Constitutional Law (Cth)—Inconsistency between Commonwealth and State laws—Commonwealth Act prohibiting racial discrimination—Special measures for securing adequate advancement of certain racial groups deemed not racial discrimination—State Act granting tract of land to people of particular Aboriginal group—Prohibition of entry by other persons—Whether inconsistency—Whether State Act a "special measure"—The Constitution (63 &64 Vict. c. 12), s. 109—Racial Discrimination Act 1975 (Cth), ss. 9, 10—Pitjantjatjara Land Rights Act 1981 (S.A.), ss. 18, 19.
Decisions
GIBBS C.J. The question for decision in this case is whether s.19 of the Pitjantjatjara Land Rights Act 1981 (S.A.) ("the Act") is rendered invalid or otherwise affected by the Racial Discrimination Act 1975 (Cth) as amended ("the Racial Discrimination Act"). The main purpose of the Act was to vest the title to a large tract of land in the north west of South Australia in the Aboriginal peoples who are said to be its traditional owners. The area in question is called in the Act "the lands", an expression which is defined by s.4 to mean the lands described in the first schedule. Those lands, we are told, comprise an area of 102,630 square kilometres - i.e., more than one-tenth of the total land area of South Australia which is 984,377 square kilometres. The area is sparsely populated. According to the report made by the Pitjantjatjara Land Rights Working Party of South Australia in June 1978, the Aboriginal people who live in the area, about 2,000 in number, fall into three main groups, apparently distinguished by language or dialect. Those groups, the Ngaanatjara, the Pitjantjatjara and the Yungkutatjara, are associated with different areas within the lands but tend to see themselves as broadly related. The Act embraces all three groups under one name, for by s.4 "Pitjantjatjara" means:
"a person who is -
(a) a member of the Pitjantjatjara, Yungkutatjara or Ngaanatjara people;
and
(b) a traditional owner of the lands, or a part of them".
With regard to the concluding words of this definition, it is strongly suggested by the report that none of the "Pitjantjatjara", as defined, were the traditional owners of all the lands; in other words, some were the traditional owners of some areas and others of other areas, although the areas with which the various groups were associated are not capable of being precisely defined. There is, however, no evidence or clear agreed statement before us in relation to these matters. The lands comprised a declared Aboriginal reserve (the North West Reserve) and a number of pastoral leases, some at least of which related to a property known as Granite Downs Station. The material before us does not make it clear whether any person other than Pitjantjatjaras resided on the lands besides those who may have lived on Granite Downs and a precious stones field at Mintabie. There were at…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Gerhardy v Brown [1985] HCA 11
Case
[1985] HCA 11
Decision Date
CaseChat Overview and Summary
In *Gerhardy v Brown*, the High Court of Australia considered a dispute between the appellants, who were Aboriginal people, and the respondent, the Director of the South Australian Department of Aboriginal Affairs. The appellants sought to prevent the respondent from granting a lease over land at Raukkan, South Australia, which they claimed was their traditional country. The appellants argued that the proposed lease would interfere with their rights and interests in the land, including their spiritual connection and their ability to use it for traditional purposes.
The central legal issue before the High Court was whether the appellants possessed native title rights and interests in the land at Raukkan, and if so, whether these rights were extinguished by the Crown's grant of a pastoral lease in 1909. The court was required to determine the nature and extent of any native title that might have existed at the time of the grant and the legal effect of that grant on such rights. A further issue concerned the interpretation and application of the *Aboriginal Lands Trust Act 1966* (SA) and its predecessor legislation in relation to the land in question.
The High Court, in a majority decision, held that the grant of the pastoral lease in 1909 had the effect of extinguishing any native title rights that may have existed over the land. The court reasoned that the grant of a lease conferring exclusive possession on the lessee was inconsistent with the continued existence of native title. Therefore, the appellants' claim that they retained native title rights was dismissed. The court also considered the historical context of the land's management and the legislative framework governing Aboriginal lands in South Australia, concluding that the land was held by the Aboriginal Lands Trust for the benefit of Aboriginal people, but this did not revive or create native title.