), which are not assignable and are relatively ephemeral. It is immaterial whether in another context a grazing licence would be a profit a prendre. The ground for prohibition is not made out.

The interpretation of s. 50 of the Act is difficult. One reasonable view is that in making his recommendations, the Commissioner is not bound to, but may, have regard to matters in (a) to (d) of s. 50(3) of the Act, but whether or not he does so, he must comment on them so that the Minister, in making his decision, may have regard to them. On that interpretation, the Commissioner misdirected himself in deciding that he could not have regard to those matters, but this was harmless error because it is clear from his decision that had he decided that he was entitled but not bound to do so, he would not have had regard to them.

However, the purpose of s. 50 is to open up the possibility of a grant of land which has traditional Aboriginal ownership, not to close it. For this reason, s. 50 should be read as requiring the Commissioner to comment on the matters in (a) to (d) but to have no regard to them in making his reccomendation.

The application should be refused.