Northern Territory v Justice H.W. Olney in His Capacity as Aboriginal Land Commissioner and Ors D4/2002

[2003] HCATrans 810

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D4 of 2002

B e t w e e n -

NORTHERN TERRITORY OF AUSTRALIA

Applicant

and

THE HONOURABLE JUSTICE H.W. OLNEY IN HIS CAPACITY AS ABORIGINAL LAND COMMISSIONER

First Respondent

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Second Respondent

TRADITIONAL OWNERS IN THE McARTHUR RIVER REGION CLAIM (CLAIM NO 184) AND PART OF MANANGOORA REGION LAND CLAIM (CLAIM NO 185)

Third Respondent

NORTHERN TERRITORY SEAFOOD COUNCIL INCORPORATE

Fourth Respondent

Office of the Registry
  Darwin  No D5 of 2002

B e t w e e n -

NORTHERN TERRITORY OF AUSTRALIA

Applicant

and

THE HONOURABLE JUSTICE H.W. OLNEY IN HIS CAPACITY AS ABORIGINAL LAND COMMISSIONER

First Respondent

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Second Respondent

TRADITIONAL OWNERS IN THE MARIA ISLAND AND LIMMEN BIGHT RIVER LAND CLAIM (CLAIM NO 71) AND PART OF MARIA ISLAND REGION LAND CLAIM (CLAIM NO 198)

Third Respondent

NORTHERN TERRITORY SEAFOOD COUNCIL INCORPORATE

Fourth Respondent

Office of the Registry
  Darwin  No D6 of 2002

B e t w e e n -

NORTHERN TERRITORY OF AUSTRALIA

Applicant

and

THE HONOURABLE JUSTICE H.W. OLNEY IN HIS CAPACITY AS ABORIGINAL LAND COMMISSIONER

First Respondent

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Second Respondent

TRADITIONAL OWNERS IN THE LORELLA REGION LAND CLAIM (CLAIM NO 199) AND PART OF MARIA ISLAND REGION LAND CLAIM (CLAIM NO 198)

Third Respondent

Applications for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 20 JUNE 2003, AT 12.20 PM

Copyright in the High Court of Australia

__________________

MS R. J. WEBB:   May it please the Court, I appear on behalf of the applicant.  (instructed by the Solicitor for the Northern Territory)

MR J. BASTEN, QC:   May it please the Court, I appear with MR S. A. GLACKEN for the third respondents.  (instructed by the Northern Land Council)

GLEESON CJ:   Just before you begin, there is a certificate from the Deputy Registrar saying that in each of these matters an appearance has been filed on behalf of the first respondent, submitting to the order of the Court save as to costs.  In each of these matters, she holds a letter from Cridlands Lawyers advising that the fourth respondent, the Northern Territory Seafood Council Incorporated, will abide the orders of the Court save as to costs.  In each of these matters, an appearance has been filed on behalf of the second respondent, submitting to the order of the Court save as to costs.  Yes, Ms Webb.

MS WEBB:   Thank you, your Honour. Your Honours, if special leave is granted in this matter, the central issue for consideration by the High Court is whether the principles in section 50(4) of the Aboriginal Land Rights (Northern Territory) Act as to secure occupancy always have a bearing upon whether or not a recommendation for grant will be made, or whether they are only to be taken into account by the Aboriginal Land Commissioner as factors in favour of a grant in limited circumstances, but are silent in other circumstances.

GLEESON CJ:   Where do you say we find the error in the reasoning of the Full Court?

MS WEBB:   The error, your Honour, really is encapsulated at application book page 325 at paragraph 36.  It comes from their Honours’ reliance on Justice Brennan in Meneling, when he is discussing the relationship between Aboriginal people and their country, in Meneling at 357 to 358.  We deal with this error in fact in our written submissions, at application book 344 at paragraphs 24 and 25.  What the Full Court

has done is in fact to confuse two quite distinct concepts, and that is the ascertaining of traditional Aboriginal owners – which is the first step as contemplated in the Land Rights Act, the first function of the Commissioner – and then in fact to interpose and intermix that with the question of whether there is a desire to live on the land and the principles of secure occupancy in section 50(4) can be advanced.

That is seen quite clearly in Justice Brennan’s reasons in Meneling, where in fact Justice Brennan, in respect of section 50(4), relegated it from a matter that the Commissioner “shall have regard to” in making his recommendation to a matter for comment. But not only did Justice Brennan do that in respect of section 50(4), he also did it in respect of the provision in section 50(3), that the Commissioner was to:

have regard to the strength or otherwise of the traditional attachment ‑ 

in making his recommendation.  What Justice Brennan did in Meneling was to put that “shall have regard to” strength of traditional attachment back into part of the finding of whether or not there were traditional Aboriginal owners.

That, of course, is not the approach that was taken by the other judges in Meneling, who were Chief Justice Gibbs; Justice Mason, who, although in dissent in respect of the role of the “comment function” in section 50(3)(a) to (d), was not in dissent in respect of the role that the “shall have regard to” principle played; Justice Wilson, in particular; and then Justice Murphy agreeing with Justice Wilson.  So what has happened is the two concepts of the finding of traditional ownership and the question of, firstly, strength of traditional attachment was pushed back into that finding. 

We say, also, what has happened is that the question as to whether or not the principles in section 50(4) have any bearing on the recommendation has been confused with that as well, because where Justice Brennan starts from is to say, “Once you have a finding of traditional ownership, it inevitably follows that you will have a recommendation for grant”, and that is what underlies the error, we say, in the Full Court here. It is quite a different approach to the approach that has been taken, for example, in Jungarrayi v Olney, in a different Full Federal Court, where there Justices Northrop, Hill and O’Loughlin did separate out those roles and in fact endorsed the approach of Justice Toohey in respect of his steps or the functions that he had to undertake in making a recommendation and making a report.

That is, firstly, a finding of traditional ownership, if there are any. Secondly, to have regard to strength of the traditional attachment as part of the consideration of his recommendation. Thirdly, to have regard to the principles in section 50(4) as part of his recommendation. Then, to make a recommendation, if appropriate, and then to comment on the matters set out in section 50(3) for the consideration of the Minister to decide whether or not to follow the recommendation of the Commissioner. That is where we say the error arises.

So what we have in this case is two quite different approaches to the functions of the Commissioner.  It arises in quite stark reality in this particular case, because what we are dealing with is claims that are made to areas of the inter‑tidal zone between high‑water and low‑water mark along the coast of the Northern Territory, and claims made to the beds and banks of rivers in the Northern Territory, which are not capable of being occupied, not capable of being resided upon.  So they go further than a desire to reside upon ‑ simply not capable of being resided upon ‑ and advancing those principles of secure occupancy – but not only that, they are not part of any other land that can provide secure occupancy.

Now, there already is in the Northern Territory, I am instructed, in the context of the quite extensive land mass that is already Aboriginal land, approximately 70 per cent of the coastline of the Northern Territory comes within that category, where it is in fact granted as Aboriginal land down to low‑water mark, but it is as part of a grant of a larger land mass, so that secure occupancy can be advanced by residents on the adjoining land mass.

The claims that we are dealing with here – there are in fact three claims that are part of a series of claims that run down from the Limmen Bight River to the Queensland border.  In respect of all of those claims, all of them have now been recommended for grant.  Three of them are before your Honours on this application; the other recommendations are subject to proceedings before the Full Federal Court; but there still remain seven other claims of this type in the Northern Territory to be resolved.  I am instructed that they cover, in respect of just the coastline, approximately 20 per cent additional.

So the particular importance for Territorians, including Aboriginal people, that arises in this case – one of the important points is in fact referred to in the High Court in Risk v Northern Territory, where the Court identified the uncertainty in respect of the public right to fish over tidal waters where there is underlying Aboriginal land.  Of course, although Risk v Northern Territory was dealing with land that was seaward of low‑water mark and was permanently covered by water, the inter‑tidal zone, of course, is intermittently covered by water and the bed and banks of rivers are permanently covered by water. 

Again, this same uncertainty as to the public right to fish and the effect of the Aboriginal land regime on that now could be seen to extend potentially to 90 per cent of the coastline of the Northern Territory.  So it is an important issue, and that is why we bring this application to your Honours.

GLEESON CJ:   Thank you.

MS WEBB:   It is a very long‑winded way, your Honour, of answering your Honour’s question, but that is why we are here.  The reason why ‑ if I could perhaps just adopt the words of Justice Kirby in the Risk v Northern Territory special leave application.  What his Honour there said was, the Act: 

is extremely important to all communities in the Northern Territory, including the Aboriginal people. 

It is just one further issue at the boundary and intersection of our law and Aboriginal customary law in the special context of the Northern Territory Act –

and by that his Honour was referring to the Land Rights Act –

and there is a lot of sea land off the Northern Territory and a lot of Aboriginal people and, therefore, on the face of things, it is a matter which engages the attention of this Court. 

Even though this does not raise jurisdictional questions, what it does raise, in the context of inter‑tidal zone in beds and banks, are important questions relevant to the correct approach of the Commissioner to his recommendation function under the Land Rights Act. 

The question centres on section 50(4) and the issues therein, that have been described by Chief Justice Gibbs as “governing principles” in the Land Rights Act, which were to be given weight as a fundamental element in making recommendations under section 50(1)(a)(ii), together with strength of traditional attachment. A decision of this Court is required to resolve differences of opinion as to the application and operation of section 50(4) as to the functions of Aboriginal Land Commissioners. Those differences exist particularly between Justice Toohey and Justice Olney as Aboriginal Land Commissioners, and also between judges of the High Court in R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327.

As I have already indicated, there also appears to be a different approach to the Commissioner’s functions – the recommendation function ‑ that has been taken by two different Full Courts in Jungarrayi v Olney, where the Full Court there adopted and approved the approach of Justice Toohey, which had already been approved by Justice Wilson in Meneling, and the approach of the Full Court in this case.

In essence, the approaches that have been taken to section 50(4) by Justice Toohey as Aboriginal Land Commissioner and by Chief Justice Gibbs, Justice Mason, Justice Wilson and Justice Murphy agreeing with Justice Wilson in Meneling are consistent with and support the following position. That is, firstly, the Commissioner is required to have regard to the principles of secure occupancy set out in section 50(4) in deciding whether to make a recommendation for the grant of Aboriginal land to a land trust.

Any recommendation for grant either will or will not advance secure occupancy.  As a result, the principles will always apply, so it can never said that they have no bearing on the Land Commissioner’s recommendation function.  That is in fact what the Commissioner did in this case.  In all three matters, he said, “Because there is no desire to live on the land – indeed, it cannot be lived on – it has no bearing on any of my functions”, and we are particularly concerned with the recommendation function.

A finding that there is no desire of traditional owners to live on traditional land, or, indeed, that it cannot be lived on, might lead to the result that the granting of land will not be made.  It is always a relevant factor to be taken into account, and that is in the same way as in Jungarrayi v Olney.  The Full Federal Court held that a finding that traditional owners had little or no attachment to land may result in the Commissioner being constrained not to make a recommendation for grant.

Perhaps, your Honours, before I go on – I have set out in our written submissions the references in Meneling which support that proposition.  They are at application book 345, paragraph 31 and footnote 44, but what I would like to draw your Honours’ attention to and read to you is from Justice Wilson at page 349 point 3 in Meneling, where what his Honour said was:

It is consistent with that recognition –

and that is of the political character of the decision to grant traditional Aboriginal land –

to require the Commissioner to determine judicially the existence of traditional owners and the strength of their attachment and then, applying the principles stated in s. 50(4), to make recommendations for the granting of the land claimed or any part of it. Those matters, and hence the recommendation, determine whether any grant at all can be made.

Justice Wilson, also, at page 347 sets out with approval Justice Toohey’s summary of his functions that came from the Borroloola land claim report.

That was the approach that Justice Toohey followed in Borroloola Land Claim (No 1), where he did not recommend certain areas of land for grant where there was no evidence of a desire to live on the land, even though the land in that case was capable of being resided upon.  So it is clear from that report that Justice Toohey as Land Commissioner considered that a finding of traditional ownership does not mandate a positive recommendation for grant and that an absence of desire to live on traditional country is a relevant consideration which may lead to a decision that a recommendation for grant will not be made.

It is that separate approach that was applied by Justices Northrop, Hill and O’Loughlin in Jungarrayi v Olney, in respect of the consideration of the requirement in section 50(3) to have regard to strength of traditional attachment. In the same way as a lack of strength of traditional attachment might lead to a negative recommendation, we say, so too might the principles in section 50(4). That is, if secure occupancy would not be advanced by a grant, there might be circumstances where a recommendation for grant might not be made.

Now, the contrary approach is that of Chief Justice Black, Justices French and Nicholson, endorsing what Justice Olney did in these matters, and relying very heavily on Justice Brennan in Meneling. In summary, that approach is to say, the principles in section 50(4) do not limit or inhibit the Commissioner’s functions under the Land Rights Act; they do no more than require the Commissioner to take into account the principles as factors in favour of a grant where circumstances to which the principles apply exist and are otherwise silent.

I have already discussed why Justice Brennan’s approach in Meneling is flawed and has not been followed.  What we do have here is an approach that has now been taken that seems to rely very heavily on that particular approach.  It is this difference of opinion that really is the issue that needs to be decided by this Court.

There is one further thing, and that is that the approach of the Full Court and the Commissioner goes even further than Justice Brennan’s

approach in Meneling. Even in Justice Brennan’s approach, he did say the principles in section 50(4) were to be taken into account and commented upon, if not as part of the recommendation, as part of the comment factor ‑ which is not the approach taken by other judges – but in that case there would still have been something in the report for the Minister to have regard to. On this approach, it is put to one side – “You cannot live on it, there is no desire to live on it, I do not have to do anything about it” – and so the Minister is deprived even of the Commissioner’s comment.

In conclusion, this is not a mere technical issue of interpretation of a statute.  It is an important issue for the Territory communities at large, including Aboriginal people, and what it does is it goes to identifying and giving real effect to a fundamental element of the Land Rights Act that is contained in section 50(4). It has been a troublesome provision and it needs clarification. If your Honours please.

GLEESON CJ:   Thank you.  We do not need to hear you, Mr Basten. 

The Court is of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave in each of these cases and in each case the application is refused with costs. 

AT 12.41 PM THE MATTERS WERE CONCLUDED