Re: GEORGE BROWN JUNGARRAYI; GEOFFREY TAYLOR JAPANGARDI; TASMAN CASSON
JAPANANGKA and DICK RILEY JAPANANGKA
And: THE HON. HOWARD WILLIAM OLNEY, ABORIGINAL LAND COMMISSIONER and THE
ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA
No. V G82 of 1991
FED No. 73
Aboriginals - Administrative Law
105 ALR 527
(1992) 34 FCR 496
(1992) 26 ALD 390
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Northrop(1), Hill(1) and O'Loughlin(1) JJ.
CATCHWORDS
Aboriginals - Aboriginal Land Rights (Northern Territory) Act - "strength or otherwise of the traditional attachment" by claimants to land - whether an ingredient in the definition of traditional Aboriginal owners - repeat land claim - question whether "it is likely" that the Commissioner will find that the applicants or specified Aboriginals are the traditional Aboriginal owners of land - meaning of "it is likely".
Administrative Law - Administrative Decisions (Judicial Review) Act - whether errors of law - whether errors influenced outcome.
Administrative Decisions (Judicial Review) Act 1977: s.5(1)
Aboriginal Land Rights (Northern Territory) Act 1976 ss.3(1), 50(1), 50(2A), 50(2B), 50(3), 50(4)
The Queen v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327
Bayer Products, Ltd's Application (1947) 2 All ER 188
Australian Telecommunications Commission v Krieg Enterprises Pty Ltd (1976) 14 SASR303
Sheen v Fields Pty Ltd (1983-84) 51 ALR 345
Radio 2UE Sydney Ptd Ltd v Stereo FM Pty Ltd (1982) 44 ALR 557
The Queen v Kearney: Ex parte Jurlama (1984) 158 CLR 426
HEARING
SYDNEY
#DATE 27:2:1992
Counsel for the Applicants: Mr K.R. Howie and Mr T.P. Keely instructed
by Mr David Avery of the Central Land Council
Counsel for the Second
Respondent: Mr T. Pauling QC and Mr V. Hughston
instructed by the Solicitor for the Northern Territory
ORDER
The decision of the Aboriginal Land Commission be set aside.
The matter be referred to an Aboriginal Land Commissioner for determination in accordance with law.
The second respondent to pay the costs of the applicants.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
JUDGE1
This application for judicial review pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") of a decision made by the first respondent ("the Commissioner") the then Aboriginal Land Commissioner appointed pursuant to s.52(1) of the Aboriginal Land Rights (Northern Territory) Act 1976 ("the Act") was heard immediately after the conclusion of the hearing of Northern Land Council v Olney ("the Kenbi Land Claim"). In each case, the court was constituted by the same three judges. In each case the same counsel appeared for the Attorney-General for the Northern Territory of Australia who opposed the orders being claimed. Counsel leading for the applicants in the present case ("the Kanturrpa Repeat Land Claim") appeared for the Central Land Council in the Kenbi Land Claim and was…
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- AGLC
- Jungarrayi, G.B. & ors Olney J. , Aboriginal Land Commissioner & anor [1992] FCA 73 (105 ALR 527; (1992) 34 FCR 496; (1992) 26 ALD 390)
- Case
- [1992] FCA 73
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the "strength or otherwise of the traditional attachment" by the claimants to the land was an essential element in determining their status as traditional Aboriginal owners under the Act. Additionally, the court had to interpret the phrase "it is likely" in the context of the likelihood that the Commissioner would find the applicants or specified Aboriginals to be the traditional Aboriginal owners of the land. The interpretation of these terms was pivotal in deciding the validity of the applicants' claim and the subsequent dismissal by the Commission.
The court held that the determination of whether the applicants were traditional Aboriginal owners required consideration of the strength of their traditional attachment to the land. The court emphasised that this factor was integral to the definition of traditional Aboriginal owners under the Act. Furthermore, the court found that the term "it is likely" should be interpreted in a manner that reflected a substantial probability, rather than a mere possibility, that the Commissioner would find in favour of the applicants. Given these findings, the court concluded that the Aboriginal Land Commission had erred in law by not adequately considering the strength of the traditional attachment and by misinterpreting the term "it is likely". Consequently, the decision of the Commission was set aside, and the matter was referred back to an Aboriginal Land Commissioner for redetermination in accordance with law.
In its orders, the court set aside the decision of the Aboriginal Land Commission, directing that the matter be remitted to a Commissioner for a new determination. The court also ordered that the second respondent was to bear the costs of the applicants. This decision ensures that the applicants' claim will be reconsidered with the proper legal framework in mind, providing them with an opportunity to adequately present their case.
Orders
Orders of the court
The decision of the Aboriginal Land Commission be set aside.
The matter be referred to an Aboriginal Land Commissioner for determination in accordance with law.
The second respondent to pay the costs of the applicants.
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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