Re: THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA
And: THE HONOURABLE HOWARD WILLIAM OLNEY, ABORIGINAL LAND COMMISSIONER
and THE NORTHERN LAND COUNCIL
No. NG 1439 of 1988
FED No. 325
Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Morling(1), Wilcox(1) and Von Doussa(1) JJ.
CATCHWORDS
Administrative Law - Aboriginal land rights - Land available for claim - "Unalienated Crown land" - Regulations extending defined "towns" under Town Planning Act 1964 (NT) - Effect of regulations to exclude land from a land claim - Validity of regulations - Purpose for which regulations made - Distinction between primary purpose and secondary, or consequential, purpose - Proper analysis of Aboriginal Land Commissioner's findings as to purpose - Whether regional planning was a purpose within the scope and purpose of the Town Planning Act - Whether control of rural lands was such a purpose.
Aboriginal Land Rights (Northern Territory) Act 1976 ss.3, 50.
Town Planning Act 1964 (NT) ss.5, 73.
HEARING
SYDNEY
#DATE 28:6:1989
Counsel for the Applicant: Mr D M J Bennett QC with Mr D Barrett
Solicitors for the Applicant: Freehill, Hollingdale & Page
No appearance for the First Respondent
Counsel for the Second Respondent: Mr F X Costigan QC with Mr R Howie
Solicitor for the Second Respondent: Mr I Gray, Northern Land Council
ORDER
The Application be dismissed.
The applicant pay to the second respondent its costs of the proceedings.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This is an application, brought by the Attorney-General for the Northern Territory of Australia pursuant to the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act"). The application seeks review of a decision made by the first respondent, Olney J, sitting as the Aboriginal Land Commissioner appointed under the Aboriginal Land Rights (Northern Territory) Act 1976 ("the Land Rights Act"), and concerning the validity of certain regulations made by the Administrator of the Northern Territory in reliance upon the provisions of the Town Planning Act 1964 (NT) ("the Town Planning Act"). The Northern Land Council, the applicant before the Commissioner, is the second respondent in the present proceeding. Pursuant to s.20(2) of the Federal Court of Australia Act 1976, the jurisdiction of this Court under the Judicial Review Act is being exercised by a Full Court. An application for prerogative relief has been joined with the application under the Judicial Review Act.
Background
On 20 March 1979 the Northern Land Council, on behalf of certain Aboriginals, made a claim under the Land Rights Act to a significant part of the Cox Peninsula, near Darwin, in the Northern Territory. That claim has become known as the Kenbi (Cox Peninsula) Land Claim. Its determination has been delayed by many vicissitudes, including litigation on preliminary matters: see The Queen v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170; Attorney-General for the Northern Territory v Kearney (1985) 158 CLR 500; R v…
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- AGLC
- In the matter of the Kenbi (Cox Peninsula) Land Claim The Attorney-General for the Northern Territory of Australia v. The Honourable H.W. Olney, Aboriginal Land Commissioner & Anor [1989] FCA 325
- Case
- [1989] FCA 325
- Decision Date
CaseChat Overview and Summary
The legal issues at hand required the court to determine the validity of the regulations and the purpose for which they were made. It was essential to discern whether the regulations were within the scope and purpose of the Town Planning Act. Furthermore, the court needed to establish whether regional planning or control of rural lands constituted a purpose within the legislative framework. The court also had to consider the distinction between the primary purpose of the regulations and any secondary or consequential purposes that might arise.
In its reasoning, the court held that the regulations were valid and that the primary purpose of these regulations was indeed regional planning. However, the court found that the control of rural lands was not within the scope and purpose of the Town Planning Act. The court determined that the Aboriginal Land Commissioner had properly analysed the findings concerning the purpose of the regulations. Consequently, the application was dismissed, and the applicant was ordered to pay the costs of the proceedings to the second respondent.
The final orders of the court were that the application be dismissed, and the applicant was to pay the second respondent's costs of the proceedings. This decision followed the procedures outlined in Order 36 of the Federal Court Rules for the settlement and entry of orders.
Orders
Orders of the court
The Application be dismissed.
The applicant pay to the second respondent its costs of the proceedings.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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