Jungarrayi v Olney

Case [1992] FCA 73


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

Transport Ministry v Simmonds (1973) 1 NZLR 359

Australian Telecommunications Commission v Krieg Enterprises Pty Ltd (1976) 14 SASR303

Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union and Others (1979) 27 ALR 367

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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Details
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 Federal Court of Australia heard an appeal by Jungarrayi against the decision of the Aboriginal Land Commission which dismissed the applicants' claim for recognition as traditional Aboriginal owners of certain land in the Northern Territory. The applicants, being Aboriginals, sought to assert their rights under the Aboriginal Land Rights (Northern Territory) Act. They argued that they had a traditional attachment to the land, which was a critical factor in their claim. The respondents, including the Aboriginal Land Commission, contested the applicants' claim, asserting that they did not meet the necessary criteria to be recognised as traditional Aboriginal owners.

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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