Re: DAISY MAJAR on behalf of herself and on behalf of others of the Werat Clan
and MARGARET DAIYI on behalf of herself and on behalf of others of the
Maranunggu Clan
And: THE NORTHERN LAND COUNCIL
No. NT G11 of 1987
FED No. 317
Aboriginal Land Rights (NT) - Administrative Law
(1991) 37 FCR 117
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Olney J.(1)
CATCHWORDS
Aboriginal Land Rights (NT) - traditional land claim - Aboriginal land - whether claim to be recognised as traditional Aboriginal owners of Aboriginal land is a traditional land claim - duty of land council to assist Aboriginals claiming to have traditional land claim
Administrative Law - judicial review - decision by land council not to recognise claimants as traditional Aboriginal owners of Aboriginal land - refusal of land council to assist claimants to present their claim - breach of rules of natural justice
Aboriginal Land Rights (Northern Territory) Act 1976, ss. 3(1), 23(1)(f), 24, 27, 50(1)(a)
Acts Interpretation Act 1901, s. 15AB
HEARING
DARWIN
#DATE 23:5:1991
Counsel for applicants: Mr P. Bracher
Solicitors for applicants: McCormack and Co.
Counsel for respondent: Mr S. McLaughlin
Solicitor for respondent: Senior Legal Adviser, Northern Land Council
ORDER
That the decision of the respondent on 16 October 1986 be set aside as from the date of this order.
That the matter to which the decision relates be referred back to the respondent for further consideration.
That pursuant to paragraph 23(1)(f) of the Aboriginal Land Rights (Northern Territory) Act 1976 the respondent assist the applicants in pursuing their claim to a traditional land claim to the land referred to in the decision set aside.
That the respondent pay the costs of the applicants including any reserved costs to be taxed in default of agreement.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
The Aboriginal Land Rights (Northern Territory) Act 1976 (the Land Rights Act) is "(a)n Act providing for the granting of traditional Aboriginal land in the Northern Territory for the benefit of Aboriginals, and for other purposes".
In moving the second reading of the Bill which, with some amendments, later became the Land Rights Act the then Minister for Aboriginal Affairs (Mr Viner) said:
Most of us now appreciate more sensitively than in the past that traditional Aborigines think, feel and act about land according to a plan of life a world apart from ours. Traditional Aborigines associate identifiable groups of people with particular 'countries' or tracts of territory in such a way that the link was publicly reputed to express both spiritual and physical communication between living people and their 'dream time' ancestors and between the 'country' as it now is and the 'ancestral' country which had been given its names, its physical features, its founding stocks of food…
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- AGLC
- Majar, D. & Ors v. Northern Land Council [1991] FCA 317 ((1991) 37 FCR 117)
- Case
- [1991] FCA 317
- Decision Date
CaseChat Overview and Summary
The central legal issues in this case were whether the applicants' claim to be recognised as traditional Aboriginal owners of the land in question constituted a traditional land claim under the Aboriginal Land Rights (Northern Territory) Act 1976 and whether the Commissioner had a duty to assist the applicants in pursuing their claim. The applicants argued that the Commissioner's refusal to recognise their claim as a traditional land claim was an error of law and that the Commissioner had a duty to assist them in their pursuit of the claim.
The court found that the Commissioner's decision to not recognise the applicants' claim as a traditional land claim was indeed an error of law. The court held that the applicants' claim was a traditional land claim, as it involved a connection to the land through traditional laws and customs. Furthermore, the court determined that the Commissioner had a duty to assist the applicants in pursuing their claim, and this duty was not discharged by the Commissioner. Consequently, the court ordered that the Commissioner's decision be set aside, and the matter be referred back to the Commissioner for further consideration. The court also directed the Commissioner to assist the applicants in pursuing their traditional land claim and ordered the Commissioner to pay the applicants' costs.
Orders
Orders of the court
That the decision of the respondent on 16 October 1986 be set aside as from the date of this order.
That the matter to which the decision relates be referred back to the respondent for further consideration.
That pursuant to paragraph 23(1)(f) of the Aboriginal Land Rights (Northern Territory) Act 1976 the respondent assist the applicants in pursuing their claim to a traditional land claim to the land referred to in the decision set aside.
That the respondent pay the costs of the applicants including any reserved costs to be taxed in default of agreement.
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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