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Northern Land Council v Olney

Northern Land Council v Olney

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Case Copied 27 February 1992 45 min read

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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…

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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Details

Case: [1992] FCA 72
Decision Date: 27 FEBRUARY 1992

CaseChat Overview and Summary

In the Federal Court, the Northern Land Council, on behalf of Aboriginals, challenged the decision of an Aboriginal Land Commissioner regarding the definition of "traditional Aboriginal owners" under the Aboriginal Land Rights (Northern Territory) Act. The dispute centred around the interpretation of the term and whether the Commissioner had properly assessed the existence of traditional Aboriginal groups and their connection to the land. The court was tasked with determining whether the local descent group should be limited to a patrilineal clan, whether an individual can constitute a group, whether the Commissioner had a duty to investigate other groups besides those named by the claimants, and the relevance of the claimants' spiritual affiliation with other sites.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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