Re: NORTHERN LAND COUNCIL; TIBBY QUALL and CENTRAL LAND COUNCIL
And: THE HONOURABLE JUSTICE OLNEY, ABORIGINAL LAND COMMISSIONER and THE
ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY
No. V G79 of 1991
FED No. 72
Aboriginals - Administrative Law
105 ALR 539
(1992) 34 FCR 470
(1992) 26 ALD 371 (extracts)
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 - definition of traditional Aboriginal owners - relevance of Aboriginal concepts - whether local descent group confined to patrilineal clan - whether one person can constitute a group - whether Commissioner has duty to investigate existence of groups other than claimants - whether strength of claimants' traditional attachment to land relevant - whether claimants' spiritual affiliation with other sites relevant.
Administrative Law - Administrative Decisions (Judicial Review) Act - whether error of law - whether error influenced outcome.
Administrative Decisions (Judicial Review) Act 1977: s.5(1)
Aboriginal Land Rights (Northern Territory) Act 1976: ss.3(1), 50(3), 50(1)(a), 50(3) and 50(4).
R v Kearney; Ex parte Jurlama (1984) 158 CLR 426
R v Toohey; Ex parte Meneling Station Pty Limited (1982) 158 CLR 327
R v Kearney; Ex parte Northern Land Council (1984) 158 CLR 365
R v Toohey; Ex parte The Attorney-General for the Northern Territory of Australia (1980) 145 CLR 374
Attorney-General for the Northern Territory v Hand (1989) 25 FCR 345
Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141
HEARING
SYDNEY (HEARD IN DARWIN)
#DATE 27:2:1992
Counsel and Solicitors
for First Applicant: Mr J.L. Sher QC and Mr D.A. Parsons
instructed by Mr Brett Midena of the Northern Land Council
Counsel and Solicitors
for Second Applicant: Mr K.R. Howie instructed by
Waters, James and McCormack
Counsel and Solicitors
for Third Applicant: Mr K.R. Howie instructed by
Mr David Avery of the Central Land Council
Counsel and Solicitors
for 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 Commissioner be set aside.
The matter be referred to an Aboriginal Land Commissioner for determination in accordance with law.
The second respondent pay the costs of the first and second applicants.
There be no order as to costs as to the third applicant and the first respondent.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
The applicants apply to the Court 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").
The controversy between the parties arises out of a claim made on behalf of various Aboriginal people by the first applicant, the Northern Land Council ("the Council") a body corporate established pursuant to s.21 of the Act, to land on the…
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- Case
- [1992] FCA 72
- Decision Date
CaseChat Overview and Summary
The legal issues before the court involved interpreting statutory provisions concerning traditional Aboriginal ownership. The court had to examine whether the definition of "traditional Aboriginal owners" required adherence to a specific descent model and whether the Commissioner's failure to consider other potential groups was an error of law. Additionally, the court needed to decide if the strength of the claimants' traditional attachment to the land and their spiritual connection to other sites were pertinent factors in the assessment. The court also had to consider whether the Commissioner was obligated to investigate the existence of groups other than those presented by the claimants.
The court found that the Commissioner had misconstrued the definition of "traditional Aboriginal owners" by not recognising the possibility of a local descent group not strictly adhering to a patrilineal clan structure. It was determined that a single individual could constitute a group, and the Commissioner had an obligation to investigate other potential groups, not merely those proposed by the claimants. The court held that the strength of the claimants' traditional attachment to the land and their spiritual connection to other sites were relevant considerations. Consequently, the court set aside the Commissioner's decision and referred the matter back to an Aboriginal Land Commissioner for reassessment in accordance with the law.
The court ordered that the decision of the Aboriginal Land Commissioner be set aside, and the matter be referred to a different Commissioner for re-evaluation. The second respondent was directed to pay the costs of the first and second applicants. There was no order as to costs concerning the third applicant and the first respondent.
Orders
Orders of the court
The decision of the Aboriginal Land Commissioner be set aside.
The matter be referred to an Aboriginal Land Commissioner for determination in accordance with law.
The second respondent pay the costs of the first and second applicants.
There be no order as to costs as to the third applicant and the first respondent.
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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