JANICE PAREROULTJA; DULCIE JAKKADAI; ELFREIDA UNGWANAKA and MAGDELINE
UNGWANAKA v. ROBERT TICKNER; KUNMANARA BREADEN and MAX STUART
No. G40 of 1993
FED No. 654
Number of pages - 20
Aboriginal Land Rights
(1993) 117 ALR 206
(1993) 42 FCR 32
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
LOCKHART(1), O'LOUGHLIN(2) and WHITLAM(3) JJ
CATCHWORDS
Aboriginal Land Rights - Mabo v The State of Queensland (No 2) discussed - whether Land Rights Act permits a grant of land to a Land Trust in respect of which there is valid and subsisting native title - whether the grant of land to a Land Trust under the Land Rights Act extinguishes native title in respect of that land - whether grant of land to a Land Trust is inconsistent with Racial Discrimination Act.
HEARING
SYDNEY, 1 and 2 June 1993
#DATE 20:9:1993
Counsel for the Applicants: A J Sullivan QC, C McDonald
and L H Delaney
Solicitors for the Applicants: James Noonan
Counsel for First Respondent: I Barker QC, L Katz and E Willheim
Solicitors for First Respondent: Australian Government Solicitor
Counsel for Second Respondent: J J Spigelman QC and T F Robertson
Solicitors for Second Respondent: Goddard Dean and Co
ORDER
THE COURT answers the questions raised in the Stated Case as follows:
Question 1
1. For the purpose of s. 9(1) of the Racial Discrimination Act 1975 would
a grant of land under s. 12(1)(a) of the Aboriginal Land Rights (Northern Territory) Act 1976 to a
Land Trust, the Aboriginals for whose benefit such land would be held by such Trust being immediately before such grant entitled to rights and privileges in relation to the land under native title and some of them not consenting to such grant, amount to the doing of an act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which had the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life?
Answer: No
Question 2
2. For the purpose of s. 10(1) of the Racial Discrimination Act 1975, is
the Aboriginal Land Rights (Northern Territory) Act 1975 a law by reason of which persons of a
particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin or a law by reason of which persons of a particular race, colour or national or ethnic origin enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin?
Answer: No
Question 3
3. If the answer to either of the preceding two questions is in the
affirmative, for the purpose of s. 8(1) of the Racial Discrimination Act 1975, is the
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- AGLC
- Pareroultja, J. & Ors v. Tickner, R. & Ors [1993] FCA 654 ((1993) 117 ALR 206; (1993) 42 FCR 32)
- Case
- [1993] FCA 654
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether a grant of land to a Land Trust under the ALRA, without the consent of all native title holders, amounted to racial discrimination as per the RDA, and whether such a grant would extinguish native title. The court had to determine whether the provisions of the ALRA were consistent with the RDA, and if the grant of land would nullify or impair the rights of native title holders.
The court found that a grant of land to a Land Trust under the ALRA did not constitute racial discrimination under the RDA. The court reasoned that the ALRA was designed to address historical injustices and provide specific rights to Aboriginal people, and therefore, it did not involve a distinction, exclusion, restriction, or preference based on race. Additionally, the court held that the grant of land to a Land Trust did not extinguish native title. The court concluded that the ALRA did not intend to extinguish native title but rather to provide a mechanism for land management that could coexist with native title rights. Consequently, the court determined that the grant of land without the consent of all native title holders was not unlawful.
The court's orders confirmed that the grant of land under the ALRA did not contravene the RDA and did not extinguish native title. The court also ruled that there would be no order as to costs.
Orders
Orders of the court
THE COURT answers the questions raised in the Stated Case as follows:
Question 1
1. For the purpose of s. 9(1) of the Racial Discrimination Act 1975 would
a grant of land under s. 12(1)(a) of the Aboriginal Land Rights (Northern Territory) Act 1976 to a
Land Trust, the Aboriginals for whose benefit such land would be held by such Trust being immediately before such grant entitled to rights and privileges in relation to the land under native title and some of them not consenting to such grant, amount to the doing of an act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which had the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life?
Answer: No
Question 2
2. For the purpose of s. 10(1) of the Racial Discrimination Act 1975, is
the Aboriginal Land Rights (Northern Territory) Act 1975 a law by reason of which persons of a
particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin or a law by reason of which persons of a particular race, colour or national or ethnic origin enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin?
Answer: No
Question 3
3. If the answer to either of the preceding two questions is in the
affirmative, for the purpose of s. 8(1) of the Racial Discrimination Act 1975, is the Aboriginal Land Rights (Northern Territory) Act 1976 a
special - 3 - measure to which para. 4 of Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination applies?
Answer:
If the answer to either of the preceding two questions had been in
the affirmative, this question would have been answered, yes. Question 4:
4. If the answer to the preceding question is in the affirmative, for
the purpose of s. 8(1) of the Racial Discrimination Act 1975, is the Aboriginal Land Rights (Northern Territory) Act 1976 a measure in relation to which s. 10(1) of the
Racial Discrimination Act applies by virtue of sub-section 10(3) of the Racial Discrimination Act 1975?
Answer:
This question does not arise.
Question 5
5. Is a grant of the Land pursuant to the provisions of the
Aboriginal Land Rights (North Territory) Act 1976 without the consent of the holders of the native title unlawful?
Answer: No.
THE COURT ORDERS THAT there should be no order as to costs of any party of the Stated Case.
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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