Attorney-General for the Northern Territory of Australia v The Honourable Gerard Leslie Hand

[1990] HCATrans 161

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl4 of 1990

B e t w e e n -

ATTORNEY-GENERAL FOR THE
NORTHERN TERRITORY OF

AUSTRALIA

Applicant

and

THE HONOURABLE GERARD LESLIE
HAND, MINISTER FOR ABORIGINAL

AFFAIRS

First Respondent

THE HONOURABLE HOWARD WILLIAM
OLNEY, ABORIGINAL LAND

COMMISSIONER

Second Respondent

THE NORTHERN LAND COUNCIL

Third Respondent

IN THE MATTER OF THE KIDMAN

SPRINGS/JASPER GORGE LAND CLAIM

Application for special leave

to appeal

Kidman 1 6/8/90

MASON CJ TOOHEY J MCHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 6 AUGUST 1990, AT 11.42 AM

Copyright in the High Court of Australia

SIR M. BYERS, QC: If the court pleases, I appear with my

learned friend, MR J.D. BARRETT, for the applicant.

(instructed by Freehill, Hollingdale & Page)

MS C.E. BACKHOUSE, QC: If the Court pleases, I appear with

my learned friend, MR C.J. STEVENS, for the first

.. respondent. (instructed by the Australian

Gpverrunent Solicitor)

MR K.R. HOWIE: If the Court pleases, I appear for the third

respondent. (instructed by Pigott Stinson)

MASON CJ: Sir Maurice.

SIR MAURICE:  If Your Honours please, this is an application

for special leave from a decision of the Full Court of the Federal Court. The question involved is the interpretation of the meaning and the policy behind sections 14 and 15 of the Aboriginal Land Rights

(Northern Territory) Act 1976 read with the

definition of "community purpose" in section 3.

Can I take Your Honours to those sections

immediately.

It is perhaps easiest if Your Honours were to

look to section 14(1). It says that:

Where, on the vesting in a Land Trust of

an estate in fee simple in land, the land is

being occupied or used by the Crown or, with

the licence or permission of the Crown, by an

Authority, the Crown or the Authority is

entitled to continue that occupation or use

for such period as the land is required by the

Crown or the Authority.

(2) During the period -

mentioned -

the Crown or an Authority is entitled to the

occupation or use of land, any buildings and

be the property of the Crown or the Authority. improvements on that land shall be deemed to

And then subsection (3) says the land trust can grant a lease which presumably the Crown could

accept if it wished. And then, 15(1) - - -

TOOHEY J: Just before you leave section 14, Sir Maurice, I

take it there is no argument that this is a

section 14 case?

SIR MAURICE: There is no argument.

TOOHEY J: Whether it is a section 15 case is another

matter?

Kidman 2 SIR M. BYERS, QC 6/8/90

· SIR MAURICE:  There is no argument it is a section 14 case,

Your Honour. Then the question really turns on, I

suppose, on section 15 but section 14 is important,

as we would submit, for the determination of the

proper interpretation of section 15 and the

definition. And then 15(1) says:

Where an occupation or use of Aboriginal land

to which section 14 applies is for a purpose

that is not a community purpose, the Crown

shall pay to the Land Council for the area in

which the land is situated amounts in the

nature of rent for that occupation, or use at

such rate as is fixed by the Minister having

regard to the economic value of the land.

And then it says:

use of land by the Crown for forestry

purposes -

is excluded. It is not land deemed to be within

section 15. And if Your Honours were to go back to

section 3(1), Your Honours will find a definition

of "community purpose" as meaning:

a purpose that is calculated to benefit

primarily the members of a particular

community or group -

So Your Honours will observe that there is, in that

definition, no reference to Aboriginal community or

Aboriginal group.

Your Honours, what happened was this: when

the order was made the land had been used - and
indeed it continued - by the Crown in the right of

the Northern Territory as the Victoria River

Research Station. What that did was to conduct

applied research in relation to the - I would say

growing of cattle, it is not but in relation to the

upbringing of cattle in semi-arid areas. That was

applied research and it was made available to the

local pastoralists - and no doubt others but to the
local pastoralists who were the persons primarily

benefitted by communication through correspondence

and through learned material, through

demonstrations, through the visits by the employees

of the stock inspectors to the various

agriculturalists.

MASON CJ: What do you mean by local pastoralists?

SIR MAURICE:  Pastoralists who were bringing up cattle in

the semi-arid areas. That would cover most -

MASON CJ:  Of the Northern Territory.

Kidman 3 SIR M. BYERS, QC 6/8/90

SIR MAURICE:  Most of the Northern Territory, yes, I suppose

that is right.

TOOHEY J:  It would need to on your argument, would it not,

because I thought that the case that the Attorney

was seeking to make through this application was

that the Full Court was wrong in tying the notion

of community purpose to an aggregation of persons

who had some geographical proximity to each other?

SIR MAURICE:  In confining it to that. We do not say that

it may not so extend. What we are submitting,

Your Honours, is that that is not its full extent.

So that it could apply to a community. It may be

necessarily amorphous, defined by reference to the

land that is granted to the Aboriginals, the

traditional owners, but it extends beyond that and

we submit that what this is about, what the section

is about, in particular the words "that is not a

community purpose" in section 15(1), is to say,

"You have a use of land before the land is vested

in the land trust", so it is being used by the

Crown before there is any question of being vested

in the land trust because section 14 says:

Where, on the vesting in a Land Trust - So at that moment there must be a use of the land

by the Crown and by hypothesis, therefore, it may

extend to people to benefitting a community or

group beyond those who resort to that land. It

may, for example, be a hospital for tubercular

soldiers and so on. One can imagine particular

groups which will be benefitted by the use of land

which is Aboriginal land. It may be some other

form of pastoral industry in the Northern

Territory: goat farmers, if they have such, wheat

growers and so on.

TOOHEY J: They do not have those.

SIR MAURICE:  I bow to Your Honour's superior knowledge.

Your Honours, so what section 15 is saying, "Well,

if the Crown wishes to continue that use, which is

primarily to benefit a particular community, that

is all, so it may secondarily benefit the whole of

the community", is to say that "The consolidated

revenue is not to be charged with the rental."

That would otherwise be the case.

It is clear that one purpose of this Act is to

give title to the traditional owners. That is obviously a purpose. Then they would get rent

except where you have the land used for a

particular community, to benefit a particular

community.

Kidman 4 SIR M. BYERS, QC 6/8/90

TOOHEY J: That is your problem, is it not, Sir Maurice,

trying to give some meaning to the adjective

"particular". Clearly, if the purpose is for the

benefit of the entire community of the Northern

Territory it would fall outside community purpose?

SIR MAURICE:  I think that would be so, with great respect,

Your Honour.

TOOHEY J: But, particularity, the Full Court seemed to be

saying, is something that is to be assessed by

reference, to some extent at any rate, by

geographical situation. You look at, as it were,

the juxtaposition of a range of people in relation
to each other; you would seek to give "particular"

some wider meaning than that, would you?

SIR MAURICE:  Yes, Your Honour. We just say it means for a

particular - it is rather analogous to a section of

the community under purpose trusts. When one says

a "particular community or group" all one is doing,

really, is saying either it is not for the entire

community - which is what Your Honour Mr

Justice Toohey put to me - but it is primarily for

some more limited group.

MASON CJ: That class of the community?

TOOHEY J: They might be aged persons, for instance, who

could come from anywhere in the Northern Territory?

SIR MAURICE: That is right. They could be lepers - whether

they still have a leperosarium or not I am not

quite sure, Your Honour - but they could be lepers,

they could be returned soldiers with tuberculousis

or they could be Aborigines having no relationship

to this particular area of land, for example.

McHUGH J: But the term "Aboriginal community or group" is

used a number of times through the Act and as the

Full Court said it is used in a context appropriate

to a cohesive identifiable body of persons who have

an association with particular land.

SIR MAURICE: It was not used here.

McHUGH J:  I know, but_apart from the adjective "Aboriginal"

it is the same phrase "community or group".

SIR MAURICE:  We would submit not, Your Honour. I beg

Your Honour's pardon, "community or group" is but

then they have taken out "Aboriginal"; they could

have left it in and they said "particular".	So
that means specific and we would not wish to

dissent from what Your Honour Mr Justice Toohey put

to us that the distinction means "class", something

less than the entire community, a specific

Kidman 5 SIR M. BYERS, QC 6/8/90

community or group. Your Honour, what the

legislature has done, in our respectful submission,

is to say, "Well, where you have two groups

advantaged, for example, the Aboriginal group
advantaged by reason of the grant of title, and

another group advantaged by reason of the Crown

occupation or use, then the Act stands neutral as

between those two groups except so far as title is

concerned. In other words, the use of the land for

the particular group is not to be burdened by the

payment of rent to the other particular group, to

the Aboriginal, but they get the title. But they

do not get payment in the nature of rent having

regard to the economic value of the land which

could be a very substantial - - -

McHUGH J: But that analysis tends to tell against the

notion that a particular community or group is

equivalent to a section of the public which is what

I understood you were putting when you refer to the

purpose trust.

SIR MAURICE:  We would submit not, Your Honour. Just as you

can have them classed - it is a class of the

community, one would say. They can be joined by a

calling, as this Court said in the Thompson Masonic

case which I can refer Your Honours to if

necessary, but you may have a section of the

community joined by a calling; you may have them

joined by religion and so on and you may have them

joined by, in this case, an occupation. So,

Your Honours, we would say, the very fact that the

word "Aboriginal" appears elsewhere indicates that

it was not intended to appear in the definition.

If it was intended to appear in the definition,

then they would put it in the definition.

TOOHEY J: But no one has ever suggested that, have they,

Sir Maurice? Has anyone ever suggested that

community purpose in section 15 is qualified by the

adjective "Aboriginal"?

SIR MAURICE: Well, the Full Court came pretty close to it,

Your Honour, because what they said was, "You will

find community or group used in association with

the word 'Aboriginal'". I think Your Honour

pointed that out to me and I can refer Your Honours

to the page - they said that at page 169. If

Your Honours go to the top of the page,

Their Honours say:

Counsel for the Northern Land Council

points out that, in a number of places, the

Act uses the term "Aboriginal community or group" -

and then there is a reference to the section:

Kidman 6 SIR M. BYERS, QC 6/8/90

In each of these cases this term is used in a

context appropriate to a cohesive,
identifiable body of persons who are

associated with particular land -

well, in most of them:

In some of these cases the concept is of an incorporated Aboriginal community or group; others contemplate notice being given to the

community or group. It seems to us to be

reasonable to construe the words in the

definition of "community purpose" in the same

sense

TOOHEY J: Yes, but that is only to fasten on to the notion

of:

cohesive, identifiable body of persons -

it has nothing to do with the existence or non-

existence of the term "Aboriginal" does it? The

court is simply saying, if you look at the sections

in which Aboriginal community or group are found,

the term was:

appropriate to cohesive, identifiable body

of persons.

So when you find community or group with

Aboriginal, obviously that qualification disappears but you still have to find something that answers the description of:

cohesive, identifiable body of persons.

SIR MAURICE:	Your Honour, they go beyond that.
TOOHEY J:	I am not suggesting that is right or otherwise but that is the only sense in which the definition
of "Aboriginal community or group" is thought to have served some purpose.

SIR MAURICE:	Yes, Your Honour, but they say:
a cohesive, identifiable body of persons who
are associated with particular land -

that is what they are saying. And then, they go on

and say in some cases it refers to incorporated and

then:

It seems to us to be reasonable to construe

the words in the definition of "community

purpose" in the same sense -

Kidman 7 SIR M. BYERS, QC 6/8/90

that is as people associated with the particular

block of land, a "cohesive, identifiable body": as when those same words are used in the Act

to refer to an Aboriginal community or group.

The reason, -

now, this is with great respect, Your Honours, pure

s·peculation but -

no doubt, why the word "Aboriginal" does not

appear in the definition contained in

section 3 is that the particular community or

group which benefits from a particular purpose

may be a racially mixed group.

So, they are saying, really it does have an

Aboriginal connotation or aspect:

To adopt some examples ..... if Aboriginal land

is occupied or used for a school, a clinic, a

police station, an airstrip or an electricity

generator, that use is intended to benefit the

whole of the local community, Aboriginal and

non-Aboriginal alike. It would not be

accurate to describe a racially mixed

community as an "Aboriginal community or

group"; yet it would be reasonable to deny

rental, in relation to such a use, to the

relevant Land Trust. Ex hypothesi the land is

Aboriginal land, that is land of which

particular Aboriginal claimants have

demonstrated a traditional ownership. So the

local community is likely to contain a good

number of Aboriginals. It might have been

thought to be unfair to require the Northern

Territory Government, having provided a

facility to that local community, also to pay

rent for the use and occupation of the site of

the facility.

So that is at the essence of what Their Honours are

talking about. Now, what Their Honours are talking

about is, in substance, Aboriginal group or

community and they arrive at that by saying, well
it gets its colour, its meaning, from the words
appearing elsewhere, "Aboriginal community or
group" and then they say, "Oh well, the reason why

you don't find Aboriginal there" - as you do not -

"is because, as to the land claimed, there may be

other people in the community". You may have a

white policeman or matters of that sort.

Your Honours, we submit that that is to read

down the natural meaning and that what this is

concerned about primarily is land used for the

Kidman 8 SIR M. BYERS, QC 6/8/90

benefit of a class of the community; it is

analogous to a purpose trust.

McHUGH J:	I appreciate the points you make about how the court interpret it, but let us look at the actual
decision, the correctness of the decision. You
throw all the weight of your argument on the basis
that this is for the benefit of the pastoralists
but why is not the correct view of it that this station was for the benefit of the cattle industry which was for the benefit of the Norther Territory
community as a whole?

SIR MAURICE: Well, what is the difference?

McHUGH J: Well, if it is for the benefit of the cattle

industry, it would not be for the benefit of a

particular community or group, would it?

SIR MAURICE:  Of course it is. When one talks about cattle

industry, one is talking about pastoralists. It is

rather like saying, wheat industry, you are talking

about wheat growers or goat growing industry, you

are talking about people who farm goats, no doubt,

for their wool and for milk and so on. But, that

is just a bit of semantics and, really, what

Their Honours had to do was to say, "Well, is this

a use by the Crown of land within the definition?"

and they had, therefore, to say, "Well, is it for

the benefit of a group?". They cannot go out of it

by saying, "It's described in the evidence as for

the cattle industry", they have to follow the next

step and say "Well, is that, then, a use for a

particular group?",otherwise, one never gets to the

crucial question. For example, in this case, if

one thinks of the Commissioner, he said, "Well, I'm

not going to go to the evidence in detail; I don't

have to consider that". Well, of course, obviously

he did have to consider it because he had to decide

on detriment and if it was used for a particular

community or group, then the detriment to the

Northern Territory would be· less than if it were

not used for a particular community or group, so he
just had to decide it.	No doubt, it is true to say

that his decision would not be final on that, a

matter which he had some regard to, but how that

bears on any question is, with great respect,

impossible to discover. The fact that his decision

is final only means he is not exercising judicial

power. Now, obviously, he is not exercising

judicial power but he has still got to report on

detriment, detriment to the Territory.

TOOHEY J: Sir Maurice, do you know why "forestry purposes"

was singled out in section 15(2)?

Kidman 9 SIR M. BYERS, QC 6/8/90

SIR MAURICE:  We have not been able to find out,

Your Honour.

TOOHEY J: Because on one view, it is a purpose that might

be thought not to be a community purpose without

the need to specify it in the sense that it really

. seems to relate to an activity on the land and one

might say, "Well, if forestry, why not, perhaps, a

whole range of things?", but I just wondered if

there was any reason known for the singling out of

that particular purpose in the Act.

SIR MAURICE:	Not that we are aware of and we have regard to the report but there is nothing really - that very
exclusion appears but the reason for it certainly
is not clear.

McHUGH J: It is really illuminating that purpose from the

Act.

SIR MAURICE:	And only that purpose.
MCHUGH J: Yes.
SIR MAURICE:	So it rather suggests, Your Honour, that there

could be other general purposes, which you think
are what forestry purposes are for, they could be

for the individual, they could be for large

sections of the community; indeed, on one view,

they could be for the territorial community and

maybe that is the reason.

McHUGH J: Well, the definition accepts that because it

talks about a purpose that is primarily for the

benefit of - - -

SIR MAURICE:	Yes, of a particular community.
Mc HUGH J:	Yes .

SIR MAURICE: That is right, Your Honour, and so the

secondary, one can have benefits from that primary

What we submit, Your Honour, is that there is

benefit flowing to the community as a whole.

a departure from the policy that is underlying this

Act which was to preserve, I suppose, in a sense,

the consolidated fund from charges where money was

being used to benefit a particular group or

community and then the legislature said, "Well, in

such a case, no rent". Now, Your Honours, this

decision raises a number of difficulties for the

Northern Territory because one has all the

schedule 1 land - that is the land, as Your Honour

Mr Justice Toohey and Your Honours will remember,

that went automatically to the Aboriginals in which

we are not in a position at the moment to indicate

Kidman 10 SIR M. BYERS, QC 6/8/90

to Your Honour the sorts of things that could fall

in or out of the definition but in relation to land

which has been the subject of reports by

commissioners, we have endeavoured to indicate in

two schedules - some of these are decisions of

which Your Honour Mr Justice Toohey, as a

commissioner -

TOOHEY J: Yes, I was a bit worried about that, Sir Maurice.

SIR MAURICE:  We are not, Your Honour, and I am sure there

is no conceivable reason why Your Honour should.

When one thinks of aerodists, that is survey marks,

then there is a wildlife sanctuary. Now,

Your Honour, that may or may not be for the benefit

of a particular group or section of the community -

class.

TOOHEY J:  I am not sure what you are saying about this

schedule in so far as various reports have

identified particular occupation or use. Are you

saying that the schedule also indicates whether

section 15 was said to have some application?

SIR MAURICE:	No, Your Honour, what we intend to say in relation to that - at page 193(d) of the appeal
book:

There are a number of claims which were heard

by Mr Justice Toohey, Mr Justice Kearney and
Mr Justice Maurice since 1977 in which

Their Honours recommended that part or all of the land be subject of a grant. In virtually all of these claims the Northern Territory was

and is still using or occupying part of the

subject land in a manner which on the

interpretation of the Full Court ..... would not

constitute a "community purpose".

TOOHEY J: But all that the reports do presumably is mark

out certain areas as coming within section 14, but

say nothing as to whether or not they come within

section 15.

SIR MAURICE:  I think that is right, Your Honour.

MASON CJ: But, you are using it, are you not, to say that

the matter is very important.

SIR MAURICE:  Yes, Your Honour. I am not saying that any of

the commissioners adverted to this. All I am

saying is that, these are the problems that arise

and one can also think of a particular

illustration, which I think has recently arisen, is

Telecom.	We have - I do not want my learned
friend ..•.. for the Commonwealth.	I have set out

other gravel pits or watering points and,

Kidman 11 SIR M. BYERS, QC 6/8/90

Your Honours, bores, where there are very large

sections of the substantial areas set aside for the

bores, so that - some of them are 25 x 25, some of

them 250 x 250, and so on, so there are substantial

areas.

Your Honour, in paragraph (e), we say that:

The Land Rights Act has been administered by

the - - -

MASON CJ:  Sir Maurice, we need not trouble you further. will hear what the respondents have to say at this
stage. We

SIR MAURICE: If Your Honours please.

MASON CJ: Yes, Ms Backhouse?

MS BACKHOUSE: Firstly, may I deal just briefly,

Your Honour, with the schedule Sir Maurice has just

handed to you. I heard what Your Honour said but

his use of it is just to show the importance of the

matter for the purposes of this application.

MASON CJ: Yes.

MS BACKHOUSE:  We, firstly say, that on the face of it, it

is not apparent, the conclusion which it seeks to

draw. I think His Honour Mr Justice Toohey has

just said that the schedule, itself, is saying that

those are matters where the particular commissioner

has identified the particular - - -

MASON CJ: Yes, all he is saying is that some such question would arise in relation to activities and lands of

that kind.

MS BACKHOUSE:  Yes, if Your Honour pleases. And, we say

that highlights, as it were, that how this matter

arises - it always arises, ~s we understand it, on

the question of detriment - and, in particular, in

this case, that is how it did arise, that the

Commissioner, Mr Justice Olney, was looking at the use and occupation from the point of view of - or, the grant, I should say - whether the grant would

be prejudicial to the Northern Territory

Government.

McHUGH J: But, what it does show, does it not, is that if

you interpret the phrase in the way that the Full

Court interpreted it at page 169, namely, that

people have got to be:

associated with particular land -

Kidman 12 6/8/90

then many, if not all or a great majority of these

uses would be ones in which rent would have to be

paid?

MS BACKHOUSE: Well, Your Honour, we would submit

respectfully, that does not necessarily apply.

. That is what I was going to hope to say a little

more about this question of detriment; it is in the

looking of that issue that the factual situation

becomes apparent. As in this case, you had a

research station which occupied the whole of the
relevant portion. So, in this instance, it was the

whole of the land that was going to have the

continued use under section 14 of the Act, whereas

in the majority of these instances which are in the
schedule, we would be submitting that, by way of

example, the survey marks, that would only,
presumably, affect a very small proportion of the

relevant land that as the subject of the claim. We

would say, similarly, with regard to, say, an
electricity generator or, for that matter, even the
transmission facilities, they would only occupy a
very small portion and this was one of the matters
which was, again, dealt with in this particular
instance, where His Honour dealt with the issues -

I think this particular issue· was dealt with by

His Honour at page 110 at 13.1.3 of the appeal book

- that is where the Commissioner dealt with this

matter, particularly, he says at about point 4 on

that page: 

The issues which are in contention are the extent of the actual occupation and use of NTP 824, the precise nature of that occupation

and. use (including the question of whether or

not that occupation or use is for a community

purpose), and whether such occupation and use,

whilst it continues, is exclusive of any other

occupation or use of the land by the

beneficiaries of the land trust.

So, we use that as an illustration. That is what,

we would submit, we are entitled to say has been

done by every commissioner when he has been looking

at a particular claim; when he has been, in other

words, performing his function. He would look at

those types of issues and that is where this

question of the type of use and occupation and how

much of the land and, for those reasons, we would

say that it is very definitely a matter which in

each case depends on its own facts, so that it is a

factual situation. Here, you have got occupation

of the whole of this particular area, that is

NTP 824, and in that circumstance we would say that

it is not appropriate to make a comparison with,

say, an area which has been identified for survey

marks.

Kidman 13 6/8/90

McHUGH J: But, it does throw up the problem, does it not,

because on the interpretation which appears at
page 169, it would have to be shown in the facts of

this case that this station was being used for the

benefit of those who are actually on this land?

MS BACKHOUSE:	If there was a rental not to be payable, yes, but we would, if I may just take Your Honours to
page 166 of the appeal book where it deals with the
submission to the Commissioner by the department
where it sets out the object of the research
programme in these terms. There - unless Your Honours wish me to, I will not read it - it
sets out what was the object of the research
carried on at this particular research station and it is on that factual footing that the Full Court, in our submission, came to the view that it was a
purpose which was for the cattle industry as a
whole, for the bettering of the - more particularly, for the wider use for the whole of the cattle industry and the whole of the Northern
Territory.

MASON CJ: But that is another ground for the decision. It

seems that it is the ground that is dealt with at

pages 167 to 169 that is the principal ground for

the Court's decision.

MS BACKHOUSE:  Yes, Their Honours, at the top of page 167, having said that they - -

MASON CJ: And it is in the context of that ground that

Sir Maurice is referring to the matters in the

schedule.

MS BACKHOUSE:  In relation to the schedule, we would just

seek to reiterate that, firstly, the schedule is

not really as helpful as one may have hoped it to

be if it was to really manifest the proposition

that Mr Joyce puts in his affidavit and, secondly,

that assuming that any of these claims have,

indeed, been concluded in the sense that they have,

in fact, been the subject of a recommendation by

the Minister for Aboriginal Affairs to the

Governor-General, well they are, in fact, concluded

matters and cannot arise again. And, in

particular, I say that because of the introduction

into the Act of section 50(2B) which came into

operation on 5 June 1987 so that if a particular

matter has been disposed of, unless - there is, I

think, there is a qualification, I should hasten to

add - the claim is - - -

TOOHEY J: Excuse, Ms Backhouse, where is that section?

MS BACKHOUSE:  Your Honour, it is section 50(2B) - it

appears at page 72 of my copy of the Act. But,

Kidman 14 6/8/90

there is a qualification, the application can be brought again if there is a different basis put.

That is referred to in (d).

TOOHEY J: But, does section 14 not have operation in the

case of schedule 1 land?

MS BACKHOUSE:  I understand it does, Your Honour.

TOOHEY J: So, it would apply to all that earlier of land

referred to in schedule l?

MS BACKHOUSE: Yes, I take Your Honour's point. It would

apply to all schedule 1 land, I accept that.

MASON CJ:  Can we move away from the schedule? What are

your grounds for refusing special leave?

MS BACKHOUSE:  If Your Honour please, we submit that it is a

matter which was determined and which, we say, was

rightly determined on the basis of its own

particular facts; that on the evidence that was

before the Commissioner and which was before the by the Full Court of the Federal Court that the
particular operation that was being carried on at

the research station was not one primarily for the

benefit of a particular group or community and, we

would submit, that no error has been really

demonstrated in relation to that particular finding

or judgment of the Full Court of the Federal Court.

MASON CJ: So, you are relying, really, on the first ground

advanced by the court rather than the second

ground, that is the ground at 166.

MS BACKHOUSE:  Yes, 166. Well, we rely on both, but I would

rely primarily on the first ground but in relation

to the second ground, I think that I have put all

the matters that I can appropriately put. I am

reminded, Your Honour, of the matters that appear

on 168 which is the statutory construction matters

which were dealt with by the Full Court of the

Federal Court and which, we would submit, having

regard to the analysis there, that the part of the

section has been properly construed by the Full

Court of the Federal Court and that, again, no

error has been demonstrated in the analysis by the

Full Court and its consequent construction of the

section, namely, section 15, of course, in

conjunction with the definition section, section 3.

MASON CJ:  I can see the force of the argument you put and

the force behind the reasoning in the court below,

but it is a little difficult to conclude, is it

not, that it is definitely right? After all, it is

the kind of question that generally is an arguable

Kidman 15 6/8/90

question. That is the difficulty, I think, with

the second ground advanced by the court in coming

to the conclusion that it is clearly right or not

attended with sufficient doubt to warrant the grant

of special leave.

MS BACKHOUSE:  Yes, well with respect, I see what

Your Honour means in that regard. Just one other

aspect of that that it does, I think, deserve

mentioning is, I think, the basis on which

Sir Maurice was putting this argument about the

group was that it was for the pastoralists in the

semi-arid tropical areas. Well, of course, in the

evidence this, of course, goes beyond the borders

of the Northern Territory. This was an exercise

which was being carried out, as I recall the

evidence, for land which went into Western

Australia and could even have involved South

Australia too. Certainly, Your Honour, if I could

try and find that it did go beyond - - -

MASON CJ: But presumably it would be primarily for the

development of the cattle industry in the Northern
Territory even though it would have incidental

benefits for those who are pastoralists outside the

Territory?

MS BACKHOUSE:  Yes.

TOOHEY J: And, you may have a hospital, for instance,

fairly close to the West Australian border which
is, perhaps, used for somebody who is injured in an

accident just over the border, well it would be

hard to .see that that sort of situation would, of

itself, disqualify the purpose as a community

purpose if it otherwise answered it.

MS BACKHOUSE:  Yes, I would not argue against that,

Your Honour.

MASON CJ: Thank you, Ms Backhouse. Mr Howie?

MR HOWIE:  If the Court pleases, it is my submission that

the schedule that has been tendered demonstrates,

really, the reverse of what Sir Maurice seeks to

draw from it and that is this: that although there

have been many instances of section 14 use found,

this is the first occasion on which there has been

a dispute that has arisen and I ask the Court to

bear in mind that this Act commenced to operate on there have now been 35 reports of commissioners and until this particular instance there has not been

an instance of dispute as to whether or not a

section 14 use has been for the benefit of a

particular community or group.

Kidman 16 6/8/90

TOOHEY J: 

But that may simply be because the question of

the payment of an economic rent, or rent having
regard to the economic value of the land, was not

thought to arise or, perhaps, was not thought to

fall within the notion of detriment.

MR HOWIE.: - I think the reason, Your Honour, rather than

being, that is, that because in almost all

instances it has been obvious as to whether or not

a particular occupation or use has been for the

benefit of a particular community and if

Your Honours look at the schedule and, perhaps,

Justice Toohey is most at advantage here, it can be

seen that the places that are listed there - and I

draw attention particularly to Daruragu station

which is referred to twice although there is only

one report - to Mount Allan, the next page, to Ti
Tree, Chilla Well, the third page, to McLaren Creek

and Robinson River, are all clearly identifiable

particular communities or groups where there is no

difficulty saying that the health clinic there, or

the powerhouse or the school or the police station

or the aerodrome or any of the other facilities,

are there to benefit clearly identifiable
aggregations of people within the terms of the Full

Court's definition.

Similarly, with a number of the other places,

such as, Timber Creek, Jane - which affects the

town of Katherine - Warurnungu - which affects the

town of Tennant Creek, Mataranka - which affects

the town of Mataranka, there are clearly
identifiable aggregations of people which are

proximate to each other in terms of their geography and so it has not been an issue that has previously

arisen because it has been clear - if I could just

take up Justice McHugh's point when you have said to my learned friend that in these cases that are listed here, that on Sir Maurice's argument, in the

great majority of them rent would have to be paid,

the thrust of my submission is, the reverse is

true. It has been clear that in the great majority of them they have been for particular communities

or groups and it has not been necessary to even

think about rent having to be paid and the Full

Court has not been saying, as Your Honour has said,

that it is necessary for the people to live on the

land. That is not the definition that has been

given at page 168. The Full Court has been talking

of an aggregation - - -

McHUGH J: That is true, about page 168 but at page 169,

they talk about:

persons who are associated with particular

land.

Kidman 17 6/8/90

MR HOWIE:  They do there, Your Honour, but they are there

speaking of Aboriginal communities or groups and

they are using that simply to buttress the

conclusion that they have reached on page 168 and

that is that the - - -

McHUGH J: That passage on page 168, I think, is probably

the strongest passage in your favour in this point.

MR HOWIE:  On page 168 or 169?

McHUGH J: On page 168, yes, in your favour.

MR HOWIE:	And the page 169 passage is just a reinforcement of the page 168 passage, that is, that it is
necessary for there to be - in their view it
supports the concept of people living in proximity
to each other. They are not saying they have to be
living on the land under claim but that they are in
a geographic area.

McHUGH J: If the word "community" was there on its own, I

think what the Full Court has said would be very

persuasive, but the legislature has also used the

word "group". Why should you regard "group" as

intended to refer to an aggregation of identifiable

people living in proximity to each other as opposed

to what Sir Maurice said is just a section of the

community?

MR HOWIE:  Your Honour, the answer to that is to seek to

discern the purpose and thrust of the Land Rights

Act and that what is intended is that it be

communities or groups that are in the region of the

land that have some geographical proximity to the

land and are in that sense affected by it.

The reality is, Your Honour, that there are no

hospitals for tuberculosis soldiers or homeless

widows or motherless children on this land.	We are
dealing about unalienated Crown land in the

Northern Territory in very remote areas and what

has been raised by Sir Maurice is, in my respectful

submission, utterly hypothetical in terms of the

occupations or uses. The occupations or uses that

you, in fact, have are of the kind that are listed

in the schedule and when they occur, the fact that

some 35 reports have passed in 13 and a half years

and the issue has not yet arisen, is evidence of

the fact that it, in all cases, has been clear as

to whether there has been a particular community or

group that has been the beneficiary. When it is

not clear, then it requires the examination of the

particular facts and history relating to the group

that has been advanced and in this case that has

been examined closely by Mr Justice Olney and by

the Full Court and they have been in agreement that

Kidman 18 6/8/90

the proposed beneficiary in this case has been the cattle industry in the Northern Territory and both

have been of the view that that is too wide and too

fluid including, as it does, people who are not

only resident in the breadth of the Territory, but

resident in Sydney and Perth and in Brunei and all

sorts of other places, that that is far too wide a

category to be confined within the definition in

section 3 of the Act.

The only matter that I wish to raise,

Your Honour, was in answer to the question of

Justice Toohey concerning the forestry industry.

You may recall that that is something that arises

in Mr Justice Woodward's royal commission report in

which, if I can just read this to you briefly, he

says in paragraph 412 that:

Since 1961 it has been government policy to

investigate and develop forest resources on

Aboriginal reserves -

and he then proceeds to outline the extent of that

and it would appear that the policy of the Act has

been that, although there have been extensive

forest reserves, I think, principally in Arnhem

Land, developed and that they may continue to be

occupied pursuant to section 14, it remains the intention and purpose of the Act that the Crown

would pay rental in respect of it.	If the Court
pleases.

MASON CJ: Thank you, Mr Howie. Sir Maurice?

SIR MAURICE:  Your Honour, it is, with great respect to my

learned friend Mr Howie, quite incorrect to say

that Mr Justice Olney, or for that matter the Full

Federal Court, examined this question. What

Mr Justice Olney says at page 113, paragraph 13.2.6

is:

A substantial amount of evidence was called to

establish the nature and importance of the

past, present and planned research at VRRS.

It is unnecessary to refer to the evidence in
detail; rather it is sufficient to say that

VRRS is engaged in activities of a research

and experimental nature aimed at improving

husbandry •.... ! am satisfied that VRRS plays a

useful part in the development of the cattle

industry in the Northern Territory.

Then, he goes over, at page 117, still not

considering the evidence at all, and says at

paragraph 13.2.11:

Whether or not the present use of -

Kidman 19 SIR M. BYERS, QC 6/8/90

that is the area where it is situated -

is a "community purpose" within the meaning -

of section 3 -

is a question which falls outside the

functions of the Commissioner to finally

determine. By way of comment, however, and

without intending to usurp the proper function

of those who may hereafter be obliged to make

some binding determination of the issue, it

seems to me that "the cattle industry" does

not constitute a particular community or group

and if that is so, then the present use -

so what he does is just pick up a phrase and then

say, without examining the evidence which is before

him, that that is not a purpose within the

definition. Now, Your Honour, we say that is quite

wrong. What he was bound to do was to decide what

the detriment was to the Northern Territory and to do that he had to decide this question, whether it

was obliged to pay money.

TOOHEY J: But Sir Maurice, you do not say any longer, I

gather, that it is the Commissioner's duty to fix
the rent. That was a matter argued before the Full

Court but does not appear to have been pursued in your application to this Court.

SIR MAURICE:	No, well that may not be a question of general public importance, Your Honour. That is really why
I have not touched on it but what is a question, we
submit, is the question the true interpretation of sections 14, 15 and the definition of "community
purpose".
MASON CJ:	Sir Maurice, what do you say to the point that was raised with Mr Howie, that if the definition
had stopped short of the inclusion of the word
"group", that would have been the end of your
argument?

SIR MAURICE: Well, I would say that is not correct.

Your Honour, when one is thinking about what up are set out and I can refer Your Honour to some
"community" is, if you look at it as a matter of

others - judicial definitions - the dictionary

definitions, Your Honour, are the Oxford English

Dictionary, extend to people who carry on a common

calling. Indeed, that is apparent, I think, from

what Their Honours set out but thereafter, with

great respect to them, neglect in the appeal book.

But, if Your Honours look to the definition of

"community", Your Honours will see it refers to

Kidman 20 SIR M. BYERS, QC 6/8/90

things such as the mercantile community - it is set

out in the appeal book at page 168 - it begins at

page 167. It starts off, paragraph 6, under the

heading:

"A body of individuals":

6.      The body of those having common or equal

rights or rank, as distinguished from the

privileged classes; the body of commons; the

commonalty.

7. A body of people organized into a

political, municipal, or social unity:

a. A state or commonwealth.

b. A body of men living in the same locality.

c. Often applied to those members of a civil

community, who have certain circumstances of

nativity, religion, or pursuit, common to

them, but not shared by those among whom they

live; as the British or Chinese community in a

foreign city, the mercantile community

everywhere, the Roman Catholic community in a

Protestant city, etc., the Jewish community -

and so on. It is clear that the calling is

relevant to define a "community" as it was when the

Court was considering and quoted with approval what

Mr Justice Lowe said in Thompson v Federal

Commissioner of Taxation, 102 CLR 323, where they

were tal~ing about a section of the public, and

that is an analogous expression:

"It may not be easy or even possible to

enumerate in advance the differentiae of a 'section of the public' within this rule -

it is just below the first full paragraph,

Your Honours - Your Honours will see italicized

Mr Justice Lowe: 

Having regard to the composition -

but I illustrate along what lines a conclusion may

be arrived at -

of the public, certain large groups may

readily be recognized, the members of which

have a common calling or adhere to a

particular faith or reside in a particular

geographical area. There is no bar which

admits some members of the public to those

groups and rejects others -

Kidman 21 SIR M. BYERS, QC 6/8/90

and he is talking, of course, about membership of a

club. Now, to like effect, is Mr Justice Menzies

at page 328 who quotes, again with approval, what

Mr Justice Lowe says, so, Your Honour, as a matter

of English "community" extends to people having a

common calling and, of course, so does "group".

MASON CJ: But does the word "particular" that governs it?

SIR MAURICE:  Yes, Your Honour. So, one then asks, what

function does it perform and, Your Honour, one

would be inclined to think that it distinguishes

between the entire community and a specific

community so one is saying a particular community.

For example, one could say of the entire Northern

Territory as the South Australian Supreme Court

said, that the entire population of South Australia

is a community, or the farmers in Eyre Peninsula is

a community, and so on. But it would seem here,

Your Honour, that the selection of the word

"particular" is either to identify a smaller class
or identify a large class but joined by some common

link so that one can say this is a class, a class

of the public if you wish, or a community that is a

class or section of the community.

Now, Your Honours, we submit that is what the

purpose of the word "particular" is designed to

achieve and it is not designed to have a limited

application when one looks to the purpose of

section 15, in our respectful submission, which is

designed to save use and occupation, primarily
designed to benefit a particular community from a

rental imposed. So that, what it does, I suppose,

in the long run is say the consolidated fund is to

be protected where you get a grant of land to

traditional claimants, if it is then being used to

advantage a particular section of the community.

Your Honour, those are the sort of considerations which we submit require consideration in this case

and which the Full Court disregarded.

So, we would submit, Your Honour, this is a

case in which Your Honours would grant special
leave. As to the matters in the schedule, all I
wish to say is this: if you have a transmission

line, for example, running across an area and it is

designed to service the community of Tennant Creek

then, Your Honour, that is obviously a use of the

land for a particular community and we would

submit, Your Honour, indeed that is the fact and

one has had in various reports differing views by

commissioners as to whether land with repeater

stations on them is a community.

Kidman 22 SIR M. BYERS, QC 6/8/90

MASON CJ: Thank you, Sir Maurice. There will be a grant of

special leave in this case.

AT 12.46 PM THE MATTER WAS ADJOURNED SINE DIE

Kidman 23 6/8/90