Attorney-General for the Northern Territory of Australia v The Honourable Gerard Leslie Hand, Minister for Aboriginal Affairs

[1991] HCATrans 59

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S94 of 1990

B e t w e e n -

ATTORNEY-GENERAL FOR THE
NORTHERN TERRITORY OF

AUSTRALIA

Appellant

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

MASON CJ
DEANE J

TOOHEY J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 6 MARCH 1991, AT 10.16 AM

Copyright in the High Court of Australia

Kidman(2) 1 6/3/91

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

learned friend, MR V.B. HUGHSTON, for the

appellant. (instructed by Freehill Hollingdale &

Page)

MS C.E. BACKHOUSE, QC:  May it please the Court, I appear

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

first and second respondents. (instructed by the

Australian Government Solicitor)

MR A.R. CASTAN, QC:  May it please the Court, I appear with

my learned friend, MR K.R. HOWIE, for the

third respondent. (instructed by Pigott Stinson)

MASON CJ:  Sir Maurice? We have your outline of submissions

on the matter.

SIR MAURICE:  They are somewhat lengthy, Your Honour, for

which I must ask Your Honour's pardon. I must have

been carried away, but if I could just take

Your Honours to the submissions and then to the contentions without worrying about the intermediate matter.

DEANE J:	I had assumed somebody else had done them.
SIR MAURICE:	That is a great compliment, Your Honour. What

we say, of course, is that the words "community or

group" in the definition, that is "a purpose that

is calculated to benefit primarily the members of a

particular community or group", while they bear

their ordinary grammatical meaning so that, no

doubt, they include groups resident in a locality

but they are not confined to that and they extend

to groups or communities which are identified by a

common affliction, for example, blindness, leprosy,

tuberculosis, common pursuit, pastoral community,

mercantile community or possession of a common

race, the Chinese community.

And the first proposition, Your Honour, is

whether an occupation or use of Aboriginal land is

for a purpose that is not a community purpose
within the meaning of section 15 of the Land Rights
Act requires an examination of the uses to which
the land was put or the nature of the occupation by
the Crown or authority, as the case may be, and the

end to which the results of the use are applied.

We say the use must have preceded the vesting of

the land in the land trust.

The next proposition is that the Full Court

did not examine for itself what was done on the
research station nor did the judges examine to what

end those uses or their results were applied.

Kidman SIR M. BYERS, QC 6/3/91

And then the third proposition, Your Honours,

is that the Crown in right of the Northern

Territory used the land for a purpose calculated to

benefit primarily pastoralists raising cattle in

the semi-arid areas of the Northern Territory.	And
we have set out, perhaps at undue length, the

evidence relating to the activities carried on by

the research station, that is the Victoria Rivers

Research Station, mainly applied research into

topics such as increasing productivity of land and
cattle, management techniques such as the reduction

of adult deaths and foetal loss, and I am reading

from paragraph (e) on page 4, range management -

preserving native pastures and the results of all

these techniques are made available to the local

pastoralists. And I would not have thought,

Your Honour, there was any dispute about any of the

matters in those - - -

TOOHEY J: Except, Sir Maurice, what is the significance for

the role of the Land Commissioner of the provision

in section 14 that directs attention to the

occasion when the land is vested in the land trust

which, of course, may be some time on from the time

when the inquiry is conducted?

SIR MAURICE:  Yes, that could be, Your Honour. What we say

is that if one goes to section 14 and you look at

it says:

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 of

such period as the land is required by the

Crown or the Authority.

As Your Honour, I think, has pointed out, that

looks to a use or occupation by the Crown

antecedent to the land becoming Aboriginal land.

In other words, prior to it being vested in a land

trust, because it says, "Where, on the vesting", it

"is being".	So an antecedent occupation or use is
contemplated.	And the antecedent occupation or use

may have been by the Crown in right of the

Commonwealth, so for any purpose under section 122;

or the Crown in right of the Northern Territory, so

for any purpose in respect of which the Northern

Territory may exercise its executive and, no doubt,

legislative powers under section 35 of the

(Self-Government) Act.

TOOHEY J:  I suppose, in practical terms, the Commissioner

has to assume that the use to which the land is

being put at the time of the inquiry is the use

Kidman(2) SIR M. BYERS, QC 6/3/91

that will continue until the land is vested in a

land trust?

SIR MAURICE:  Yes, Your Honour. Your Honours will remember

that the reference to the Crown is picking up, for

lack of a better word, the Crown in right of the

Commonwealth or the Crown in right of the Northern

Territory, section 3(6).

So then we say, Your Honour, what then happens

is, if one goes to section 15, it says:

Where an occupation or use of Aboriginal land

to which section 14 applies -

so they are talking about a use antecedent to the

vesting of it in a land trust because it becomes
Aboriginal land when it is vested in a land trust.

And that, Your Honours will remember, is from the

definition of Aboriginal land in section 3(1) as

meaning:

(a) land held by a 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.

That is rather fleshed out by section 4. If

Your Honours go to section 4, it says:

The Minister may, by notice published in the Gazette, establish Aboriginal Land Trusts to

hold title to land in the Northern Territory

for the benefit of Aboriginals entitled by

Aboriginal tradition to the use or occupation

of the land concerned, whether or not the

traditional entitlement is qualified as to

place, time -

and so on. So, you start off with the use
antecedent to its vesting in a land trust.	Then

the statutory scheme is that the use of the Crown
adverse to those to the land trust or land council

will continue upon payment of a rent if the use or

occupation is not for a community purpose. If it

is for a community purpose then without payment of

rent, and that seems to be the effect of

section 15(1).

Then one goes to the definition of "community

purpose". That is in section 3(1) and one finds

that defined as meaning:

a purpose that is calculated to benefit

primarily the members of a particular

community or group.

Kidman(2) SIR M. BYERS, QC 6/3/91

What we wish to say is that those words are not confined by hypothesis to the Aboriginal

community or group that may have a relationship to

the land because it would be a spiritual

relationshi~, because of the definition of

Aboriginal tradition, but not a residential

relationship.

Now, it is upon the notion of a residential relationship that the Full Court below fixed to

give a restricted meaning to the words "community

or group". So we respectfully submit to Your

Honours that when the statute used the words

"a purpose that is calculated to benefit primarily

the members of a particular community or group" it

is using them in their ordinary sense; so

understood it extends to people who are united by a

common pursuit, for example, the legal community,

the judicial community, the mercantile community,

and so on, and "group" no doubt having a slightly

narrower meaning but also a meaning analogous to

the meaning of "community". I will take

Your Honours to the dictionary references in a

moment.

Then, Your Honours, once one sees that the use

for the community purpose may continue under

section 15, it is by hypothesis a use or occupation adverse to the use or occupation by the traditional

owners because - - -

TOOHEY J:  Why do you use the expression "adverse",

Sir Maurice?

SIR MAURICE:  Well, because I say it is a use or occupation

by the Crown for its purposes.

TOOHEY J: But that does not necessarily indicate that the

use is adverse to anyone, does it? Say, for

instance, it is a school on Aboriginal land, how is

that adverse to the Aboriginal people who are

living in the area?

SIR MAURICE:  I am talking about the use or occupation is

adverse in the sense that it is the Crown that uses

the school, not the Aboriginal people, and their
title which they get because of the notion of

Aboriginal land is subject to the Crown's right to

use it even if it be for their benefit. I am not

suggesting that the benefit of the Aboriginal

community or group is excluded. I say no, that is

included, but it does not exclude other uses for

the benefit of particular communities or groups.

Your Honour, the use of the Crown is

necessarily adverse because the section says you

Kidman(2) SIR M. BYERS, QC 6/3/91

can use it.	Maybe it is beneficial, but that is
another point.

Now, Your Honours, we submit therefore that

when you find land which becomes Aboriginal land by

virtue of a vesting in a land trust, you ask

yourself, "To what purpose was this land applied by

the Crown?	Does that purpose continue?", of
course.	Then one next says, "Is the purpose one

that can be described as being primarily to benefit

a particular community or group?" We submit in

this case it is, and there is no context that

restricts the community or group to the Aboriginal

community or group who may reside there or may not

reside there. I do not know whether Your Honours

have read the judgments below.

MASON CJ: Yes, we have.

SIR MAURICE:  Then, it would be unnecessary for me to go to

those.

Your Honours, the way I can deal, I think - well, I propose to deal fairly briefly

subject, perhaps, to anything in reply, to the

first ground that has been suggested because

Their Honours really took the use of the expression

"cattle industry" and said, "Oh well, that's the

end of the matter" as if that could not be a use

for the benefit of a particular group because the
research station was obviously advantaging - it is
described as a cattle industry - or, if it were in
another area perhaps it could be described as the

wool industry, but obviously that is for the

benefit of pastoralists, clearly.

One does not really resolve the question by

looking at these generalities. One has to look to

the use and one has got to say, "To what end is the use put?", and we say Their Honours just evaded the

real question by deciding it in that fashion.

The next approach Their Honours took was to

say that the words "community or group" in the

definition had the same meaning as they had when

used in relation to Aboriginal land councils.

Their Honours start off this notion - if

Your Honours go to page 264, this would seem to be

the way Their Honours, with great respect, were, as

we would submit, led into error. If Your Honours
would go to - having referred to various

definitions, that is at page 263 and 264 including

mercantile community and so on in the Macquarie

dictionary, which does not help really -

Their Honours then go on, about at the middle of

the page at about line 35. They say:

Kidman(2) 6 SIR M. BYERS, QC 6/3/91

Those definitions reinforce the

impression, which we would anyway have gained
from the context, that the words "community"

and "group" are intended to refer to an

aggregation of identifiable people living in

proximity to each other.

Now, we submit, there is absolutely no reason why

the words "community or group" should be given that

meaning; you cannot. For example, if you think of

a hospital for the tubercular patients, the use is

not for people living in proximity to each other

although, of course, they do in the hospital, but it is the use to benefit that group of tubercular

people wherever they may be. Then, they go on:

The use of the word "particular" is a telling

indication that Parliament did not have in

mind the whole of the Australian, or Northern

Territory, community; but rather -

well, that is obvious, so one does not get really

any further by the use of the word "particular".

In fact, if I might, with Your Honours permission,

just pause for a moment, if one thinks of the

definition without the word "particular" and one

says calculated to benefit primarily a community or
group, there is no difference in meaning really

between the two ways of expressing. In each case,

you are saying a particular group because you say,

a community or group and by adding the word

"particular" you say, a specific, which would be

there in any event.

But, in any event, Your Honours, there is

nothing we wish to say in relation to that use by

Their Honours of the word, except that really it is
obvious that they were not referring to the whole

of Australia and they were referring to a specific

section. And then they go on:

In section 15 the term "community

purpose" is used to refer to a purpose of

occupation or use of Aboriginal land.

Well, that is right.	"So", they say, and so this
is a conclusion.

So the members of the relevant particular

community or group must be persons who benefit

from that occupation or use.

Your Honour, that is the hypothesis. But that does

not identify the people benefitted were the people

resident on the land, it really does not get you

anywhere to that because the people can be, for

Kidman(2) SIR M. BYERS, QC 6/3/91

example, tubercular patient, I do not want to go on

to these illustrations.

Now this is, we submit, how Their Honours get

to it, and then say:

Counsel for the Northern Land Council

points out that, in a number of places, the

Act uses the term "Aboriginal community or

group": see section 19(S)(b), section

23(3)(b), section 35(l)(b), section 35A,

section 41(7) -

and so on, and they say:

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.

Now we would, with respect, submit that is not

correct:

In some of these cases the concept is of an

incorporated Aboriginal community or group -

which cannot be associated by hypothesis with

land -

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 as when those same words are used in the

Act to refer to an Aboriginal community or

group. The reason, 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 Their Honours are saying, "Well, it means,

really, Aboriginal community or group with some

white people in it and associated with the

particular land." I think Their Honours must, with

great respect to Their Honours, they must be

saying, in a sense, "resident of it", because they

go on - so far they have said nothing which would

say - except the words:

cohesive, identifiable body of persons who are

associated with particular land -

because what they have done, Your Honours, is, of

course, to transpose the community from persons

benefitted by the use of the land to persons on the

Kidman(2) SIR M. BYERS, QC 6/3/91

land or associated with the land, either by

spiritual affinity or some other way. That is what

Their Honours seem to be doing.

\ But it is obvious that the use of the land

must benefit the community or group. It is far

from obvious, and we say wrong, that the community

or group must be on the land. The relationship

between the community or group and the land is that

the use of the land benefits the particular

community or group. That is the only relationship.

And then they go on:

To adopt some examples given by counsel, 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.

Which means they have a spiritual affinity.

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 -

and there is little logic - then they say that if it means that other people have benefitted by the

use of the land it is not logical that the local

Aboriginal community should pay for it. Well, that

is the question.

What we say is, Your Honour, that you start

off with the words and having obtained the words

you then say, "Well, what's their natural

grammatical meaning?", and you need a strong

indication of a contrary usage to displace that

meaning.

GAUDRON J: But "community" is not actually a word with a

fixed meaning or a fixed category of reference. It

depends precisely where you stand what it means.

That is the problem with a word like "community".

One can as easily and as accurately refer to the

pastoral industry as a section of the community or

Kidrnan(2) 9 SIR M. BYERS, QC 6/3/91

as the pastoral community. It just depends

entirely where you stand.

SIR MAURICE: That is so, Your Honour. It is a very wide

usage, I suppose is what I am really saying, with

great respect. One is not looking to restrict the

meaning unless you find a context which requires you to do so. You must find that context in the

statute. So we would submit, you must be saying

that the statute requires you to select out of the

generality of the words "community or group" a

specific local application.	Now, that is what they
have done.

We respectfully submit that you cannot find in

the statute a selection of a specific local
application but you find that the criterion is, "Is
the land being used to benefit the group or

community?". There is no reason in that context

that requires you to read down the words "community
or group" so as to say those who are living on the
land or associated with the land because, by

hypothesis, you start off with the use antecedent

to any Aboriginal land. It could be, for example,

in this case, where the land is being used to carry

on research into the running of cattle and into the

grasses and the like so that there can be an

efficient industry, it is clear that that usage

benefits primarily the persons who carry on that

industry. It may secondarily benefit the whole

community but that is not to the point.

The real question, therefore, we submit, comes

to whether you can describe the pastoralists as

falling within the expression "community or group".

That is the question because, Your Honours, there is no doubt that the land is being used by the

Crown. There is no doubt about that. There is no

doubt it is being used for a purpose: it is being

used for a research station. And there is no doubt

that it is being used to benefit someone because it

is being used to benefit, on one view, the whole

community but, in particular, it is being used to

benefit those associated with the running of

cattle. So, it is being used primarily to benefit

them and perhaps, as a consequence, to benefit the

local community as a whole, but it is certainly

being used to benefit the local community.

I think I have got to the stage where I could

take Your Honours to the evidence which was not in

dispute. I have endeavoured to enumerate that and

state its effect on page 3. For some of this

perhaps it is unnecessary to go to the evidence.

The research station is conducted by the Department of Primary Industry and Fisheries of the

Northern Territory. Well, Your Honour, there is no

Kidman(2) 10 SIR M. BYERS, QC 6/3/91

doubt about that and I do not think I need take

Your Honours to the pages in the appeal book where

that is done and I say that is the Crown in right

in the Northern Territory.

Then, applied research is conducted into beef

cattle production and land management in the semi-arid, tropical interior of the Northern

Territory. Your Honours will find that - that,

what I have said there, is almost lifted straight

out of page 159, line 30. They say - it is

Mr Allwood, who was the departmental head:

Since its establishment in 1965 the Research

Station has undertaken and it continues to

undertake research into beef cattle production

and land management in the conditions found in

the semi-arid tropical interior of the

Northern Territory.

There is a plan, if I may give Your Honour a

reference to the plan. I must say I have not found

it very illuminating, but at page 195 there is a

plan of the research station and the various

paddocks into which it is subdivided. Your Honour,

the areas of the research station are the straight

line at the top of the map, and then it comes in

and goes along the bottom of the map and then goes

up the right-hand side, then along the top.

Your Honours will see it is then divided into

various paddocks and so on.

Then, Your Honours, they say applied research

is conducted and at page 159 lines 30 to 36, and
page 161 line 34, having defined the difference

between general research and basic research at

paragraph 12 it says:

The VRRS concentrates mainly on applied

research. The VRRS Advisory Committee was set

up to formulate research projects for the

pastoralists and research officers. Station. The Committee consists of

And there is a true copy of the terms of reference

of the committee.	My friends tell me that is at
page 170:

1. To provide liaison between industry and government on the management of VRRS.

2.       To provide advice on the short, medium and

long-term development of VRRS; and

3. To participate in the broad formation of research and extension programs in the

Kidman(2) 11 SIR M. BYERS, QC 6/3/91

Victoria River District with particular

reference to industry needs.

They then go on at page 161 and refer to - I think

I have already referred Your Honours to that - to

the research programme.

At page 161, following on from the committee

they say:

The bulk of the research at the Station is of

a kind that is intended to be disseminated

through the extension service of the Northern

Territory Department of Primary Industry and

Fisheries. It involves carrying out projects

and experiments which have practical

applications. Useful information derived from

this research is then passed on to the

pastoral industry by the extension service.

The function of the Department's Extension

Officers is to provide an advisory service.

This service is sometimes one by means of

demonstrations on pastoral properties and at

other times by the extension officer visiting

the pastoralist and providing the results of

test, information and advice. Because of its

location, VRRS is truly representative of

pastoral systems which are significant to the

long term preservation of the pastoral estate

in the semi-arid regions of Northern

Australia.

The extension service disseminates information

by means of

(i) written material circulating to the

industry;

(ii) verbal advice;

(iii) field days; and

(iv) visits by extension or research officers

to pastoral properties.

The written material consists of "Ag Notes",

"Tech Notes" and "Technical Bulletins" -

and then I do not think Your Honours need worry

about what is produced, and then he says at the top

of page 163:

I am informed by the research

officers ..... that they provide verbal advice

to Pastoralists in their areas on

request ..... officers make regular visits to

pastoral properties in their areas and that

Pastoralists also visit the Research Station.

Kidman(2) 12 SIR M. BYERS, QC 6/3/91

I have from time to time attended

meetings ..... These Stock Inspectors routinely

visit properties .....

Then 20:

The day to day management of the Research

station produces practical technology that can

be applied in the pastoral industry .....

Field days are held at VRRS to demonstrate the

projects being run, management techniques, and

to provide advice to Northern Territory

pastoral producers and the public. They

provide another link between research projects

and commercial adoption.

I think that also extends to the dissemination

which I also referred to specifically at the bottom

of page 3 and the top of page 4, then I have set

out what the topics of research are in

paragraph (e) and Your Honours will find that on

page 160 line 25 to page 161 line 30.

Your Honours will see about the middle of page 160

line 20:

The main research activities are directed towards:-

(i) Productivity investigations;

(ii) Management techniques; and

(iii) Range management.

Productivity investigations are directed

towards increasing the productivity of animals

and the capacity of the land. Research is

done into managing native pastures, improving

pastures, assessing the potential of different

land types, genetic selection of breeds, feed

supplements .....

Management techniques ..... foetal losses,

fertility, reproductive disorders, disease

control, feral animals.

Then, Your Honours, the research is said to be

beneficial to large numbers of the Northern

Territory herd and that conclusion is set out at

the pages I have given Your Honours reference to.

I do not think it is necessary to read it to

Your Honours. As one would anticipate that is its

aim, that is its results through its dissemination

because a class that grows the herd profits by the

research. That really goes on from page 165 to

page 189 and from page 183 to page 188.

Kidman(2) 13 SIR M. BYERS, QC 6/3/91

GAUDRON J: Sir Maurice, could I interrupt you. I have just

gone to page 165, 166 in which it is said that the

research benefits a number of people in Queensland

and Western Australia.

SIR MAURICE: Yes, Your Honour.

GAUDRON J:  Now, would one not really be seeking that the

largest possible community we were looking at was

the community of the Northern Territory when one

looks at the Act.

SIR MAURICE:  Yes. The fact that other people may benefit,

Your Honour, does not prevent the pastoralists in

the Northern Territory benefitting. It is just

that other people have the advantage of it as well.

TOOHEY J: But it does tend to focus attention to the

question of what is the particular community or

group, does it not, and you start off with land

that is occupied or used by the Crown as here and

can identify the way in which the land is used.	I
am trying to avoid the use of the word "purpose",

but you look at what happens on the land. You then

have to ask whether what happens is for a community
purpose and in order to answer that question you

have to, presumably, identify the community or

group. Is that a reasonable approach?

SIR MAURICE:  Yes, Your Honour.

TOOHEY J: Well, then ultimately I take it you will identify

that group for us, or that community?

SIR MAURICE:  We would say that if you look to what it

does - research into the bringing up of cattle and

land management of areas and so on - what we say is

that the community or group is the pastoralist

because they are the people who run the cattle on

their properties in this semi-arid area.	So we say
that of necessity is the group benefitted.

McHUGH J:  But that is not what the definition says. You

elide the word "particular".	Now it must have some
significance.	Your submission would be exactly the

same if the word "particular" was not there?

SIR MAURICE:  I do not dispute that particular has some

significance, Your Honour, the question is what

significance does it have, which I think is what

Your Honour is putting to me. All it does is to

say that you have to find some specific group, that

is all. It says, well they are a set of persons

that are not the whole lot, that is all

"particular" does.

Kidman(2) 14 SIR M. BYERS, QC 6/3/91

TOOHEY J: So, it is not pastoralists in the Northern

Territory as you put it, it is pastoralists within the semi-arid zone, is it?

SIR MAURICE: It is pastoralists, we submit, Your Honour,

within the Northern Territory.	We would say,
pastoralists within the Northern Territory.	They

are the people who have come; they are the people

who have circulated and they are the people who

come. The fact that other people take advantage of

it does not deny that it is calculated primarily to

benefit the people in the Northern Territory.

After all it is an expenditure of Northern

Territory funds and it is calculated, primarily, to benefit people in the Northern Territory.

Your Honour, it cannot cease to do so if it also

benefits others.

TOOHEY J:	My concern was not that it might serve to benefit others, and, clearly enough, it could benefit
people who are running cattle in any semi-arid zone throughout the world but, in terms of trying to
identify the particular community or group I am
still not clear how you identify.  I mean, you may
say it is pastoralists in the Northern Territory or you may say it is pastoralists who are running
stock in the semi-arid zone or pastoralists within a defined geographical area, I am not sure.
SIR MAURICE:	What I am saying, Your Honour, is that what you have to discover is whether the use that the
Crown makes of the land is calculated to benefit
primarily a particular community or group.
Obviously, it is calculated to benefit pastoralists
and primarily to benefit pastoralists and primarily
to benefit pastoralists in the Northern Territory
because this is where it is situated, these are the
people who receive the information. So, if you are thinking about what the calculation is, there can
be no doubt, in our respectful submission, that it
is calculated to benefit primarily the pastoralists
in the Northern Territory.

In our submission, that is hardly capable of

disputation. It is not disputed. It is not

rendered inaccurate if, also, other people are

benefitted because it is the primary - one is

saying, "Who are the class that the government use

is calculated primarily to benefit?" And to say

that it goes too far does not mean that it is not

calculated to benefit particular groups in the

Northern Territory.

But, Your Honour, even if it went beyond that

and extended to other pastoralists in semi-arid

areas, they would still be a community or group.

They do not cease to be a community or group

Kidman(2) 15 SIR M. BYERS, QC 6/8/91

because the identifying nexus, what makes them a

community or group, is their pursuit. It is not

where they live. They may live outside the

Northern Territory. That does not matter. It

would not be destructive of the application of the

definition to pastoralists to say that some

pastoralists who have benefitted lived outside the

boundaries of the Northern Territory. Perhaps that

is inevitable, bearing in mind there is a large

selection of semi-arid Australia. But,

Your Honour, that does not make it invalid.

TOOHEY J: But that is a different question. I was trying

to avoid that aspect and I was not suggesting to

you that the fact that others might benefit was

necessarily destructive of the argument. All I was

seeking to do was to find from you what is the

particular community or group that it is said gives

rise to a community purpose here.

SIR MAURICE:  Can I answer Your Honour to the best of my

ability? What we say is, that it is calculated to

benefit pastoralists who raise cattle, not

pastoralists who raise sheep, pastoralists who

raise cattle, and it is calculated primarily to

benefit that section of those pastoralists who are

in the Northern Territory. But, Your Honour, on

any view, even if it - can I say something

alternatively, Your Honour? If it is calculated

also to benefit pastoralists in semi-arid areas
outside the Northern Territory, it still falls
within the definition because a definition is not a

definition linked to locality. A definition is a definition linked to pursuit and that is what, we

submit, is the relevant application of the class.

MASON CJ: But, how do you manage to demonstrate that it is

linked to pursuit rather than locality?	What have
you got in your favour that suggests it	is linked
to pursuit rather than locality?

SIR MAURICE:  Your Honour, the nature of the activities

carried on on the research station, first of all.

In other words, they are pursuits, they are research into the raising of cattle.

MASON CJ: Yes, I follow that as a matter of fact. I am

rather concerned with a concept of community.	Your
argument is proceeding on the footing that a
concept of a particular community or group is
linked to pursuit rather than locality.	Now, how
do you manage to support that?

SIR MAURICE:  I manage to support that, Your Honour, because

we say what is being researched into are matters

germane to a pursuit, namely, the raising of

cattle - and I do not want to keep on repeating

Kidman(2) 16 SIR M. BYERS, QC 6/3/91

that - and the land is being used for that purpose.

In other words, the land is being used so that the

benefits of its use will go to the persons who

raise cattle. Then we say, Your Honour, that those

people, the pastoralists who raise cattle, are the
people who obtain the benefit of the research in

the sense that they come along and have their views

and they receive the information in bulletins and

so on. So, we say, what is this doing? It is

producing knowledge. Where does the knowledge go?

We say, primarily, to the pastoralists in the

Northern Territory. What is the knowledge relevant

to? It is relevant to their pursuit as

pastoralists. Therefore, we say, if you look at

all that together, you can see that the use of the

land is calculated to benefit a person united by

their pursuit not by their locality.

GAUDRON J: Sir Maurice, in the course of that, you have

used the word "class" a number of times and I find
no difficulty with the notion of class being
applied to pastoralists, wherever they be, even if

they be concentrated in a particular geographic

locality, but there is a difference in meaning, is

there not, between "class" and "community"?

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

there is a difference in the meaning obviously, but

when you say something is calculated to benefit a

community or group, you are saying it is directed

to some body of persons that are identifiable and

how are they identifiable? Now, if you go to the

dictionary meaning, one can find that they are

identifiable either by locality - that is one

means - but also by following a particular calling.

Can I take Your Honours to the dictionary meaning

now and then I will remind Your Honours of some of

the cases which have approached this question from
the point of view of how you define a section of

the public for the purpose of charitable trusts.

DEANE J:  You might get a more sympathetic hearing if you

got away from European pastoralists and talked

about Aboriginal painters.

SIR MAURICE:  Yes, Your Honour.

DEANE J: It is a lot easier to think of Aboriginal painters

as a group possibly than it is to think of European

pastoralists but it is hard to see any real

distinction between the two.

SIR MAURICE:_ As a matter of nomenclature, depending upon

context, as Justice Gaudron earlier said, it

perhaps is. But is no easier to think of European
painters as a group than it is to think of

Northern Territory pastoralists as a group. They

Kidman(2) 17 SIR M. BYERS, QC 6/3/91

are quite - or of lawyers. Lawyers are a readily

identifiable group and when one asks what is it

that unites them, it is their pursuit of a

particular calling, as it unites painters and

pastoralists.

DEANE J: Well, the argument against you would presumably

exclude land used for Aboriginal painters.

SIR MAURICE:  Yes.

McHUGH J: Sir Maurice, could I ask you this: does the

phrase "community purpose" appear anywhere else

except in section 15?

SIR MAURICE:	It does not appear in section 15, Your Honour.
Mc HUGH J:	"Community purpose"?

SIR MAURICE:  "Community purpose", the definition, yes. It

does, but not in its defined sense.

McHUGH J: Can I just put this radical approach. There are

about nine sections in this Act which refer to

Aboriginal community or group. Now, the Act has

got to be read as a whole, including section 3.

Why is not "particular community or group" really

referring an Aboriginal community or group and that

would make some sense of section 15 then, would it

not, because it would indicate that unless the

Crown land was being used for the purposes of a

particular Aboriginal community or group, rent is

payable?

SIR MAURICE: Could I just pick that up for a moment,

Your Honours? Let us assume that what is carried on on the land is some form of activity which generates money and let us assume that that is

applied to aid Aboriginal painters. Now, can one

call the Aboriginal painters a "community or group"

and, obviously, the answer is, yes, one can. So,

you would there find the land being used or

occupied by the Crown for the benefit of persons who have no physical relationship to the land at

all. That is all, really, that we are saying.	I
am not saying it does not extend to Aboriginal
groups.	What we are saying is, it is not confined

McHUGH J: It must - - -

SIR MAURICE:  Yes, we do not dispute that included in it are Aboriginal groups. They would be a community or

group but they are not the only community or group.

McHUGH J: But it is significant, at least for me anyway,

that you have this term, "Aboriginal community or

Kidman(2) 18 SIR M. BYERS, QC 6/3/91

group" and it runs throughout the Act, I think in

nine sections, and then in this definition which

really only serves the purpose of giving content to

the word "community purpose" in section 15 seems to

indicate that the particular "community or group"

that the definition is talking about is a

particular Aboriginal community or group.

SIR MAURICE:  Yes, but which Aboriginal community or group?

What the Full Court was saying was the Aboriginal

community or group are really the traditional

owners, or persons otherwise within the ambit of

the "Land Trust" under section 4. That is what we

are saying, so that persons who have established a

spiritual affinity to the land or persons who were

entitled -

by Aboriginal tradition to the use or

occupation -

That is what they got at, and they said it includes

white people because you might have a white

policeman or something of that sort. But that

means that you could not use land within section 15

to benefit Aboriginals in a hospital, situated on

the land suffering from either leprosy or

tuberculosis or whatever, because they are not

associated with the land. That seems strange, we

would respectfully submit, that you would exclude a

use of land as a hospital for Aboriginals or as a

hospital generally because a hospital for

tubercular people is obviously a use of the land

for the benefit of a particular community or group.

TOOHEY J: Sir Maurice, is not the answer to

Justice McHugh's question that the Act uses the

expression "Aboriginal community or group" in

relation to sections which deal with the
relationship between particular Aboriginal groups

on Aboriginal land?

SIR MAURICE: That is so, Your Honour.

TOOHEY J: It is concerned with, as it were, the domestic

situation in which the land has been vested in a

questions arises between particular groups of land trust or there an Aboriginal land council, and or land trust.

SIR MAURICE:  Yes. Your Honour, I had proposed later to

take Your Honours through those sections.	I hope I
am being intelligible.	I am not quite sure whether

I dealt with Justice Gaudron's difficulty or not.

I am sure if I have not she will acquit me from any

attempt of deliberately refraining to.

Kidrnan(2) 19 SIR M. BYERS, QC 6/3/91

Your Honour, can I come to the dictionary

definitions in the case, and then can I go to the
sections which, as Mr Justice Toohey says,

certainly throw light, which dispels the suggestion

that the Full Court adopted. All the sections they
refer to, with one exception, are sections relating

to what the land council does in relation to

Aboriginals living within the area of the land

council. Your Honours will remember the Northern

Territory is divided into two. There are Northern

Land Councils and Central Land Councils.	So they
are vast areas.

Your Honours, I was going to, if I might, just

remind you of the dictionary meanings only because

that just shows one the normal meaning of these

phrases, and then I was going to refer to some of

the cases.

The dictionary that we looked to was the 1989

edition of the Oxford, volume 3. Your Honours will

see a definition of "community" at page 581. First

of all they start off with "community" -

As a quality or state.

That has nothing to do with us here.

The quality of appertaining to or being held

by all in common;	joint or common
ownership ..... of	goods.
Right of common.
Common Character.

Then they go on:

5.      Commonness, ordinary occurrence.

Sb. Common character, vulgarity.

Then at page 582: 

A body of individuals. The body of those

having common or equal rights or rank, as

distinguished from the privileged classes;

the body of commons; the commonalty.

A body of people organized into a political,

municipal or social unity;	a state or
commonwealth.

A body of men living in the same locality.

I think they mean "persons" there.

Kidman(2) 20 SIR M. BYERS, QC 6/3/91

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 in

London.

So that is pursuit, or the nexus is pursuit, or

possession of a particular identifying religion or

ailment, one would think. Then they go on:

the community -

they say the people as a whole.	Then they talk
about specialized uses -

a body of nations -

and so on.

Now, what we say about that, Your Honours,

with respect, is that those meanings indicate the

breadth of the usage of the word. In other words,

they indicate it is ordinary grammatical meaning

and in its ordinary grammatical meaning, it extends

to those united by a common pursuit.

Now, Your Honours, if Your Honours go to

"group" which is in the same volume, at page 887,

the first meaning seems to be a specialized meaning

in the "Fine Art", so I shall not worry about that,

Your Honour. Then there is a musical meaning,

archaeological I assume that means, the next one;
general, they say in the secondary set of meanings:

An assemblage of persons, animals, or material things, standing near together so as to form a

collective unity;	a knot (of people) ..... In
early use the word often conveys a notion of

confused aggregation.

Then they say:

of persons.

They say an an "aggregation of persons", an

"aggregation of things", then 3 says:

A number of persons or things regarded as forming a unity on account of any kind of

mutual or common relation, or classed together

on account of a certain degree of similarity.

Kidman(2) 21 SIR M. BYERS, QC 6/3/91

And so one would say, a legal group or I think it

is used with special use in the Army:	"group
so-and-so".	And then there are specific uses

chemical and so on. So, "group" extends to people

united by pursuit of a calling.	Now, Your Honours,
so there we have "community" or "group".	I think

Your Honours have those, I have copies here if

Your Honours have not.

MASON CJ: Yes, we have them.

SIR MAURICE: As Your Honours please. "Particularly",

Your Honours, if I could just remind Your Honours

of that, 2 it says:

Pertaining or relating to a single definite

thing or person, or set of things or persons.

Set ..... or persons.

So, it therefore would say, for example, barristers would be a particular group or they would be a

particular community. Judges would be a particular

group or a particular community and so on. But the

whole point of "particular" is that it just

selects. It says it is not everyone. It does not

matter how wide it is, but it says it is not

everyone and that is why we would respectfully

submit, really, if you forget the word "particular"

you really do not change the meaning. You would

have still a requirement that there should be

calculated primarily to benefit a group or

community.

TOOHEY J: Well, the use of the word "particular", I

suppose, does one thing at any rate, it makes it

clear that it is not the Northern Territory

community at large that is being referred to?

SIR MAURICE: Well, I suppose so, Your Honour, yes. It may

be, Your Honour, one has to think about this, with

because the Commonwealth - after all, this was a	great respect, also as a use by the Commonwealth	Commonwealth Act amended by the Commonwealth and
the Commonwealth is the Crown for the purposes of
this Act. One does not confine it to the
Northern Territory. If one is thinking of a use by
the Commonwealth, one would extend it beyond the
Northern Territory, obviously. So you cannot
confine it to the Northern Territory and it was not
intended to have that meaning.

Could I just now refer Your Honours to some of

the cases.	May I go immediately to a decision of
this Court in Thompson, 102 CLR 315.	The pages to

which I wish to refer are 323 to 324 and 328.

Mr Justice Fullagar and Mr Justice Kitto concurred

Kidman(2) 22 SIR M. BYERS, QC 6/3/91

with the judgment of Sir Owen Dixon. What

Their Honours were dealing with was section 8(5) of the Estate Duty Assessment Act which:

exempts from estate duty "so much of the

estate as is ... bequeathed for ... public

educational purposes in Australia ... ".

And, if Your Honours go to page 318 to see the

statutory context, the Chief Justice sets out

subsection (5) and then, at the second-last line,

he says:

Sub-section (8) of s. 8 purports to amplify the application of the expression "public

educational purposes" in the Act. At one time

the expression occurred in two provisions -

then His Honour gives a bit of history and then

His Honour says - third line down from the top: Sub-section (8) provides that in the Act

"public educational purposes" includes the

establishment or endowment of an educational
institution for the benefit of the public or a

section of the public.

Again you get this notion of class or community.

Now, if Your Honours go over to page 323 - having

referred to Oppenheim and other cases which I will

not worry Your Honours with - Sir Owen, at about 10

or 12 lines from the top of the page, refers to:

In In re Income Tax Acts (No. 1) the Full

Court of Victoria decided that a benevolent

asylum to which none other than freemasons and

their wives or the widows of freemasons were

eligible for admission was not a "public

benevolent asylum" within -

the meaning of -

a Victorian enactment giving a deduction from

income tax in respect of gifts to a public

benevolent asylum. This decision appears to
be directly in point and is in my opinion

correct. I refer in particular to the

following passage in the judgment of Lowe J.:
"It may not be easy or even possible to

enumerate in advance the differentiae of a

'section of the public' within this rule, but

I illustrate along what lines a conclusion may

be arrived at. Having regard to the

composition 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

Kidman(2) 23 SIR M. BYERS, QC 6/3/91

geographical area. There is no bar which

admits some members of the public to those

groups and rejects others. Any member of the

public, may, if he will, follow a particular

calling, adhere to a particular faith, or

reside within a particular area. Of the

members of such a group it may be said in a

real sense that they are primarily members of

the public, and such a group may well

constitute a section of the public.	They
stand on one side of the line.

That is on the right side.

Each group, it is true, may consist of many

individuals, but number alone is not the

criterion by which to determine whether the

group constitutes a section of the public.

And then it goes on:

A club, a literary society, a trade union may

all have numerous members, but I think that

none of these could properly be called a

section of the public.

And it says:

They stand on the other side of the line. The

distinguishing feature of each of these latter

bodies is that it is an association which

takes power to itself to admit or exclude

members of the public according to some

arbitrary test which it sets up in its rules

or otherwise. Each of them does oppose a bar to admission within it. It is not one of the

groups into which the community as a matter of

necessary organization or by convention is

divided -

So, we say that supports the view that pastoralists, by following a common pursuit, are a

division of the community and would be a section of

the public. So far as I am aware, Your Honours, Mr

Justice Lowe's decision and the decision of the

High Court are the only cases in this area that set

out a principle by which one can distinguish

between the fluctuating body of members that people
keep on talking about and a section of the public.

And Mr Justice Menzies, at page 328, refers to what

Mr Justice Macfarlan says in the same case, about

two-thirds of the way down:

"What is clear is that, generally speaking, if

admission to membership of a body or inclusion

in a class depends on the consent of other

members or of some other members (eg a

Kidman(2) SIR M. BYERS, QC 6/3/91

committee) of the body or class it is not 'a section of the public' in the relevant sense of the term: and I prefer to express it in

that negative form." Lowe J considered that

an association "which takes power to itself to

admit or exclude members of the public ..... It

is to be observed -

and His Honour then quotes the passage that

Sir Owen Dixon had previously quoted which finds
the nexus in a common calling. And His Honour goes
on at the top of the page - the quote continues and

His Honour concludes about two lines before the end

of the first paragraph:

His Honour's conclusion was that the evidence

did not establish that the order of masons was
an association falling within the former
category.

And then His Honour goes on to consider Oppenheim and other cases.

Your Honours, since the Court applied the decision In re the Income Tax Acts, I would not be

minded to read it to Your Honours but it is on our

list and we would rely on it. There is an

observation at page 216 in the judgment of

Mr Justice Macfarlan where he says:

Seamen are a section of the public, whereas the Seamen's Union is not.

Now, that is fairly Delphic, I do concede. But,

again, the point is calling. I do not wish to

refer to Oppenheim's case, Your Honour, which is on

our list.

So what those authorities establish, and the

dictionary meaning, is that "community" in its

grammatical sense extends to people who follow a

calling. Now, that is what we say and we say

pastoralists do such.

Your Honours, can I just say something about

the sections that the Full Court referred to. All

I wish to say, certainly in-chief, is this, that

when one looks at them it is apparent, as

Your Honour Mr Justice Toohey indicated to me, that

the sections in question are dealing, I think
almost without exception, with the activities of a
land council and, by hypothesis, a land council's

function is to assist in the administration of land

trusts.

Can I just take Your Honours very briefly to

the section which Their Honour refer to at

Kidman(2) 25 SIR M. BYERS, QC 6/3/91

page 265. They start off at section 19(5)(b) and

as Your Honour Mr Justice Toohey has pointed out

this is talking about a land council. It says:

A Land Council shall not give a direction

under this section for the grant, transfer or
surrender of an estate or interest in land

unless the Land Council is satisfied that -

(b) any Aboriginal community or group that may

be affected by the proposed grant, transfer or
surrender has been consulted.

So, Your Honour, the Aboriginal group or community has no relationship - need have no relationship to

the land that is to be transferred because they are

talking about a land council. And one of the

functions of the land council, Your Honours will
find at section 21(2), where the boundaries of the

area of the land council are established, but

section 21(2)(b) - that is by drawing a line across

the Northern Territory - and 23:

The functions of a Land Council are -

(a) to ascertain and express the wishes and

the opinions of Aboriginals living in the area

of the Land Council as to the management of

Aboriginal land -

TOOHEY J: 

I am not sure that I heard your submission in

regard to section 19(5). Are you suggesting that
the Aboriginal community or group that is mentioned

there, Sir Maurice, need have no association with

the land?

SIR MAURICE: 

I am suggesting, Your Honour, that it may

have an association, a spiritual association, for

example, but it need have no residential nexus. It

need not be situated anywhere near the land

concerned.

TOOHEY J:  But it must stand to be affected by the proposed

grant or transfer.

SIR MAURICE:  It must be affected, but it may be affected

by having its spiritual affiliations determined;

while sections 14 and 15 are talking about the reverse of that. They are talking about the use of land before it becomes vested in a land trust and hence before land council activities can apply.

but what they are talking about is a body of

Your Honours will remember that traditional

Aboriginal owners are persons under the definition

who have a common spiritual affiliation to a site

Kidman(2) 26 SIR M. BYERS, QC 6/3/91

and the people who are referred to in section 4 are

persons entitled by Aboriginal tradition not to occupation but to use or occupation and that is presumably a wider class than the traditional

Aboriginal owners.

I suppose all I am saying is that the

Aboriginal community or group in section 5 need

have no residence on the land. It may be situated

hundreds of kilometres away from it and may live
hundreds of kilometres away from it, and so,

Your Honours, in section 23(3) which is talking

about a land council where they say again:

In carrying out its functions with respect to

any Aboriginal land in its area, a Land

Council shall have regard to the interests of,

and shall consult with, the traditional

Aboriginal owners (if any) of the land and any

other Aboriginals interested in the land and,

in particular, shall not take any action,

including, but not limited to, the giving of

consent or the withholding of consent, in any

matter in connection with land held by a land

Trust, unless the Land Council is satisfied

that -

(a) the traditional Aboriginal

owners ..... understand ..... it; and

(b) any Aboriginal community or group that may

be affected by the proposed action has been

consulted and has had adequate

opportunity - - -

So again you are not talking about residential

collection and section 35(l)(b) in terms talks

about:

any incorporated Aboriginal communities or

groups the members of which live in the area

of the Land Council.

In other words, it is referring to Aboriginal people who live in the areas of land council which has nothing to do, of course, with section 14 and

35(a), Your Honour, is to a like effect as is

section 41(7) - again is talking about exploration

licences and it says:

The Land Council shall, within 30 days

after receiving the application, cause notice

of the application to be sent to any

Aboriginal community or group that may be

affected by the grant of the licence.

to mine.

Kidman(2) 27 SIR M. BYERS, QC 6/3/91

TOOHEY J:  The Full Court is right, is it not, when it says

on page 265, outline 5, having examined these

provisions that:

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.

SIR MAURICE:  Not necessarily, Your Honour, no. That is

what I am saying, they need not to be associated

with the land in relation to which the activity

occurs.

TOOHEY J: It depends what you mean by "associated", I

suppose. The Full Court is not suggesting that

there has to be some traditional ownership or some

spiritual affiliation with the land in question but

rather that the term is used to indicate:

a cohesive, identifiable body of persons who -

have some association with the land.

SIR MAURICE:	If one goes on - I am sorry Your Honour.
TOOHEY J:	The next step - I am not suggesting that each

step follows logically, but is there anything wrong

with that view of the sections to which the Full

Court refers?

SIR MAURICE:  The section says "it may be affected" but what

I am saying, Your Honour, is that usage occurs in a

completely different context from sections 14 and

15 and thus in a completely different context from

the definition of "community purpose" because,

Your Honour, 14 and 15 are looking to things before

the land becomes Aboriginal land and then it

selects a use which is anterior and continues

thereafter, whereas what all this is dealing with

is land which is Aboriginal land and so you find

either traditional ownership which may be spiritual
and not physical in the sense of locality.	I am

not making myself clear, but if you look to the

Full Court's reasoning, why are they saying at the

bottom of the page:

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

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

police station, an airstrip ..... that use is

intended to benefit the whole of the local

community, Aboriginal and non-Aboriginal

alike.

TOOHEY J: Yes, they do not seem to contemplate a situation

in which the local community is entirely

non-Aboriginal.

Kidman(2) 28 SIR M. BYERS, QC 6/3/91

SIR MAURICE:  Yes, or where the - - -

TOOHEY J: Perhaps because there is no such thing.

SIR MAURICE:	There may be no such thing or where the Aboriginal community - its interest in the land may
have nothing to do with residents. That is really
what I am endeavouring to say and what they have
treated it as as if it implies, involves residents, that is really what I am saying and I saying, in
these sections, as Your Honour pointed out to me earlier, they are all dealing with land councils or people who are members of incorporated Aboriginal
communities who live within the areas of the land
council.

TOOHEY J: But perhaps the real crux of the Full Court's

decision, Sir Maurice, is to be found on the

earlier page, page 264, because it is there that

the court arrives at a view of what is meant by

"community" or "group", namely:

an aggregation of identifiable people living

in proximity to each other.

SIR MAURICE: Well, it may be, Your Honour, but they do not

get that from the context - - -

TOOHEY J:  Do you have any quarrel with that definition?

SIR MAURICE:  I say that is one of the meanings. I have no

quarrel with that as one of the meanings. Our

quarrel with it is if it were the only meaning.

That is the whole point and you cannot, in our

respectful submission, by no process of reasoning

or English, can you arrive from the words
"particular community or group" to "local community

or group", and that is what they have done,

particularly when the hypothesis of traditional

ownership is spiritual affiliation, not residence.

To pick up Mr Justice Deane's - you could have

the Aboriginal painters who could have a spiritual

affiliation but they may be situated hundreds of
kilometres away from the land in question in

kilometres away from the land in question in

section 14. And we would say, yes, in our

submission, that if you could imagine a use of land

for their benefit by raising money or whatever,

then it is benefiting a group of people, namely the

Aboriginal painters.	Of course it is.	My friends
would have to say - - -

DEANE J: Unless you read that "living in proximity" as

meaning living or who have lived, it would exclude

traditional owners in many cases.

Kidman(2) 29 SIR M. BYERS, QC 6/3/91

SIR MAURICE:  Yes, that is so, Your Honour. In our

respectful submission, it is obviously based on a

mistake. If Your Honour looks to the last four
lines - I do not want to repeat them again - that,
with great respect to Their Honours, is a Delphic
statement. But, obviously, Their Honours do not

find it so because they say:

Ins. 15 the term "community purpose" is

used to refer to a purpose of occupation or

use of Aboriginal land. So -

they say, therefore -

the members of the relevant particular

community or group must be persons who benefit

from that occupation or use.

Now, in one sense it is correct but Their Honours are saying, really, that they are

there. They are the people who benefit from the

use of the school, airstrip and so on.

Your Honours, anything more I said would be idle

repetition and we submit that that is not a

justifiable conclusion either from the words used

or from the statute. If the Court pleases.

MASON CJ: Thank you, Sir Maurice. Yes, Ms Backhouse.

MS BACKHOUSE: If the Court pleases. Might I hand up to the

Court -

MASON CJ:	Thank you.
MS BACKHOUSE:	If Your Honours please. The outline is fairly sketchy. In point 1 we just make the
submission that it is not a community purpose for
the purposes of section 15 of the Act properly construed in accordance with the definition
contained in section 3 of the Act.  And I just
state there the definition of "community purpose".

It is our submission that the Court, for the

purposes of looking at this particular question as

to the meaning of the word "community" or "group"

which occurs in section 3, that it is necessary for

the Court to be taken to section 11 of the Act
which is, of course, the section dealing with the
actual vesting. That is section 11(1) where it

says:

Where -

(a) a Commissioner has, before the

commencement of the Aboriginal Land Rights

Legislation Amendment Act 1982, recommended,

or, after the commencement of that Act,

Kidman(2) 30 6/3/91

recommends, to the Minister in a report made

to him under paragraph S0(l)(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.

At that point of time the Minister has before him a

report from the Aboriginal Land Commissioner. With

that before him the Minister then has a function or

a duty of being satisfied of a benefit, in our submission, to arise for relevant Aboriginals. That, we would submit, is precisely what

paragraph (b) says:

(b) the Minister is satisfied -

(i) that the land, or a part of the land,

should be granted to a single Land Trust to be

held for the benefit of Aboriginals who are

the relevant Aboriginals in relation to that

land or that part of that land.

There is no need for me to go to the next

subparagraph. We submit that it is appropriate for

the Court to have in mind that at this point when

the Minister is carrying out his function he has,
of course, before him that part of the report which
deals with the aspect of detriment and which in
this case was the fact that the Department of

Primary Industry and Fisheries was, in fact, in

occupation in right of the Northern Territory of

the particular portion that is really the main

subject of dissension here, namely, the Northern

Territory portion 824 which is the VRRS station.

So having said that, once the Minister makes a

decision then we say that section 71 of the Act

then becomes relevant. If I may take Your Honours

to that, that is the section which falls into

Part VII of the Act which deals with the -

Traditional rights to use or occupation of

Aboriginal land.

71(1). 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 -

Kidman(2) 31 6/3/91

et cetera. We submit that section 71 will be

satisfied irrespective of whether or not Aborigines

are, in fact, occupying the land. The circumstance

here is that the claimants are not presently on the

land. We say that section 14 which is the one

that preserves certain occupations and, of course,

that is limited to the Crown, for use or occupation

by the Crown -

or, with the licence or permission of the

Crown, by an Authority -

that it is only in that circumstance, which is the

present circumstance, that section 14 will come

into play or arise.

TOOHEY J:  Ms Backhouse, does section 14 somehow override

section 71?

MS BACKHOUSE:  As I understand the Part, when we come to

the interpretation section, section 66 -

section 71, as Your Honour rightly says, refers to

the extent of the occupation and, indeed,

section 71(2) says:

Sub-section (1) does not authorize an entry,

use or occupation that would interfere with

the use or enjoyment of an estate or interest in the land held by a person not being a Land Trust or an Aboriginal Council or other

incorporated association of Aboriginals.

Then section 66 interprets what:

A reference in this Part -

and, of course, that is restricted, as we

understand it, to this particular section, is more

in the nature of administrative type of provisions,

particularly regulating the entry or otherwise, and

I think it also provides for the Northern

Territory - section 73 - it provides for the making

of laws by the Northern Territory under the 1978

Act in relation to the making of:

laws regulating or authorizing the entry of

persons on Aboriginal land, but so that any

such laws shall provide for the right of

Aboriginals to enter such land in accordance

with Aboriginal tradition.

What we say, though, is that section 14 only comes

into play when, in fact, there has been a vesting;

if I may take Your Honours back to that section:

Where, on the vesting in a Land Trust - - -

Kidman(2) 32 6/3/91

TOOHEY J:	So does section 71, does it not?
MS BACKHOUSE:	Yes, but the point that I seek to make is

that the Minister at this stage has performed his
function because the vesting has actually taken

place.

TOOHEY J:  Yes. I am just trying to understand the

reconciliation, if one is needed, between

section 14 and section 71, because section 14

purports to give the Crown or the authority a

continued right of occupation.

MS BACKHOUSE:  Yes.

TOOHEY J: Section 71, in general terms, empowers

Aboriginals, or groups of Aboriginals, to enter

upon Aboriginal land and to use or occupy that

land, so long as it is in accord with Aboriginal

tradition.

MS BACKHOUSE:	Yes.
TOOHEY J:	Well how do the two work together?
MS BACKHOUSE:	Well, if Your Honour pleases, in this

situation and the situation which is presented here

is that there is a suspension of their rights, as

it were, until such times as the occupation or use

ceases.

TOOHEY J: That is because section 14 overrides section 71.

MS BACKHOUSE:  In that sense, yes, but with respect,

Your Honour, the only - - -

DEANE J:	Or is it section 71(2)?
MS BACKHOUSE:	Section 71(2) certainly does not permit an

entry which has been cut down by the interest in

the land held by a person not being a land trust,

et cetera, and that in turn, if you go to the

definition section which does include a section 14

situation.

TOOHEY J:  Yes. The answer, I think, lies in

section 66(d).

MS BACKHOUSE:	Yes.
TOOHEY J:	Yes, thank you.
MS BACKHOUSE:	What I was seeking to put to Your Honours

was that at the point of time that the aspect which

has been dealt with by section 14, the point of

time is at the vesting in the land trust. That is

why I referred earlier to the fact that at that

Kidman(2) 33 6/3/91

point of time the Minister has already had before

him the report and has in fact in this case become

aware of the rights of the authority which was

conducting the research station, and on the
hypothesis that the Minister determines or makes a

decision that he is going to recommend a grant,

that means that he has taken into account, he has

weighed up the competing interests, as we

understand it, of the Aboriginal claimants on the

one hand in respect of whom traditional ownership

has been found, and the interests of the Northern

Territory authority which has been running or had

this use and occupation for a research station.

Now, we would submit that the scheme of the

legislation brings those persons, that is the

relevant Aboriginals, and they are the ones who are

to be the beneficiaries under the land trust.	The
purport of our submission is that they are the

people or who should be the group calculated to get

the benefit.

TOOHEY J: Well, then, that is coming fairly close to what

Justice McHugh put to Sir Maurice.

MS BACKHOUSE:	Yes, with respect.
TOOHEY J:	A particular community or group means a

particular Aboriginal community or group.

MS BACKHOUSE:  That is right and then it comes back to

Aboriginal group or community. Our submission is

that coming that way that it does, in fact, mean an

Aboriginal - - -

TOOHEY J:	And mean only an Aboriginal community or group?
MS BACKHOUSE:	No, for the reasons given by the Full Court;

namely, that you can have a racially mixed group.

You could have Aboriginal and non-Aboriginal

persons.

TOOHEY J: But does it follow from that if the group

comprises no Aboriginal then it cannot be a

particular community or group for the purpose of

section 15?

MS BACKHOUSE:  We would submit that it cannot encompass or

be a group which is restricted to non-Aboriginals,

on our argument, because we say the relevant

Aboriginals are those ones who the Minister must

have identified at the time that he made his grant

or recommendation back under section 11. So we are
saying that they are excluded. Non-Aboriginals are excluded on the basis of what the Minister is doing

in section 11.

Kidman(2) 6/3/91

If I may just take Your Honours back to the

wording there in section ll(b):

the Minister is satisfied -

(i) that the land, or a part of the land,

should be granted to a single Land Trust to be

held for the benefit of Aboriginals who are

the relevant Aboriginals -

We say then that they are the group or community

and it follows, of course, that they are Aboriginal

- it is an Aboriginal community or group. And in

furtherance of that submission we would say that
the Court is entitled to look at the long_title of

the Act which, if I may take Your Honours to that,

speaks about:

An Act providing for the granting of

Traditional Aboriginal Land in the Northern
Territory for the benefit of Aboriginals, and

for other purposes -

and we would submit that the Court is entitled to

look at the object as stated in the long title and

that supports that the purpose of the Act is to,

firstly, remedy a situation which had existed,

namely that the members of the Aboriginal

community, as a whole, had been denied or certainly

did not have any rights in the sense of title. So, the first thing that the Act is doing is to provide

a structure whereby the Aboriginal Land

Commissioner is able to - when I say "able to", he

indeed conducts and inquiry and, of course, under

section 50, in our submission, the primary thing

that he is directed to do is to ascertain whether

those Aboriginals - that is the ones who have made

the claim - or any other Aboriginals are the

traditional Aboriginal owners of the land.

Now, we say that the Act is directed to, one,

remedying a situation and that remedy is to provide

title, albeit through a land trust, but it is for

the benefit of - and that when section 11(1) comes

back into play.

TOOHEY J: Yes, I understand all of that. Section 15 is a

rental provision, it is not a title provision; it

is not even a right of occupation provision.

MS BACKHOUSE: Section 15?

TOOHEY J: Yes, it is a rental provision. It provides that

where land is vested in a land trust the right of

occupation which is guaranteed to the Crown or the

Authority by section 14 is subject to the payment

Kidman(2) 35 6/3/91

of a rent unless the land is used for a community

purpose.

MS BACKHOUSE:  Yes. We say, qua that relevant group that we

say has been identified by the Minister, that no

benefit flows to that particular group, therefore,

rent should be payable.	What I was going to add
before, Your Honour - - -

TOOHEY J: It might flow to the group in a multiracial

situation, I mean, if you have a school to which

Aboriginal children are going and non-Aboriginal children are going, on your argument that would not

be a community purpose?

MS BACKHOUSE:  No, Your Honour. I am sorry if I have -

TOOHEY J:	No, I am sorry, I think you put it the other way.
MS BACKHOUSE:	Yes, because I adopted what was said by the

Full Court.

TOOHEY J: But if it was simply a non-Aboriginal school then

it would not qualify under section 15, yes, I

follow that.

MS BACKHOUSE:  Yes. But what I had intended to say on this

use, thank you, Mr Stevens. They get the title but they are deprived pro tern anyhow from the use, then they should get the rent.

aspect of what the objects and purposes of the Act
is that if they do not get the title then they

should get this other benefit which is the rental.

TOOHEY J: Unless they are receiving some benefit from the

use to which the land has been put.

MS BACKHOUSE: Unless they are receiving some benefit, yes,

and we say that this particular group, if we have

identified the correct group, is not getting any
benefit.	What I have endeavoured to submit to

Your Honours is that that is all re-enforced by the

purposes as set out in the long title to the Act.

And then in relation to this word "particular", we
would submit that the word "particular" then

focuses on one or many successful claimants as a

community or group. It is that particular group

which of course is made up of a numeracy of

claimants where some have been rejected, some have

been - in this case, I think His Honour

Mr Justice Olney, the Commissioner, in fact, upheld

the interests of most of them - the claimants, I

should say. What we submit is that the word

"particular" in the definition of "community

purpose", that it could well be that where you have

more than one successful claimant you could have -

Kidman(2) 36 6/3/91

or, at least, we identify that as the particular

group of community.

Then if I may then turn to point 2 of our

outline. We submit that on the evidence before

him, the Commissioner was entitled to comment as he

did under section 50(3)(b) that the cattle industry
did not constitute a particular community or group

and on that basis the present use was not for a

community purpose.

First, we say that there was nothing wrong

with the finding, namely, that the particular
purpose of the research station was for the cattle

industry and we then secondly submit that

His Honour was correct in saying that the cattle

industry did not constitute a particular community

or group.

What my learned friend, Sir Maurice, both in

the Federal Court and here, has tried to say, "But,
look, the real beneficiaries of all this work are

the pastoralists". But the thrust of all the

evidence that was before the Commissioner was the

cattle industry. The whole of the evidence is

dotted with this expression "cattle industry''.

Indeed, if one thinks about it, the industry as such could go well beyond the pastoralists who

may actually receive the pieces of paper or the

bulletins or have the demonstrations from time to

time. The cattle industry, we would put, consists

of a greater number of people than the

pastoralists.

DEANE J: Ms Backhouse, could I divert you for a second?

MS BACKHOUSE: Certainly, Your Honour.

DEANE J: If rent is payable, under section 15, is there

anything in the Act that says what the land council

has to do with it?

MS BACKHOUSE:  Yes, there is, Your Honour. I should have

taken Your Honours to that. That	is dealt with,
indeed, in section 35, one of the	sections that was
referred to by Sir Maurice. Yes,	I had intended:

Application of money of Land Council

35. (1) Moneys paid to a Land Council under

sub-section 64(1) shall be applied by the Land

Council -

Subsection (4):

Kidman(2) 37 6/3/91

Where a Land Council receives a payment in

respect of Aboriginal land, including a

payment - - -

DEANE J: Good, thank you. That was what I was looking for.

So that ties the rent that is lost if it is a

community purpose. It ties the loss to the

traditional owners and not to the community

generally.

MS BACKHOUSE:  Yes, if Your Honour pleases. We would submit

that the evidence before the Commissioner
demonstrated that the research activities were for
the benefit of the cattle industry and, therefore,

not for the benefit of a particular community or

group.

In point 3 we submit that the pastoralists do

not constitute a community or group. We submit

that "pastoralists" is too loosely defined and

geographically scattered - I think was the word

used by the Full Court and we would respectfully

adopt those words - that that is not the sort of

community that is structured in the Act. We would

submit that those words "community or group" should

be construed, again as the Full Court did say in

its judgment, as when used in the Act to refer to

an Aboriginal community or group. That, in our

submission, is a group which is to be contrasted

with a group of pastoralists as -

GAUDRON J:  What is the point of contrast, Ms Backhouse?

MS BACKHOUSE: Well, we say that the group that is

identified in the Act - and I would take

Your Honours to the second reading speech of

Mr Viner when the Act was being introduced into the

Parliament which, I think, was in 1976 - would

firstly be of a more closely knit and also a

smaller group; a group which has, certainly for

the purposes of the Act and the granting of

traditional land rights, of course, it has got to

be identified - one has got to go to the definition

of "traditional Aboriginal owners", where it speaks

about:

in relation to land, means 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 a right over that land.

Kidman(2) 38 6/3/91

MS BACKHOUSE:	In our submission, it is also appropriate to look at the definition of "Aboriginal tradition"
which speaks about:

a body of traditions, observances, customs and

beliefs of Aboriginals or of a community or

group of Aboriginals and includes those

traditions ..... as applied in relation to

particular persons, sites, areas of land,

things or relationships -

So we are saying that that confines it,

Your Honour.

GAUDRON J: It confines it by a personal right with respect

to identified land or, perhaps, a link which

suggests that they might personally enjoy some

benefit from the land?

MS BACKHOUSE:  Yes, but particularly there in the definition

of ''Aboriginal tradition" it talks about:

particular persons, sites, areas of land,

things or relationships -

They would be the words upon which we would rely to have this confining effect, Your Honour.

Then, still in relation to point 3, we would

say that even if pastoralists are members of a

community or group the occupation by the VRRS was

not primarily for the benefit of such a community

or group. We would say it is certainly for the

benefit of the industry as a whole and that takes

us back to what His Honour Mr Justice Olney was

saying, that it was for the cattle industry not for

the pastoralists. And, indeed, he was to say - and

as the Full Court was to echo - that is not to say

that the research carried on at that particular

station did not assist individual pastoralists but

we would submit that the activities which have been

described - at least Sir Maurice has taken you to a

description of them in the affidavit of Mr Allwood

and also in his submission, but we would submit

that the benefit of that activity which is carried

on at that station is for the cattle industry as a

whole.

I have already dealt, really, with point 4

except that I have not taken Your Honours to the

second reading speech. If I may just briefly refer

to that - have Your Honours a copy of that, at page

3081.

MASON CJ: Yes, we have that.

Kidman(2) 39 5/3/91

MS BACKHOUSE: If Your Honour pleases. In the left-hand

column, the second paragraph, where the then

Minister said:

Most of us now appreciate more sensitively

than in the past that traditional Aborigines
think, feel and act about land according to a
plan of life a world apart from ours.

Traditional Aborigines associate identifiable

groups of people with particular 'countries'

or tracts of territory in such a way that the

link was publicly reputed to express both

spiritual and physical communication between

living people and their 'dream time' ancestors

and between the 'country' as it now is and the

'ancestral' country which had been given its

names, its physical features, its founding

stocks of food and water, and its owners and

possessors by the ancestors themselves. It is
believed that ancestors left in each

'country' -

used in that context -

certain vital powers that, used properly by

the right people, make that 'country' fruitful

and ensure a good life for people forever. and satisfying life - based on an identifiable and unmistakable group of people forming a

descent group or 'clan', living with relation

to an identifiable territory publicly

recognised as the 'country' of the group

because of the actions of ancestors who had

left in each 'country' sacred memorials - the

totems and totemic sites of which we hear so

much - as proof of entitlement for, and to

guide and discipline, their descendants.

We would submit that that is helpful in

interpreting the meaning to be attached to

"community or group" in the definition in
section 3.	On page 3082, just on the purpose which

I have mentioned before, under the heading "Land

Trusts" in the right-hand column, about half-way

down the paragraph:

The trusts will be title holding bodies whose

actions will be directed by the traditional

owners through Land Councils. Moreover, the

creation of these Land Trusts will achieve the

primary objective of any Land Trust scheme

which is the vesting, under Australian law, of

rights corresponding with traditional

Aboriginal rights, without risk that the

rights conferred are not sufficient to cover

traditional Aboriginal rights. I cannot

Kidman(2) 40 6/3/91

over-emphasise the importance of this last

mentioned aspect of land rights. It is a

fundamental change in social thinking -

Then under the heading "Land Councils" about half-way down that paragraph:

The Land Councils will not, however, be

responsible for bringing forward

claims ..... Land Councils will be the

administrative agents of the traditional

owners and their success will depend on the

extent to which they reflect Aboriginal

opinion -

I do not think I need trouble you - - -

TOOHEY J:	Ms Backhouse, do you read the judgment of the Full Court as endorsing the submission that
"particular community or group" in the definition
means particular Aboriginal community or group, or perhaps saying no more than that given the way in
which the Act operates and the need for the community to be a number of people living in
proximity to each other that it is likely to be an
Aboriginal community or group that will be affected
by section 15?  Do I make the distinction clear?

MS BACKHOUSE:  Yes, Your Honour. How I would seek to answer

that is by saying that as I read the Full Court's

decision, rather than endorsing it in toto, as

Your Honour has asked me, we would be submitting,

as indeed I did on my first proposition, that it is

by virtue of the structuring of the Act that one

arrives at who the +elevant Aboriginal group is.

Then for the purposes of the definition section, it

is only necessary to identify, and that is for

Minister, because it is his function under section

15, who is the particular group.

TOOHEY J:  I did not read the judgment of the Full Court as going so far as to say that as a matter of

construction of community purpose that it means a

particular Aboriginal community or group, but

rather that is likely to be the way in which it

would work out.	You put it more strongly than
that, do you not?

MS BACKHOUSE:  Yes, I put it more strongly. I was perhaps

trying to support my own submission. We would in

this connection mention that paragraph at the end

of page 264 where the Full Court said:

In s.15 the term "community purpose" is used

to refer to a purpose of occupation or use of

Aboriginal land.

Kidman(2) 41 6/3/91

We say by force of that, those Aboriginals who are the relevant Aboriginals are the ones who are to receive the benefit.

McHUGH J: Well, it is the word "primarily" in the

definition assists that because a purpose may

benefit other people besides an Aboriginal

community group, but if it primarily benefits the

particular community of group of Aboriginals that

is sufficient to deprive them of the rent.

MS BACKHOUSE:  Yes, to deprive them of the rent, yes. We

submit that the intention of the Act is that it is

the relevant Aboriginal group, or relevant

Aboriginals, identified through section 11, we say

it is that group who must primarily benefit or be

calculated to benefit. That is the construction

that we would submit is not only appropriate but in
the context of the whole Act, we would say, that

that is what is the meaning to be attached to those

words:

that is calculated to benefit primarily the

members of a particular community or group.

DEANE J:  You would read "a particular" in that definition

as applied to section 15 as "the relevant"?

MS BACKHOUSE:  I am sorry, Your Honour, would

Your Honour - - -

DEANE J:  I was suggesting that to get to your result you

probably need to read "a particular community or group" in the abstract definition as meaning the

"relevant community or group" when you apply it to

section 15.

MS BACKHOUSE:  Yes. If it is not well of course then we say

then the rent should be payable. I mean,

section 15 is put in the negative, is not a

community purpose, switching it around the other

way, as it were, if it is for a relevant particular

group, or primarily for a particular relevant

community or group then no rent would be payable.

DEANE J: It probably does not matter much but 15(2)(a) does

not fit in terribly well with this limited

interpretation of 15(1):

an occupation or use of land by the Crown for

forestry purposes -

is deemed out. It is a bit hard to see how it

could ever be in on this.

MS BACKHOUSE:  Yes. I am sorry, Your Honour, I was just

seeing if there was something further. I

Kidman(2) 42 6/3/91

understand, Your Honour, that I am not in a

position myself but I think that my friend,

Mr Castan, proposes to say something about those

forestry purposes and the way they fit into the

Act.

TOOHEY J: It came up at the special leave hearing,

Ms Backhouse - - -

MS BACKHOUSE:	Yes, that is right but I -
TOOHEY J:	- - - and I think we were told that there is some

reference in the Woodward report.

MS BACKHOUSE: In the Woodward Commission, yes.

TOOHEY J:	We may be stealing some of Mr Castan's thunder.
MS BACKHOUSE:	We can take Your Honours to that and I think

that we did send a message to include this

Aboriginal Land Rights Commission, the first report

of July 1973.	Has the Court got copies of that?
There are copies here.	We do have copies just in
case - - -

MASON CJ:	Thank you.
MS BACKHOUSE:	The relevant page is page 32 which is the

first page immediately under the heading of

Forestry:

Since 1961 it has been government policy to

investigate and develop forest resources on

Aboriginal reserves. Royalties, after

deduction of 50% for developmental costs, have

been paid to the Aborigines Benefits Trust

Fund in accordance with Section 21 of the

Northern Territory (Administration) Act

1910-1968.

So that, the effect of that is that the relevant

Aborigines would, in fact, receive a benefit

arising out of royalties from forestry purposes.

Then, if I may take Your Honours to page 265

of the appeal book which is the judgment of the deal - and Sir Maurice has read, I think, most of

this to you:

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

Kidman(2) 43 6/3/91

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.

We put our case in two ways. We put it, firstly,

on the basis of the statutory construction and

then, secondly, on the basis of the width or

breadth of what is the meaning of "community or

group" when used in the section?

Just on the aspect of the use of the long

title, we just wish to refer to the judgment of

Mr Justice Deane in Re Bolton; Ex parte Beane

which, unfortunately, we did not put on our list,

but which is reported in 162 CLR and the judgment commences at page 514 and His Honour's reasons on

this particular point are at page 530.

Specifically, about half-way down page 530:

The reasons which led his Honour -

and that is a reference to His Honour

Justice Newton -

to reach that conclusion are set out with

clarity and precision in his judgment and it

is unnecessary that I repeat them in detail.

In summary, they include: the prima facie

inference to be drawn from the name and long
title of the Act which provided the context
for the provisions of Pt III and which

disclosed that the primary concern of the Act

was to make provision in respect of visiting

forces in this country -

et cetera -

confined to jurisdiction over the "members" of

a "visiting force of that country" in

Australia; and, the requirement that the

provisions of Pt III, being essentially penal

in character, should be narrowly construed so
that they derogated from the liberty of the
subject only to the extent warranted by a

clear legislative intent to be discerned in

the words of the statute.

If Your Honours please.

MASON CJ: Yes, thank you, Ms Backhouse. Is there anything

left for you to say, Mr Castan?

Kidman(2) 44 6/3/91

MR CASTAN:	Yes, Your Honours.
MASON CJ:	I should have added the adjective "useful".

MR CASTAN:  Yes, Your Honour, hopefully. I hand up an

outline of submissions, but I hope to be of most

use by diverting from that outline at the outset to

make a couple of points that have emerged from the

debate so far this morning. I should say the

outline seeks to draw the Court's attention to the
fact that there are two separate bases on which the

Full Federal Court found against the appellant.

The more interesting questions that have been

debated here today perhaps arise under the second

basis or ground.

The first basis on which the Full Federal

Court found against the appellant is, in our respectful submission, compelling and almost

unassailable, but can I come back to that to make

two more general points. It is important to stress

that - it has been said by my learned friend,

Sir Maurice, that neither the Commissioner nor the

Federal Court really examined the facts, and we

would seek to take specific issue with that

statement in his submission and put to the Court by

him. It is not, we would respectfully submit,

warranted on the decision of the Commissioner, nor

on the judgment in the Full Federal Court, and the

fact that there was not a detailed analysis in the

reasons hardly justifies that assertion.

Secondly, and perhaps more pertinently, can I

take the Court particularly to section 19 which has

not been fully analysed by the Court. It is, in

our respectful submission, most helpful because the

way in which it is framed gives an answer to some

of these questions and also is the only other of debate this morning. Section 19(1) provides:
instance, so far as we are able to ascertain, of
the use of the words "for any community purposes".

Except as provided by this section or

section 20, a Land Trust shall not deal with
or dispose of, or agree to deal with or
dispose of, any estate or interest in land
vested in it.

Leaving aside section 19(1A), (2) provides for certain kinds of disposition of land by the land

trust:

With consent, in writing, of the Minister, and

at the direction, in writing, of the relevant

Land Council, a Land Trust may ..... grant an

estate or interest in land vested in it -

Kidman(2) 45 6/3/91

now subsection (2) deals with grants:

to an Aboriginal, and Aboriginal Council or an

Incorporated Aboriginal Association.

There are three classes of case in which interests

may be granted to Aboriginals in broad terms.

Subsection (2)(a):

for use for residential purposes .....

(b) for use in the conduct of a business by

the Aboriginal -

and subsection (c), most interestingly:

for any community purpose -

that is the only instance we have been able to

ascertain where those words, that is the words that

are in section 15 and picked up in the definition

in section 3, are used elsewhere in the Act and

here they are used in the context:

for any community purpose of the Aboriginal

community or group for whose benefit the Land

Trust holds the land.

TOOHEY J: That does not help much though, does it,

Mr Castan, because it is the absence of the word
"Aboriginal" in the definition section that has

caused all the problems.

MR CASTAN:  Yes, it has, in that sense, in the area of the

second debate but when one goes back to the

definition in section 3 which also applies to the

words "community purpose" when used here, one sees

that:

a purpose that is calculated to benefit

primarily the members of a particular

community or group -

there must be confined to the Aboriginal community

or group for whose benefit the land trust holds the

land. In the case of section 15, the word

"Aboriginal" is not there but, in our respectful

submission, it is clear that what must be provided

for is a benefit that benefits the relevant

community, meaning community or group. And what

one does derive from that is that the kind of thing

that is contemplated by community purpose is

community purpose affecting a particularly

community or group in that sense.

Of course, as has been put by my learned friend, Sir Maurice, there can be a very broad view

Kidman(2) 46 6/3/91

of community and as was put by Justice Gaudron it

may depend entirely on the perspective that one

comes from or the context in which it is used. And

the context - one cannot divorce section 15 from

the whole of the context of the Act and the strain

that Sir Maurice seeks to put upon the words is

that he seeks to isolate it and take it out of this

context in which community purposes are linked to

Aboriginal community.

Of course, the reason why you will get the

situation, as the Full Court explained, which it is

designed to provide for or, rather, is not the

limitation, is that these Crown purposes will

include purposes which encompass persons other than

solely the Aboriginal community. There will be the

teacher of the school, there will be the children

of some of the people who are stationed at the

Aboriginal community outpost and so on.

McHUGH J:  I must say I do not see the force of that because

the purpose may benefit people who include people

of the class you have just spoken about but the

rent is payable if it benefits primarily the

members of a particular community or group.	So why
is there any need to include within the term

"particular community or group" people other than

Aboriginals?

MR CASTAN: Well, in our respectful submission, what has

been undertaken here is a degree of caution by the

draftsman. In other words, there is a concern that

whereas these other provisions are oriented

specifically and exclusively to Aboriginal

communities, meaning limited to the persons who are

Aboriginals and form part of them, you have got a

provision here that is dealing with Crown uses

which are for the benefit of these communities and

clearly not wanting to have a situation in which it

is said that the Crown use cannot continue in so

far as it benefits those who are - - -

McHUGH J:  The theory of the two sections, 14 and 15, is

that because the Aboriginals have been deprived of

the use of the land it is proper that they should

be compensated for that deprivation unless, one

would think, the purpose was calculated to

primarily benefit them. Now, the fact that it may

also benefit others does not matter.

MR CASTAN: Well, we would respectfully express general

agreement with the way in which Your Honour has

put it, but it does not lead, in our respectful

submission, to any adverse inference relating to

the absence of the word "Aboriginal" in the

definition of "community purpose" or primarily. It

is rather, simply, a degree of caution or concern

Kidman(2)	6/3/91 that these uses - these section 14 uses - may well
go beyond those uses which are elsewhere expressed
in those other expressions to which attention has
been drawn which have the specific limitation of
only being applicable to the Aboriginals within a
community.

But can I go on, because a further clue is

given in subsection (3). Some enlightenment is

given in subsection (3) because subsection (3)

provides for a different kind of grant in

section 19. We have dealt with, in subsection (2),

the grants to Aboriginals for their various kinds
of uses and then (3) provides:

With the consent, in writing, of the Minister, and at the direction, in writing, of the

relevant Land Council, a Land Trust may,

subject to sub-section (7), grant an estate or
interest in land vested in it to the
Commonwealth, the Northern Territory or an

Authority for any public purpose or to a

mission for any mission purpose.

And, in subsection (7) we find that where it is a grant to Aboriginals for residence, business or community purpose, it can be for 21 years - up to 21 years - but where it is a grant to the

Commonwealth or the Northern Territory or an authority for public purposes it can only be for

10 years.

One can posit the situation as a hypothetical:

imagine if we had a new research station proposed

by the Northern Territory government. If we had a

new research station proposed tomorrow after the

grant of this land - on Aboriginal land - where

would it fit? How would it fit? It would clearly

be - in the emphasis of what the thrust of

Sir Maurice's argument has been is that, really,

this research station is a public purpose and of

course it is.

And this Act acknowledges the existence of the

kinds of public purposes that he has spoken of.

And all evidence goes to suggest it is a manifestly

beneficial purpose, the conduct of this research

station. But this Act distinguishes between these

kinds of public purposes to which Sir Maurice has

given such emphasis from community purposes, the

ones that relate to the particular community, that

relate to what is going on out in communities on

the land and which is designed to benefit

particular groups of people so defined. In that

context, his pastoralists - and I would seek to

come back to that after the adjournment - - -

Kidman(2) 6/3/91

MASON CJ:	How long will you be, Mr Castan?
MR CASTAN:	I would hope no more than 15 or 20 minutes.

MASON CJ: Very well, we will adjourn until 2.15.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

MASON CJ: Yes, Mr Castan.

MR CASTAN:  May it please the Court. Could I take the Court

briefly to some of the factual material in order to

found those matters that are referred to on the

first page of our outline of submissions, and I
would seek to add some page references that have

emerged from the course of argument this morning to

those that are set out in the fifth and sixth lines

of paragraph 1 of our submissions.

At page 161 of the book, paragraph 13, towards

the foot of the page:

The bulk of the research at the Station is of

a kind that is intended to be disseminated

through the extension service of the Northern

Territory Department of Primary Industry and

Fisheries. It involves carrying out projects

and experiments which have practical

applications. Useful information derived from

this research is then passed on to the

pastoral industry by the extension service.

At the top of the next page:

The function of the Department's Extension

Officers is to provide an advisory service.

This service is sometimes done by means of

demonstrations on pastoral properties ..... by

the extension officer visiting pastoralists

and providing the results of tests ..... Because

of its location, VRRS is truly representative
of pastoral systems which are significant to

the long term preservation of the pastoral

estate in the semi-arid regions of Northern

Australia.

There is a reference in paragraph 15 to written

material circulated to the industry, and in

paragraph 17 to articles in scientific journals

Kidman(2) 49 6/3/91

which relate to the pastoral industry, and some of

those are exhibited to that affidavit of

Mr Allwood.

At page 163, paragraph 20:

The day to day management of the Research

Station produces practical technology that can

be applied in the pastoral industry.	The
systems used can be seen by visiting
pastoralists.

Field days are held at VRRS to demonstrate the projects being run, management techniques, and

to provide advice to Northern Territory

pastoral producers and the public. They

provide another link between research projects

and commercial adoption.

At page 164:

In addition to providing a service to the

pastoral industry directly, the Research

Station has a further role as a participant in

the broader scientific community. It is

important for the Territory to be involved in

an exchange of information with other research

organizations ..... is truly representative of

pastoral systems which are significant to the

long term preservation of the pastoral estate,

particularly the pastoral estate of the

Northern Territory.

23. To assist its role in the scientific

community, the·Research Station has been and

will continue to be involved in joint projects

with the CSIRO Divisions and with other

Territory bodies such as the Conservation

Commission. It is likely that VRRS will be

involved in co-operative work using CSIRO

Landsat.

24. The Research Station's unique position in

the semi-arid tropics assists other
organizations obtain data from a more

comprehensive range of Australian conditions.

Cooperative studies on pastures with CSIRO are

conducted at VRRS. Data is exchanged for

information that CSIRO obtains from other
research facilities, particularly those
located in Northern Queensland.

TOOHEY J:  Mr Castan, where does this take us? I mean, the

fact that a witness uses the expression

"pastoral industry" does not help very much, does

it? You can call it pastoral industry, you can

call it pastoralists.

Kidman(2) 50 6/3/91

MR CASTAN:  In our respectful submission it does, because

that leap which our learned friends have made from

the industry to the pastoralists is unwarranted and

cannot be made neither on the evidence nor in

principle. In our respectful submission, that

assumes a model of political economy that looks to

the pastoralists as the only participants or the

only persons who benefit from the development of

the industry in the way that this research station

has, the function that it provides. That is not

so.

Those who work in the industry are benefited

and I mean by that the managers who work on the

stations, the staff who work on the stations, the

drovers who have employment benefit from it. Those

who drive cattle trucks benefit from the

development of this industry. Those who run

abattoirs derive benefit. The Australian

Government derives benefit by deriving taxation income from those who generate income from this

industry. The concept of an industry is a much wider concept and in this particular instance is highly relevant because what this station is

dedicated to is not - it is not like the

cattlemen's club which is, in effect, what our

learned friends would have. It is something much

broader than that. It is generating the

development of an industry that is a key industry

in the functioning of the whole Northern Territory

economy, and we cannot look at the whole Northern
Territory economy and then make that great leap and

say, "What we are really talking about are some

companies, the shareholders of which are presumably

diverse".

There is not a skerrick of evidence produced

by our learned friends below or anywhere else to

tell us precisely who these pastoralists are.	Do
we mean Mrs Holmes a'Court who, one reads, owns
some of these stations?	Do we mean a company in
Hong Kong that owns some other station?

TOOHEY J: That was not really the point of my question.

What you are saying might well demonstrate that
there is no particular community or group within

the meaning of the Act, but the fact that a witness

uses the label of pastoral industry does not really

matter much one way or the another, does it?

MR CASTAN:  Of itself it does not, but in the context it

may and we only refer to it to illustrate that the

witness himself is forced to demonstrate that it is

more than just - perhaps the word "pastoralist"

itself only illustrates the problem because it is

unclear from our learned friend's submission

whether he really means the managers, that is to

Kidman(2) 51 6/3/91

say the employees of those companies which own the

pastoral properties, or does he really mean the

company itself as a legal person forming part of

this community, or does he mean the shareholders,

who, one assumes, in many cases do not live in the

Northern Territory and are widely dispersed in

Japan and the US and Australia, and presumably some

of them are what we might call the old fashioned

concept, the owner of a pastoral property who lives

and works on the property that is handed down

through the family; there are some those too,

presumably.

There is not a skerrick of evidence about this

and that is why we say the evidence goes only to

show that there is an industry. The finding

ultimately by the Commissioner was that the correct

word was the cattle industry, not the pastoral

industry. There is a distinction in the sense that

what is really being talked about here is a

component of the economy of the Northern Territory

and it is that conclusion which we say is the

proper conclusion to be drawn from this material,

that one does not find a relevant community or

group and what our learned friends are forced to

do, as my learned friend Sir Maurice said I think

three or four times to the Court was, "Well, it is
obvious that means the pastoralists", but he does

not tell us and none of the evidence tells us who

that might be, and does not tell us why this notion

of the development of an entire industry with all

the components that go to make it up, including

ultimately the export of - presumably supply of

beef is the ultimate product from that industry -

there is no benefit of having cows on land as such;

ultimately there is a benefit in generating income

and generating a product - and this is a component

of the Northern Territory economy we are talking about here, and it bears no relationship to some

group who you can nicely characterize and say,

"They're the pastoralists".

Our learned friends would be better off if

they could identify some particular group; perhaps
managers. It may be that there is a group one

could ultimately identify, if there were, in some

appropriate situation, people whose responsibility

is to actually run cattle stations. They would be

managers in some instance, owner/managers in

others, presumably.

There is no evidence about that sort of thing

that would enable us to be able to say, "Well,

there it is, there's the community or group of

people and all we really seek to draw attention to

is that Mr Allwood's evidence is significant in

that this station is not directed just to some

Kidman(2) 52 6/3/91

group of persons who perhaps are the managers; it

is directed to this much wider aim;	it extends
right across Australia.".

There is further material I was going to come

to which goes to such questions as the role that
this station plays in the brucellosis eradication

campaign, which is at 166. There are figures given

on the part that it plays in the overall Northern

Territory economy, on page 185. Some of those

other reference at 185 to 186, the overall position

of the herd. I need not go to all the references.

The ones I sought to take Your Honours to are

at 166, 167 and 168 and I will not read the whole

of those. But we do draw some strength from the

use of that phrase "reflect in the industry" and

put the argument that I have just summarized about

what the significance is of using that.

The other one I did want to take Your Honours

to was at 168 which refers to the funding by the

Department of Primary Industry and Fisheries - that

is the Northern Territory department - and that

refers to the basic funding.	But then, at line 24,
the point is made that:

Industry bodies such as the Australian Meat

and Livestock Research and Development Council

(A.MLRDC) may contribute funds to individual

projects as may bodies which participate in

joint projects with the Research Station (eg

CSIRO). It is anticipated that funds will

also be directed from the National Soil

Conservation Council to this area for the

purposes of developing appropriate land care

and management practices ..... in conjunction

with Conservation Commission -

So there are conservation issues, as one might

expect, given the nature of the operation of cattle
on country in the Northern Territory. There are

conservation issues also to which are addressed

which obviously are concerns of the larger

community, the Northern Territory community or the

Australian community as a whole.

The other reference, at 193, Your Honours,

speaks about the overall functioning of the overall

industry. The way it is expressed at line 18:

The actual effect of the loss of the northern

pastoral industry in general is difficult to

evaluate. However, the absence of any other

similar facility in the SAT, and the historic

importance of research to continued viability
of pastoral industry in northern Australia,

strongly validates the necessity for this

Kidman(2) 53 6/3/91

site ..... is a working research facility that

is capable of handling applied research and

managerial studies the need for which, in the

future, is assured to increase. If there is

no such facility, then there is little

likelihood of this type of work being able to be done in the area, with consequent negative

effects on the NT and Australian economy.

The Australian and Northern Territory

Governments have invested over two million dollars in developing this research

facility ..... It is heavily capitalized -

and so on. And the other references are at

pages 198 to 199, and without analysing them in

detail, Your Honours will there see some tables

which give the:

value of NT beef cattle production excluding

value of processing at NT abattoirs -

and the figures are give·n there of some years up to

1987.      Then -

value added by processing at NT abattoirs -

and those figures are given -

total value of beef cattle production plus

value added at NT abattoirs -

and then on the next page total -

animal industry employment -

is given, 2,210:

Total estimated animal industry plus flow-on

employment.

Now all these figures illustrate the point that I

made shortly in response to Your Honour

Justice Toohey that it is a much larger issue than

one that merely affects the pastoralists whoever

they may be.

Now, in our respectful submission, there are

two components of that argument if I can go over to

page 2, in this sense, that when one looks at this

question of who are these pastoralists we would

first of all put, as I have earlier submitted, that

that is too narrow because this research station is

a component which relates to a much larger group

than the pastoralists, but if one then confines it
to pastoralists and seeks to say, "Well, could they

amount to a particular community or ·group" and this

Kidman(2) 6/3/91

is the point made as point 3 on page 2, in any

event they are too scattered, they are too diverse

to be able to be characterized as persons joined by

a common calling.

If there is a correct test that would look to the members of the Northern Territory bar, say,

who, I understand are some 18 or 20 barristers, one

might be able to say, "Well, that is a particular

community or group by the very nature of the way
the bar works and by their numbers and by the way

in which they function together in chambers".

Perhaps that might be appropriate, and my learned

friend has sought to draw something from this
notion of a calling, and there might be a meaning

that is relevant and it can be given to a community

or group by reference to a calling. But if there

is, pastoralists do not come into it because,
inevitably, there will be companies or directors or

shareholders, there will be lessees, there will be

all of the various persons who make up whatever it

is that is called "a pastoralist".

But, in any event, if you accept it, it is

respectfully submitted that you would never get an

instance when rent will be payable because every

group, of course, every characterization of people

in a particular way amounts to "a community or

group", taking those words at their widest, and

that is why we have given the example in

paragraph 4 of road users, road travellers. Road travellers obviously are a group of people and no

a group and we represent their

doubt the NRMA or the RACV or the equivalence, or motorists are

interests". But, of course, they cover a diverse

group. Yes, in a sense, they benefit. They

benefit from any road making that is done in the

Northern Territory, so if there was a gravel pit

one could say, "Well, at least there is a group of

people who benefit". But to apply the words in

that way, to say, "Well, there is a group and we
will call them a group;	we will call them road

travellers and that includes everybody who travels

by vehicle in the Northern Territory", and it is

true, one could given that characterization, it

would be of no benefit, no use or no meaningful use

in attempting to give meaning or reference to these

words in this legislation.

We say that there sensibly should be a limited

meaning and that the Full Federal Court has sought

to characterize the appropriate limitation on that

meaning. As we put it at page 3, it is put that

the intention of the Act - the structure of this

Act is that land of the Crown is to be returned or

restored to its traditional Aboriginal owners.

Kidman(2) 55 6/3/91

Now, that is a proposition that has been accepted

by this Court in a number of cases, the first of

them was Reg v Toohey; Ex parte the

Attorney-General for the Northern Territory,

(1979) 145 CLR 374 at 389. There has been others and I think the courts in the previous cases have

been referred to but the concept of this underlying

intention is one that is accepted.

As was put by our learned friends, there is

then a concept of rent to be distributed by those owners for a continued occupation. The policy of the Act, we would say, is to ensure that if

deprived of land then, nevertheless, the Aboriginal
communities will get the benefit of the rent unless

the community or group of which they form part will

benefit from the use.

Now, there is not a perfect correlation here

under this Act and perhaps there could not have
been. There is not a perfect correlation between -

and our learned friends have sought to make

something of this - the group of traditional land

owners, as defined, and the community or group that

might benefit from a particular use that is a

relevant benefit to a community or group. The

rent, if it comes, goes to traditional land owners.

The benefit, if there is no rent to be paid, is the

benefit which will go to a community or group and

that will presumably include land owners but there

will not be a perfect correlation.

The notion that underlies the Act, in our

respectful submission, is that presumably those

traditional land owners form part of the community

or group that participate in the benefit and if one

wanted examples one can either hypothesize or

illustrate from - although the actual facts of the

way in which particular communities or groups work

are not set out in this case but one can posit

cases.

There is one case that happens to be pertinent

to this land or the community, as I am instructed,

called Yarralin, which is a small settlement with a

store and school and a clinic and an airstrip and

various kinds of facilities that are facilities

provided by the Crown. They continue. The people

who are the traditional owners of and who have the

benefit of those facilities, some of them live at

Yarralin, some of them live in outstations, some of the live some way from Yarralin. In that community there are representatives of a number of groups, I

am instructed: Bilinara, Mudbura and so on. But

there will be a variety of groups represented and
then some of those groups will be in the vicinity

so that their land may be out to the west but they

Kidman(2) 56 6/3/91

will be coming in from outstations to use those

Crown facilities at Yarralin.

This, in the real world, in our respectful

submission, works and makes sense and there are, as

one would expect, a white teacher and a nurse and

the like there. And there may be children there

using the school who are non-Aboriginal. So there is, in our respectful submission, a reality to the

way in which this particular structure has been

created and a reality and common sense to the

structure which provides for the non-payment of

rent for those facilities which do service those

communities in the cases where there is a benefit

to the community.

And, of course, while the word "group" is used

we have made the point towards the foot of page 3

that what is intended here is not that widest

meaning of the word "group" which might include, on

one broad view, everybody who is a road user. What

we are talking about here is a relevant group for

the purpose of this legislation and a relevant

group might, in this context, be a group that
happens to have a particular area of interest.

Your Honour Justice Deane cited the example of Aboriginal painters. In that broadest collocation

it may be too wide but if there was a Papunyatoola

art centre or art school set up at a particular

place, which was providing resources for and

perhaps instruction for artists, including some

white artists who came to Papunya for the purpose

of learning how the Papunya people produce the kind of art that has had such enormous impact in the art

world in Australia they would be part of that

community, they would have the benefit of that

facility which provides - and there is a physical

link that is relevant. So, although one can -

there is also a link with the calling in the sense of engaged in the work of art and the facilities	used for persons in a sense having that calling.	It relates to the community or group. It relates
to the physical community there and it relates to
the group of people who are there who have the use
of that particular facility. So, with perhaps
Utopia women, there is another well known group and
one can conceive of a facility provided by the Crown which might continue and because it is
providing for some group within that larger Papunya
community one could say, "Well, the women form a
group that is relevant for this purpose."

But there still remains that link with the

community in the physical sense whether or not they
are the traditional owners of the particular

location where the facility is located.

Kidman(2) 57 6/3/91

TOOHEY J:  Mr Castan, just reading your precis, it is not

entirely clear to me whether you are contending

that "community purpose" must involve an Aboriginal

community or group.

MR CASTAN:  We would adopt the formulation in answer to that

question that has been adopted by the Full Court of the Federal Court, Your Honour, that it can include

persons who are not Aboriginal persons, but does

not have to be confined to Aboriginal persons.

TOOHEY J: Well, that is not quite the same thing, is it?

The word "primarily" would cater for situations where there were a mix of people.

MR CASTAN:	I am not sure then if - I thought that was the question Your Honour had addressed to me.
TOOHEY J:	I understood the argument that was being put to

us earlier on was that when you read the Act in its

entirety, or so far as it is relevant, the only

conclusion you can draw is that an Aboriginal

community will be the only community that would

answer the description for "community purpose" in

section 15.

MR CASTAN:	Yes, Your Honour, and that we would adopt.
TOOHEY J:	As a matter of construction, or because that is

the way in which the Act works?

MR CASTAN:  Because that is the way it is going to work,

Your Honour. It is not essential to read back into

the words "community purpose" , "Aboriginal" ,

"community or group", and as I answered by way of

response to His Honour Justice McHugh, it may be

that there is an excess of caution, but one can see

a reason why the words primarily might lead to

problems in some instances if the words had been

confined to that.

You would not want to have a situation where at

the moment of vesting, as it happened by

circumstance or chance, a school happened to have a

majority of white students thereby giving rise to

an argument that "Well, it was primarily not for

the Aboriginal community", and if the word

"Aboriginal" were included that sort of argument

might be open. These words are not redundant. The

absence of "Aboriginal" is in order to ensure that

it is clear that these provisions can encompass

those where there are non-Aboriginal persons

receiving the benefit of the facility.

But in terms of result, and given that what we

are discussing is Aboriginal land and land which

has been in all cases land where the test has been

Kidman(2) 58 6/3/91

made out, the stringent test of establishing a

relevant kind of spiritual association. As

Your Honours will be aware, it is not always made

out in all these cases. In some instances -

Your Honours have dealt with a case in the past

where there were competing claims by two Aboriginal

groups and ultimately had to be resolved.

So there is a variety of circumstance. But

given that we are talking about Aboriginal land, in

the ordinary case it is going to be the situation.

One would not expect to find a situation in which

there is a community that is not basically an

Aboriginal community.

McHUGH J: Mr Castan, this is unalienated Crown land. Is

all of it in remote areas?

MR CASTAN: In this particular instance?

McHUGH J: Well, just generally, dealt with by the Act. Are

these all remote areas?

MR CASTAN: All land that has been vested under this - - -?

McHUGH J: Well, it is dealt with in the Act.

MR CASTAN: In the Act?

McHUGH J: In the Act, yes.

I think the answer is no to that. I suppose

the word "remote" is - I am hesitating because I am

not sure what Your Honour means. One well-known

case that has been back and forth through the

courts, including this Court, relates to town

boundaries of Darwin and the extension of those

boundaries.

McHUGH J: Yes. Well, they are rather artificial

boundaries.

MR CASTAN: Quite, but the issue nevertheless was - at some

point, presumably, the boundary of the land claimed

came somewhere within an area that one, if one was

using the word "remote" one would have to say,

"Perhaps is not so remote". So one could not say -

putting it as a universal proposition, but one

would have to say, "most is" and given the oddity

of the fact that only unalienated Crown land can be

claimed is that one gets cases like this where the

land has been claimed - the land claim that was

made related, for these people, virtually only to

this research station and I think a portion of a

stock route though their traditional land

encompassed vast areas of Victoria River Downs and

Fitzroy Station surrounding this research station

Kidman(2) 59 6/3/91

which is located between Victoria River Downs and

Fitzroy. But, obviously, they cannot claim any of

their traditional land or the vast bulk of their

traditional land, so that, in a sense, the claims
that are made under the Act, because they are

limited to unalienated Crown land, relate only to

those parts of land that are not otherwise

alienated.

That is why you get the curious position where

almost the whole of the land claim relates to the

research station, except the stock routes which are

relatively - that is a map of the Northern

Territory, Your Honour, the top part of the

Northern Territory and I am instructed that the

small yellow section here is the research station

and all that is claimed is that plus a tiny bit

that is hard to see which looks like a little road

coming out of it which, in fact, is the stock

route, but the whole of this which is Victoria

River Downs and that is Fitzroy Station and these

are other stations - it is all pastoral leases

which do not get to be the subject of claim at all.

At page 3 we have referred to some of the other matters of construction, it is perhaps not

necessary to labour those. Our learned friend

sought to overcome the word "particular'',

virtually, by saying that it is redundant and that

illustrates the difficulty which it provides for

him and the instances that we provide in

paragraph (g), I think, have already been referred

to. They are referred to in the judgment below and

Your Honours have had those referred to you and

they do suggest, as·we have said there, a community

or group which can be consulted or express views

and to which an estate can be given.

If I can just briefly refer to this "forestry

problem" referred to in section 15(2). The

significance of that is that the Woodward Report

made the point that there were already existing

forestry areas which were for the benefit of the

particular communities. I know that this morning

the proposition was put by - I have forgotten - one

of Your Honours that this seemed to go the wrong

way. But the findings of the Woodward Report, when

looked at carefully, are that the forestry areas

were for the benefit of the communities where they

were located. But the Act provides no structure

for the continuation of the royalties that are
referred to in the Woodward Report as payable to

the local people and the substitute for that is

rental. So that 15(2) is an exception, it is a

deliberate exception, because otherwise one would

inevitably come to the conclusion that the forestry

areas are for the benefit of local communities. If

Kidman(2) 60 6/3/91

there was no provision for rent then they would get

no benefit out of it because although there is a

benefit in having them there there is no provision

for royalty to go; the substitute for that is a

rental payment. So, it is a deliberate exception

which only confirms the rule or establishes the
point that we have been seeking to make and that is
the reason why it was necessary under the scheme of
the legislations to specifically provide for rent
in that particular instance notwithstanding that

there is a benefit as discussed in that Woodward

Report. Those are the submissions, if the Court

pleases.

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

SIR MAURICE: 

Your Honour, a number of the things my learned

friend Mr Castan said, of course, do not appear
anywhere in particular, but might I just deal with
those matters that do appear.

Your Honours, my learned friend said something about pastoral industry. Now, if one were to say,

"Who carries on the pastoral industry?", the

answer, of course, has to be the pastoralists. No

doubt, they employ people but equally, no doubt,

they are the people who carry it on. That is all,

I think, I want to say about that.

So far as the use which is made of the research station, it is obvious that its research

activities involve association with other learned

societies, such as the CSIRO and, naturally, one

would expect that. That, of course, does not
diminish the fact that, as Your Honours will see,

for example, pages 245 to 246 of the appeal book -

and I will not read it - the people who are

informed of these research activities are the local
pastoralists and I think I already made that point

and this just happens to be another reference to

it. It is pointless, with great respect, to say

that there could be drivers driving trucks. No

doubt, that is the case but that does not really

bear on the question. If one were to say, "Who

carries on the wool industry?", the answer would be

the wool growers. So, one is always faced with the

question of what use the land is put. I do not

want to say anything further on that point.

Your Honours, my learned friend then referred to section 19 and he said 19(2)(c) uses the words

"community purposes" in its defined sense. Well,
with great respect, that is obviously wrong because

if it is used in the defined sense, it says:

Kidman(2) 61 SIR M. BYERS, QC 6/3/91

for any community purposes of the Aboriginal
community or group for whose benefit the Land

Trust holds the land.

One must say that there is a particular group - in

other words that the insertion of those words "for
the community purpose" means for a particular group
or community or group of the Aboriginal community

or group for whose benefit the land is held and,

clearly, that is not, with great respect, correct.

Your Honours, I do not think I would wish to

say anything more in reply to my learned friend so

far as section 19(2)(b) is concerned. That is

directed in the main to what happens to land that

has become Aboriginal land and that was debated

earlier when I was in-chief where you have

different considerations arising; in other words,

where you are not faced with the question of a use

of land for a community or group which land is not

Aboriginal land at the time of the use.

Can I just say a word or two, Your Honours,

about what my learned friend, Ms Backhouse, says.

Really she says, and I say so with respect, that

the words "community or group" mean Aboriginal

community or group as used later in the complex of

sections. Could one just think of that for moment;

it would mean this, that one would have before the

passing of the Land Titles Act a use of land by the Crown for the benefit of the traditional Aboriginal

owners and other traditional Aboriginal owners who

had a right under Aboriginal law, so you had some

use of that land for the Aboriginal owners, then

the land becomes Aboriginal land.

The use continues and yet the Aboriginal

owners get no title.	The use continues adversely
to them and they get no rental.	So one then

wonders what could be the policy of an Act having

such an apparently strange result, because that

would be the result. So the conclusion, we

respectfully submit, from that is that you do not

read the words "community or group" as Aboriginal
community or group, not only because the words are
not there, but because the context indicates

otherwise.

My learned friend, Ms Backhouse, also said,

"Well, so far as the rental is concerned, what

happens in the case of the use, for lack of a

better word, not being for the particular community

or group, the rental goes to those who have been
benefited". I think Your Honour Mr Justice Deane

pointed out that, in fact, that is not so because

under section 35(4) the rental goes to the

traditional owners and on no view can it be said

Kidman(2) 62 SIR M. BYERS, QC 6/3/91

that the traditional owners consist of that class

comprised in the words "Aboriginal community or

group" where it is used elsewhere in the Act. That

is manifest because they are dealing with what the

land councils may do and by hypothesis in relation

to land within the area of the land council which

may be hundreds of kilometres away from any land

owned by the traditional owners.

So that if one looks to the text one has

positive indications that the submissions made by

my learned friends are not consistent with the

text. Therefore, we would respectfully submit,

that that being so there is no indication in the

text of an intention that the words should be used

contrary to their ordinary, grammatical meaning,

and, that being so, they will be given their
ordinary, grammatical meaning and that is the one

for which we have contended. If the Court pleases.

MASON CJ:  Thank you, Sir Maurice. The Court will consider

its decision in this matter.

AT 2.53 PM THE MATTER WAS ADJOURNED SINE DIE

Kidrnan(2) 63 6/3/91