R v Kearney; Ex parte Northern Land Council

[1984] HCA 15

HIGH COURT OF AUSTRALIA

Gibbs C.J., Murphy, Wilson, Brennan and Deane JJ.

THE QUEEN v. KEARNEY; Ex parte NORTHERN LAND COUNCIL

(1984) 158 CLR 365

23 March 1984

Aboriginal Lands

Aboriginal Lands—Traditional land claim—Unalienated Crown land—Application to Aboriginal Land Commissioner—Land ceasing to be unalienated Crown land—Jurisdiction of Commissioner—Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), ss. 3(1) "Crown land" 11, 12, 50(1)(a).

Decisions

1984, March 23.
The following written judgments were delivered:-
GIBBS C.J. The application for mandamus made by the Northern Land Council in the present case raises for decision two related questions, viz., whether, when an application has been made to the Aboriginal Land Commissioner under s. 50(1)(a) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), as amended, ("the Land Rights Act") on behalf of Aboriginals claiming to have a traditional land claim to certain areas of unalienated Crown land, it remains possible to exercise the powers given by the Planning Act 1979 (N.T.), as amended, to make regulations which specify that land, including some of the areas in respect of which the claim has been made, is to be treated as a town, and, if so, whether the Commissioner may and should continue to inquire and report in respect of those areas which have, in consequence, become land in a town within the meaning of the Land Rights Act. (at p369)

2. The provisions of the Land Rights Act have been discussed in a number of decisions of this Court: Reg. v. Toohey; Ex parte Attorney-General (N.T.) (1980) 145 CLR 374; Reg. v. Toohey; Ex parte Northern Land Council (1981) 151 CLR 170; Reg. v. Toohey; Ex parte Meneling Station Pty. Ltd. 158 CLR 326; In re Toohey; Ex parte Stantion (1982) 57 ALJR 73; 44 ALR 94. Section 50(1)(a) provides as follows:

"The functions of the Commissioner are -

(a) on an application being made to the Commissioner by or on behalf of Aboriginals claiming to have a traditional land claim to an area of land, being unalienated Crown land or alienated Crown land in which all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals -

(i) to ascertain whether those Aboriginals or any other Aboriginals are the traditional Aboriginal owners of the land; and

(ii) to report his findings to the Minister and to the Administrator of the Northern Territory, and, where he finds that there are Aboriginals who are the traditional Aboriginal owners of the land, to make recommendations to the Minister for the granting of the land or any part of the land in accordance with sections 11 and 12."

Section 11(1) provides inter alia that where the Commissioner recommends to the Minister in a report made to him under s. 50(1)(a) "that an area of Crown land should be granted to a Land Trust for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of that area of land" (par. (a)), and the Minister is satisfied that the land, or a part of it, should be granted to a Land Trust, or that different parts of the land should be granted to different Land Trusts (par. (b)), the Minister shall establish a Land Trust or Land Trusts as the case may be to hold the land or the part or parts of it for the benefit of the relevant Aboriginals (par. (c)), and shall:

"(d) where land in respect of which a Land Trust has been or is proposed to be established in accordance with paragraph

(c) is, or includes, alienated Crown land, ensure that the estates and interests in that land of persons (other than the Crown) are acquired by the Crown by surrender or otherwise; and

(e) after any acquisition referred to in paragraph (d) has been effected in relation to land and a Land Trust has been established in accordance with paragraph (c) in respect of that land, recommend to the Governor-General that a grant of an estate in fee simple in that land be made to that Land Trust."

It was held in Reg. v. Toohey; Ex parte Meneling Station Pty. Ltd. that the Minister, in determining under s. 11 whether he is satisfied that land should be granted, is not bound by the recommendation of the Commissioner. If the Minister does make a recommendation to the Governor-General under s. 11, the Governor-General may execute a deed of grant of an estate in the land in accordance with the recommendation and deliver it to the grantee: s. 12(1)(a). (at p371)

3. It cannot be doubted that the Commissioner is bound to exercise the functions conferred on him by s. 50(1)(a) once a proper application has been made, assuming that the land in respect of which the application has been made continues to be "unalienated Crown land" or "alienated Crown land in which all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals". The definitions contained in s. 3(1) of the Land Rights Act show that land in a town is not either "alienated Crown land" or "unalienated Crown land" within the meaning of the Lands Rights Act, although it may be "Crown land" within the meaning of that Act. (at p371)

4. The present case concerns two areas of land near Katherine. When the application dated 30 March 1978 was made, those areas were "unalienated Crown land" within the meaning of the Land Rights Act, and the application was competent with respect to them. However, by reg. 5 of the Planning Regulations, which took effect on 3 August 1979, it was provided that "the several areas of land specified in Schedule 3 are specified as areas which are to be treated as towns". Part IV of the schedule described an area of 650 square kilometres near Katherine, and the area so described included the two areas now in question. If the Regulations were valid, their effect was that each of those areas became a "town" within the meaning of the Planning Act (see the definition of "town" in s. 4(1)) and within the meaning of the Land Rights Act: see Reg. v. Toohey; Ex parte Northern Land Council (1981) 151 CLR, at pp 181-182, 200-202, 275-277. (The Town Planning Regulations, made on 22 December 1978 under the Town Planning Ordinance (N.T.), which was repealed by the Planning Act, may have earlier brought about the same result, but it is unnecessary to consider that question.) Assuming that the Planning Regulations were validly made, their effect therefore is that the two areas in question ceased to be "unalienated Crown land" within the meaning of the Land Rights Act. The questions that then arise are whether the mere fact that an application is made under s. 50(1)(a) prevents anything from being done which would take the land out of the class of lands in respect of which an application may be made, and, if not, whether the fact that land the subject of an application has since become a town means that the Commissioner can no longer exercise his functions under s. 50(1)(a) with respect to that land. In the present case, the Commissioner held that he could no longer perform his functions under s. 50(1)(a) in respect of the two areas, unless an attack could successfully be made on the validity of the Regulations, by which he may have meant an attack based on the ground that the Regulations were made for an unauthorized purpose. (at p372)

5. In Reg. v. Toohey; Ex parte Northern Land Council, two members of the Court discussed the questions which now fall for decision. Wilson J. said (1981) 151 CLR, at p 275:

"I am forced, reluctantly, to the conclusion that the Commissioner's function under s. 50(1)(a) extends only to land which satisfies the description contained therein. A change in the status of the land subsequently to the making of an application whereby the land ceases to fit the description necessarily has the effect of depriving the Commissioner of any further function in respect of it."

I took a different view and suggested (1981) 151 CLR, at pp 178-179 that although in my opinion there is nothing in the Land Rights Act to prevent the alienation of land, or any other alteration in the status of land, after an application in respect of that land has been made to the Commissioner, it may have been intended by the Parliament that once the Commissioner had embarked upon his function his inquiry should not be frustrated by a subsequent alienation of the land, or by the making of regulations by which the land was to be treated as a town (1981) 151 CLR, at pp 178-179. (at p372)

6. The framers of the Land Rights Act obviously found it necessary to reconcile competing interests. On the one hand, it was intended that the traditional Aboriginal owners of lands in the Northern Territory should, where practicable, be able to acquire, through the medium of Land Trusts, an interest in those lands that is recognized by the law. On the other hand, it was not intended to interfere with existing estates and interests already obtained under the law by persons other than Aboriginals. Consequently, "Only Crown land is to be the subject of this programme of returning land to its traditional Aboriginal owners, and then only certain Crown land": Reg. v. Toohey; Ex parte Attorney-General (N.T.) (1980) 145 CLR, at p 389. However the framers of the Act did not explicitly deal with the situation that arises when, during the pendency of an application, action is taken which would remove the land, the subject of the application, from either of the categories of Crown land in respect of which an application may be made. (at p372)

7. I adhere to the view, which I expressed obiter in Reg. v. Toohey; Ex parte Northern Land Council (1981) 151 CLR, at p 179, that the Land Rights Act does not prevent "unalienated Crown land", the subject of an application, from being alienated, or from being converted into land which is part of a town. It would, in my opinion, require clear words to bring about the result that the mere making of an application would completely inhibit the grant of any estate or interest in, or any action authorized by law which changed the status of, the land in respect of which a claim had been made. Obviously, not all claims which are made will result in the execution of a deed of grant to a Land Trust; to be successful, an application must attract the favourable exercise of three independent discretions - those of the Commissioner, the Minister, and the Governor-General (i.e., the Governor-General in Council: s. 16A of the Acts Interpretation Act 1901 (Cth), as amended). It is equally obvious that, as happended in the present case, a very considerable time may in some cases elapse before it is possible finally to dispose of a particular claim. It would in my opinion be gravely inconvenient if large areas of land were to be placed beyond the power of both the Crown and the Legislative Assembly of the Northern Territory, and frozen in their existing situation, simply because an application had been made in respect of them. Nothing in the Land Rights Act supports the view that such a result was intended. All the indications are to the contrary. Special provision is made by a number of sections in Pt VII of the Land Rights Act to place "Aboriginal land" outside the ordinary law of the Northern Territory (see ss. 67, 68, 70) and to restrict the power of the Legislative Assembly in respect of such land: see ss. 73, 74. However the expression "Aboriginal land" means land held by a Land Trust for an estate in fee simple, or land the subject of a deed of grant held in escrow by a Land Council (see the definition in s. 3(1)); it does not include land simply because an application under s. 50(1)(a) has been made in respect of it. When the Act intends that no grant shall be made of an estate or interest in land in respect of which some action is being taken under the Land Rights Act, it so provides expressly: see s. 13, which applies to land the subject of a deed of grant held in escrow by a Land Council. In my opinion, the fact that the application had been made in respect of the two areas now in question did not prevent the making of regulations under the Planning Act which had the effect that the two areas became lands in a town. (at p373)

8. It does not in my opinion follow that the fact that the two areas ceased to be "unalienated Crown land" meant that the Commissioner no longer had any power or duty to perform the functions cast on him by s. 50(1)(a). The Commissioner becomes obliged to perform his functions under s. 50(1)(a) at the time when the application is made, if the land in respect of which the application is made at the time answers the requisite description. There is nothing in the Land Rights Act that divests the Commissioner of his function if the land changes in character. It would seem to be contrary to the policy of the Land Rights Act that it should be possible to put an end to an application validly made under s. 50(1)(a), and to defeat a claim which might be meritorious, by action taken after the application had been made, and with knowledge that it was pending. The fact that the land ceases to answer either of the descriptions contained in s. 50(1)(a) does not necessarily mean that it can no longer be dealt with under ss. 11 and 12. The relevant condition stated in s. 11(1)(a) is that the Commissioner has recommended "that an area of Crown land should be granted to a Land Trust". The sub-section does not refer to "alienated Crown land" or to "unalienated Crown land". Crown land which has become part of a town does not cease to be Crown land. The power given by s. 12 is expressed to be given simply in relation to "land". Clearly enough, if land is "unalienated Crown land" at the time when an application is made, the Minister can make a recommendation, and the Governor-General a grant, notwithstanding that the land has since become part of a town, for it remains Crown land. The same will be true if some person other than the Crown has been granted an estate or interest, other than a freehold interest, in the land. A greater difficulty seems to arise in the case where land has been alienated by a grant in fee simple after an application under s. 50(1)(a) has been made to the Commissioner but before the Commissioner has made his recommendation to the Minister. Although the provisions of s. 11(1)(d) (and similar provisions in s. 11(1AB)(d) and s. 11(1AD)(e)) refer to the acquisition of outstanding estates and interests in alienated Crown land, they could possibly be limited to the acquisition of estates and interests held by, or on behalf of, Aboriginals in alienated Crown land. The obscurity of the legislation in this regard would appear to warrant the attention of Parliament, but the difficulty need not be resolved in the present case, for even if an alienation by a grant of an estate in fee simple would render futile the performance by the Commissioner of his functions under s. 50(1)(a), that does not mean that a similar result follows when the land remains Crown land but has become part of a town. (at p374)

9. The conclusion that the Commissioner should continue to perform his functions, notwithstanding that the land has become land in a town, is a convenient one. In the first place, it would seem contrary to the policy of the Act that a meritorious claim should be defeated by a subsequent change in status of the land. On the other hand, if the change in the status of the land has been made necessary by the public interest, that is a matter which can be considered by the Minister in deciding whether he is satisfied that the land should be granted to a Land Trust, and by the Governor-General, in deciding whether to execute a deed of grant. By s. 50(3)(b) and (c), in making his report the Commissioner is required to comment on the detriment to persons or communities that might result if the claim was acceded to in whole or in part and the effect which acceding to the claim either in whole or in part would have on the existing patterns of land usage in the region. The Minister and the Governor-General can consider these matters in deciding whether to exercise their powers under ss. 11 and 12. Thus the Minister and the Governor-General can weigh the traditional claims of the Aboriginals against the interest of the public, or of some community or section of the public, and decide whether justice requires effect to be given to the traditional land claims or to requirements such as those of town planning. (at p375)

10. For these reasons in my opinion, if it be assumed that the two areas of land in question became part of the town of Katherine, that did not bring to an end the functions of the Commissioner. It remains his duty to inquire and report in respect of those two areas of land. (at p375)

11. The challenge to the validity of the Planning Regulations depended on disputed questions of fact which were not fully canvassed before us, but it is of course unnecessary to consider for present purposes whether the regulations are valid. (at p375)

12. For these reasons I would make absolute the order nisi for mandamus. (at p375)

MURPHY J. On 31 March 1978 the Northern Land Council on behalf of more than 350 of the Jawoyn Aboriginal people applied to the Commissioner under s. 50(1)(a) of the Aboriginal Land Rights (Northern Territory) Act 1976 ("the Land Rights Act"), claiming five areas in the vicinity of Katherine. (at p375)

2. On 24 August 1978 the Chief Minister of the Northern Territory, in a letter to the Chairman of the Northern Land Council, undertook for two years not to deal with unalienated Crown land the subject of a traditional land claim, in a way prejucial to such claim. (at p375)

3. Unalienated Crown land can be claimed (see s. 50(1)(a)) but unalienated Crown land "does not include land in a town" (s. 3). By regulations gazetted on 29 December 1978 and made under the Town Planning Ordinance 1964 (N.T.) and subsequently by regulations made under the Planning Act 1979 (N.T.) (which came into effect on 3 August 1979), the town of Katherine was extended from 39 to 4,690 and then reduced to 650 square kilometres. (at p376)

4. At the hearing in March 1983 the Commissioner ruled that the regulations had deprived areas 2 and 3 of the claim of their status as "unalienated Crown land". Mandamus is now sought to oblige the Commissioner to exercise his functions over those two areas. (at p376)

5. It is startling if, right up to the point where a Minister has received a recommendation, agreed to it, and placed it before the Governor-General, a claim can be defeated by the Territory Government's introduction of a planning regulation which has the effect of altering the status of the land claimed from "unalienated" Crown land. The Land Rights Act should be interpreted and applied beneficially towards land rights claims. (at p376)

6. In Reg. v. Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 (the Kenbi Case), Gibbs C.J. suggested that s. 50(3)(d) of the Act, which requires the Commissioner in his report to comment on "where the claim relates to alienated Crown land - the cost of acquiring the interests of persons (other than the Crown) in the land concerned", may "refer to land which has been alienated to persons other than Aboriginals" (1981) 151 CLR, at p 178. This contemplates that land which had lost the status of unalienated Crown land could remain the subject of a claim. Similarly, the Chief Justice stated (1981) 151 CLR, at p 179:

"Although, by s. 3(1), 'alienated Crown land', like, 'unalienated Crown land', does not include land in a town, the definition of 'Crown land' in that sub-section does not contain any such exclusion. It would therefore appear that the Minister has power, if the necessary conditions precedent are satisfied, to recommend the grant of an estate in fee simple in Crown land that is land in a town, provided that it was unalienated Crown land at the time when the application was made to the Commissioner . . . Although, as I have said, there is nothing to stop dealings with the land after an application has been made, it may nevertheless have been intended by the Parliament that once the Commissioner had embarked upon his function his inquiry should not be frustrated by a subsequent alienation of the land, or by the making of regulations by which the land was to be treated as a town." (at p376)

7. The process of the hearing itself involves an opportunity for the Territory Government to put forward submissions as to why the land should not become Aboriginal land. (at p376)

8. My conclusion is that the scheme of the Act is that once a claim is made in respect of unalienated Crown land so that the jurisdiction of the Commissioner is invoked, the jurisdiction is not lost by a later alienation. (at p377)

9. Mandamus should issue. (at p377)

WILSON J. The facts underlying these proceedings fall within a short compass. On 30 March 1978 the Northern Land Council ("the prosecutor") made application to the respondent ("the Commissioner") on behalf of Aboriginals claiming to have a traditional land claim to areas of land in the vicinity of the town of Katherine in the Northern Territory. The application was made pursuant to s. 50(1)(a) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), as amended ("the Land Rights Act" or "the Act"). It is common ground that at the time of the application the areas included in the claim were unalienated Crown land and therefore open to be claimed pursuant to the Act. The Commissioner commenced the hearing of the application (described as the Jawoyn (Katherine Area) Land Claim) on 7 March 1983. However, in the period of almost five years which intervened between the making of the claim and the commencement of the hearing, changes were made to the zoning of land in the vicinity of Katherine which purported to affect two of the areas (those numbered 2 and 3) included in the claim. On 29 December 1978 Regulation No. 53 of 1978 was gazetted. That Regulation was made under the Town Planning Act 1964 (N.T.) as amended. It prescribed, inter alia, an area of land adjacent to Katherine "to be subject to the Act as if (it) were part of a town". The areas so prescribed included areas 2 and 3 of the claim. It is said that the result of the Regulation, if effective, was to enlarge the town of Katherine from an area of approximately 39 square kilometres to an area of approximately 4,690 square kilometres. With effect from 3 August 1979 the Town Planning Ordinance was repealed and replaced by the Planning Act (N.T.). On the same day Regulation No. 13 of 1979 ("the Regulation"), made pursuant to the latter Act, took effect. The Regulation prescribed an area adjacent to Katherine (which together with the town itself is said to amount to approximately 650 square kilometres) to be treated as a town for the purposes of s. 4 of the Planning Act. Again, the area so prescribed included areas 2 and 3 of the claim. When the hearing commenced in March 1983 the Commissioner ruled that he had no function to perform in relation to the application in respect of areas 2 and 3 because in his view these areas were no longer "unalienated Crown land" within the meaning of that expression in s. 50(1)(a). (at p377)

2. It is against this background of events that the prosecutor seeks the issue of a writ of mandamus directed to the Commissioner obliging him to exercise his functions with respect to areas 2 and 3. In the course of argument, Mr. Sher, counsel for the prosecutor, restated the grounds on which he relies as follows: That the Commissioner was wrong in law in concluding that his jurisdiction to conduct an inquiry into the application made on 30 March 1978 pursuant to s. 50(1)(a) of the Act was ousted by Planning Regulation No. 13 of 1979 because: (1) on its proper interpretation the Act requires such an inquiry to be held once an application is made; or (2) in so far as the Regulation specifies an area adjacent to Katherine which was to be treated as a town it is not a law relating to the planning and development of towns and the use of land in or near towns within the meaning of the Act; and (3) the Regulation is inconsistent with the Act and accordingly is invalid. (at p378)

3. The substantial question in the case depends on the proper construction of the Land Rights Act in general and s. 50 in particular with respect to the consequences that attend the making of a land claim. The material provisions of s. 50 are as follows:

"(1) The functions of the Commissioner are -

(a) on an application being made to the Commissioner by or on behalf of Aboriginals claiming to have a traditional land claim to an area of land, being unalienated Crown land or alienated Crown land in which all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals -

(i) to ascertain whether those Aboriginals or any other Aboriginals are the traditional Aboriginal owners of the land; and

(ii) to report his findings to the Minister and to the Administrator of the Northern Territory, and, where he finds that there are Aboriginals who are the traditional Aboriginal owners of the land, to make recommendations to the Minister for the granting of the land or any part of the land in accordance with sections 11 and 12;

. . .

(3) In making a report in connexion with a traditional land claim the Commissioner shall have regard to the strength or otherwise of the traditional attachment by the claimants to the land claimed, and shall comment on each of the following matters:

(a) the number of Aboriginals with traditional attachments to the land claimed who would be advantaged, and the nature and extent of the advantage that would accrue to those Aboriginals, if the claim were acceded to either in whole or in part;

(b) the detriment to persons or communities including other Aboriginal groups that might result if the claim were acceded to either in whole or in part;

(c) the effect which acceding to the claim either in whole or in part would have on the existing or proposed patterns of land usage in the region; and

(d) where the claim relates to alienated Crown land - the cost of acquiring the interests of persons (other than the Crown) in the land concerned.

(4) In carrying out his functions the Commissioner shall have regard to the following principles:

(a) Aboriginals who by choice are living at a place on the traditional country of the tribe or linguistic group to which they belong but do not have a right or entitlement to live at that place ought, where practicable, to be able to acquire secure occupancy of that place;

(b) Aboriginals who are not living at a place on the traditional country of the tribe or linguistic group to which they belong but desire to live at such a place ought, where practicable, to be able to acquire secure occupancy of such a place."

These being the relevant functions of the Commissioner, the operation of the statutory scheme after he submits his report to the Minister can be seen in ss. 11 and 12 of the Act. In brief, s. 11 provides that where the Commissioner recommends that an area of Crown land should be granted to a Land Trust for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of that area of land, the Minister may establish a Land Trust for that purpose and recommend to the Governor-General that a grant of an estate in fee simple in that land be made to that Land Trust. If the land in question is alienated Crown land then, before making a recommendation to the Governor-General, he must ensure that the estates and interests in that land of persons other than the Crown are acquired by the Crown by surrender or otherwise. Section 12 provides, inter alia, that on receipt of a recommendation under s. 11 the Governor-General may execute a deed of grant of an estate in fee simple in the land in accordance with the recommendation and deliver it to the grantee. (at p379)

4. It is in the context of this legislative scheme that the events I have outlined have occurred. The question of substance is whether, an application having been made pursuant to s. 50(1)(a) in respect of unalienated Crown land, the Administrator of the Northern Territory may make a regulation under the Planning Act which has the effect of specifying that for the purposes of s. 4 of that Act part of the land the subject of the application is to be treated as a town. The Land Rights Act defines "unalienated Crown land" to mean -

"Crown land in which no person (other than the Crown) has an estate or interest, but does not include land in a town."

The word "town" is defined as follows:

"'town' has the same meaning as in the law of the Northern Territory relating to the planning and developing of towns and the use of land in or near towns, and includes any area that, by virtue of regulations in force under that law, is to be treated as a town;".

Section 4(1) of the Planning Act defines "town" to mean -

"(a) a town within the meaning of the Crown Lands Act;

(b) a municipality; or

(c) land specified by the regulations to be an area which is to be treated as a town." (at p380)

5. It will be seen from these provisions that the making of the Regulation, assuming its effectiveness and subject to the second submission advanced by the prosecutor, resulted in land the subject of the prosecutor's application to the Commissioner ceasing to be "unalienated Crown land" within the meaning of the Act. The learned Commissioner ruled that he therefore had no further function to perform in relation to that land. It is that ruling which is now under challenge. (at p380)

6. It is desirable now to clarify further the central issue. In the course of argument Mr. Sher affirmed that his primary proposition was that the making of an application under s. 50(1)(a) in respect of unalienated Crown land had the effect of "freezing" that status of the land until such time as the Commissioner concluded his inquiry and, if he recommended that a grant be made, until the procedure outlined in ss. 11 and 12 was completed. That proposition necessarily involved denying to the Northern Territory any power during that period in respect of such land to exercise either the powers of alienation of interests in Crown land which are conferred by the Crown Lands Act (N.T.), as amended, or the power to create towns or specify areas to be treated as towns pursuant to the Planning Act. However, some attention was given to a construction of the Land Rights Act which would not so drastically affect the powers of the Northern Territory administration. It was suggested that the legislative scheme of the Act could be fully preserved consistently with allowing for the alienation of Crown land to occur subsequently to the making of a land claim but so that any such alienation would not inhibit the Commissioner in the exercise of his functions. In such a case it would be necessary either for such alienation to be defeasible (if that be possible) so as to terminate if the Governor-General should execute a deed of grant in favour of a Land Trust pursuant to s. 12(1) or for the Minister to ensure, pursuant to s. 11(1)(d), that the estates and interests in the land of persons (other than the Crown) are acquired by the Crown. In Reg. v. Toohey; Ex parte Northern Land Council (1981) 151 CLR, at p 275, I expressed the opinion that s. 11(1)(d) was "simply a recognition of the fact that an application may be made under s. 50 in respect of land which is alienated Crown land in which all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals". However, Mr. Sher submits that I was mistaken in holding that opinion and that the existence of the duty of the Minister imposed by the provision is supportive of his alternative construction. (at p381)

7. Even if that be so, there are substantial difficulties in the way of accepting the alternative construction. For one thing, it would have to stop short of authorizing the grant of an estate in fee simple because that would necessarily have the effect of depriving the land of the character of Crown land (see the definition of "Crown Land" in s. 3(1) of the Act) where upon ss. 11 and 12 could have no application at all. Again, it would be extraordinary if the Northern Territory Administration could, by granting estates and interests in Crown land during the pendency of a land claim, impose on the consolidated revenue of the Commonwealth the pecuniary burden involved in the acquisition of those estates and interests pursuant to s. 11(1)(d). Certainly, the possibility of allowing the grant of defeasible or short-term interests that would not inhibit the operation of the Commonwealth scheme is easier of conception. But the basic difficulty remains that, whatever the possibilities are, their conception takes one into the realm of speculation rather than construction. There is not the slightest indication in the Act that any of these possibilities were within the contemplation of the legislature; how much more difficult is it then to extract them in the course of a legitimate process of construction. (at p381)

8. I have been speaking of the problem in terms of the grant of estates and interests in the land which would ordinarily deny to the land the character of "unalienated Crown land" within the meaning of the Act. This present case is concerned, not with alienation as such, but with the making of a regulation under the Planning Act which, if valid, would also deny to the land claimed the character of "unalienated Crown land" within the meaning of the Land Rights Act for the reason that the land would henceforth be "land in a town". It may be possible to envisage, theoretically, a Land Trust being granted an estate in fee simple of land which is situated within a town. But, in my opinion in practical terms the possibility is remote. The grant of an estate in fee simple to a Land Trust has the effect of converting that land to "Aboriginal land" and makes it the subject of special provisions in the Act: see ss. 67, 68, 70, 71. These provisions make it practically impossible to subject Aboriginal land to the exercise of the ordinary powers of municipal or territorial government in relation to towns. The impossibility is recognized by the Act itself when it places "land in a town" beyond the reach of an application under s. 50. (at p382)

9. In my opinion, therefore, the issue is clear. It is whether the prosecutor is correct in the submission that the proper construction of the Act requires the conclusion that from the moment an application is made to the Commissioner pursuant to s. 50(1) the character of the land the subject of the application cannot be changed by the Northern Territory Administration, whether by alienation or by regulation under the Planning Act. It must continue to satisfy the definition of "unalienated Crown land" provided by the Land Rights Act. It will not become "unfrozen" until the processes of the Act in relation to the land claim the subject of the application are exhausted. (at p382)

10. Before proceeding to a consideration of Mr. Sher's submissions, it is convenient to mention, if only for the purpose of rejecting it, a submission advanced by Mr. Ellicott, counsel for the Attorney-General of the Northern Territory, that "an application" was not made within the meaning of s. 50(1)(a) until the Commissioner actually commenced his inquiry. He observed that the Act does not require any formality to attend the making of a claim and that therefore no relevance attaches to the lodging of a written application with the Commissioner. That writing was no more than a notice of an intention to make an application at such times as it was convenient for the Commissioner to entertain it. In my opinion, the argument has no merit whatever. Section 51 authorizes the Commissioner to "do all things necessary or convenient to be done for or in connexion with the performance of his functions". If in the exercise of that power he institutes a system for the orderly processing of land claims and that system provides for an application to be made in writing lodged with the Commissioner, then surely the application is made when that is done. How, when and where he proceeds to perform his functions with respect to the application have nothing to do with the making of it. (at p382)

11. The question then is whether, areas 2 and 3 of the land claimed admittedly being "unalienated Crown land" when the application was made in March or April 1978, the Commissioner is bound to make his inquiry and to report his findings with or without recommendations in accordance with s. 50 of the Act, regardless of the subsequent making of a regulation under the Planning Act purporting to treat the areas as a town. (at p383)

12. There are substantial considerations which weigh in favour of the prosecutor. The long title of the Land Rights Act announces that it is, inter alia, "An Act providing for the granting of Traditional Aboriginal Land in the Northern Territory for the benefit of Aboriginals". The close physical and spiritual affinity of many Aboriginal groups to their traditional lands is now well documented and the objects of this legislation reflect a growing appreciation within Australia of the justice of the claim of these groups to legal rights over so much of their lands as can reasonably be made available. The qualification with which I have concluded the last sentence is not intended to diminish regard to the basic justice of the claim but simply to recognize that the objective must be pursuant having regard to present realities and the demands of peace, order and good government for all Australians in the twenty-first century and the years leading up to it. The course of history in Australia over the past 200 years cannot be ignored. That history nourishes the moral imperative to acknowledge past injustices in a tangible way at the same time as it calls for a realistic appreciation of the challenge to create in Australia a sense of true community based on mutual respect for the dignity and well-being of all its citizens. Mr. Sher pressed the Court with the notion of restoration underlying the purpose and object of the Act, emphasizing the righteousness of the claim and the importance of traditional lands to the Aboriginal people. So much may be readily acknowledged - and is acknowledged by the legislature itself in s. 50(4) - but the aspect of the problem which calls for the careful consideration of the court is the necessity to discern from the provisions of the Act viewed in their totality the line which the legislature has drawn in attempting to accomodate the competing considerations to which I have referred. (at p383)

13. Turning specifically to s. 50 of the Act, Mr. Sher argues that the duty of the Commissioner plainly arises "on an application being made . . . by or on behalf of Aboriginals claiming to have a traditional land claim to an area of land, being unalienated Crown land . . ." (s.50(1)(a)). Thereafter any attempt at alienation of the land the subject of the claim is of no effect. Nor is it open to the Northern Territory to incorporate, pursuant to the provisions of the Planning Act, any part of the land into a town or require it to be treated as a town. The basic difficulty which the submission encounters is that the Land Rights Act does not spell out either of these consequences which are said to attend the making of a claim. It could easily have done so. Counsel both for the prosecutor and for the Northern Territory stress, rightly, the very serious consequences that flow from a construction of the Act adverse to that for which each contends. Mr. Sher argues that the legislature could not have intended the policy expressed in the Act to be liable to be frustrated at the eleventh hour, perhaps after the expense and emotional wear and tear of a lengthy inquiry by the Commissioner - and indeed at any time until the delivery of a deed of grant to a Land Trust (s. 12(1)) - by Government action having the effect of rendering the land in question unavailable for claim. Against that, Mr. Ellicot stresses the seriousness of implying a freeze upon the exercise of executive authority conferred under legislation enacted for the peace, order and good government of the Territory. It is not as if the freeze would necessarily operate for only a short time. The claim in the present case was lodged more than five and a half years ago and the Commissioner has not yet reported to the Minister in relation to those portions of the claim which are not affected by the present proceedings. It is not difficult to envisage circumstances arising within a period of that length which would ordinarily make it imperative for a government to respond to the need to create new towns or extend existing ones. Nor can one accept with equanimity the freezing over such a long period of the powers of alienation of Crown land. One can predicate that many inquiries pursuant to s. 50 would be concluded in a much shorter time but it is not in the nature of such inquiries that they proceed with expedition. The claimants must be allowed ample time in which to present their case. (at p384)

14. Mr. Sher seeks to diminish the serious implications that his submission holds for the Northern Territory Administration by referring to s. 50(3)(b) and (c). These provisions require the Commissioner, in making a report, to comment both on the detriment to other persons or communities that might result if the claim were acceded to and on the effect which acceding to the claim would have on the existing or proposed patterns of land usage in the region. It is true that the obligation on the Commissioner to comment on such matters opens the way for the Northern Territory Administration to adduce evidence of long-term proposals for grants of interests in land or for town planning and regional development with a view to showing the effect on those proposals of acceding to the claim. But it is not to be supposed that any administration would see the opportunity of adducing such evidence as a satisfactory alternative to the exercise of powers to meet the on-going and immediate demands of good government. (at p384)

15. It is appropriate now to examine other provisions of the Act in the search for indications of the intention of the legislature with respect to the central issue under discussion. Assistance is to be gained from the scheme dealing with Sch. 1 land. Schedule 1 describes a number of areas of land which are to be granted to Aboriginal Land Trusts without any necessity to resort to the procedure of inquiry and report by the Commissioner pursuant to s. 50 and the handling of the Commissioner's recommendations by the Minister pursuant to s. 11 of the Act. Section 4(1) requires the Minister to establish Land Trusts to hold the Crown land described in Sch. 1 and thereupon to recommend to the Governor-General that a grant of an estate in fee simple be made to the appropriate Land Trust (s. 10). Where an area of land described in Sch. 1 is one where a person (other than the Crown) has an estate or interest in the land, the Minister's recommendation will be that the Governor-General execute a deed of grant of an estate in fee simple in favour of the Land Trust and deliver it to the Land Council for the area in which the land is situated to be held in escrow until all of the estates and interests in the land held by a person (other than Crown) have come to an end, whether by surrender to the Crown or otherwise. Thereupon the deed is to be delivered by the Land Council to that Land Trust (s. 10(2)). It is then the function of the Land Trust in such a case to acquire, as and when practicable, the estates and interests of other persons in the land with a view to the surrender to the Crown of those estates and interests. Section 12(3A) provides that a deed of grant in respect of Sch. 1 land shall be expressed to exclude from the grant, inter alia, any land on which there is, at the time of the execution of the deed of grant, a road over which the public has a right of way. A deed of grant of Sch. 1 land which is to be held by the Land Council in escrow takes effect on the date on which it is delivered by the Land Council to the Land Trust (s. 12(4)). (at p385)

16. Section 13(1) provides, subject to the qualifications set out in sub-s. (2), that no grant of an estate or interest in land the subject of a deed of grant held in escrow by a Land Council shall be made by the Crown to any person. By s. 13(2)(a), an exception is made where the grant is made in consequence of the exercise by a person of a right, under a law of the Northern Territory, to require the grant to be made. The right referred to is a right that was vested in the person immediately before the land became Aboriginal land (s. 13(3)). (at p385)

17. The concept of "Aboriginal land" and the significance which the Act attaches to that concept is of the greatest importance to a resolution of the problem. The concept is defined to mean -

"(a) land held by a Land Trust for an estate in fee simple; or

(b) land the subject of a deed of grant held in escrow by a Land Council."

It is clear from s. 13 that, notwithstanding the special character of Sch. 1 land arising from the direct operation of the Act upon it, that land remained subject to the full operation of Northern Territory law with respect to the grant of interests in Crown land until such time as the deed of grant was actually delivered to a Land Council. Other provisions of the Act show that the legislature has been consistent in applying this principle to other land which is or may be affected by the operation of the Act. (at p386)

18. Part IV of the Act deals with "Mining Interests and Mining Operations". Section 40 imposes strict conditions which must be fulfilled before a mining interest may be granted in respect of Aboriginal land. However, those conditions do not apply to the grant to a person of a lease in respect of Aboriginal land under the Petroleum (Prospecting and Mining) Ordinance 1954 (N.T.) if that person applied for the grant of such a lease in respect of that land before it became Aboriginal land (s. 40(5)). Furthermore, s. 3(4) provides:

"A reference in this Act to the granting of a mining interest in respect of Aboriginal land shall be read as not including a reference to the renewal, in accordance with an option or other right conferred before the land became Aboriginal land, of a mining interest that was in existence when the land became Aboriginal land."

A miner's right does not apply in relation to Aboriginal land unless immediately before it became Aboriginal land, the land was being occupied or used by virtue of the miner's right (s. 75). (at p386)

19. Finally, on the question of the importance of the status of land as Aboriginal land when one is considering the impact of the general law upon that land, reference must be made to a number of miscellaneous provisions in Pt VII. Section 67 provides that Aboriginal land shall not be resumed, compulsorily acquired or forfeited under any law of the Northern Territory. Subject to some exceptions where a person other than a Land Trust has an interest in the land, a road shall not be constructed over Aboriginal land unless the Land Council consents, in writing, to the construction (s. 68). Except in the performance of functions under the Act or otherwise in accordance with the Act or a law of the Northern Territory, a person shall not enter or remain on Aboriginal land (s. 70). Section 73(1) provides:

"The power of the Legislative Assembly of the Northern Territory under the Northern Territory (Self-Government) Act 1978 in relation to the making of laws extends to the making of-

(a) laws providing for the protection of, and the prevention of the desecration of, sacred sites in the Northern Territory, including sacred sites on Aboriginal land, and, in particular, laws regulating or authorizing the entry of persons on those sites, but so that any such laws shall provide for the right of Aboriginals to have access to those sites in accordance with Aboriginal tradition and shall take into account the wishes of Aboriginals relating to the extent to which those sites should be protected;

(b) laws regulating or authorizing the entry of persons on Aboriginal land, but so that any such laws shall provide for the right of Aboriginals to enter such land in accordance with Aboriginal tradition;

(c) laws providing for the protection or conservation of, or making other provision with respect to, wildlife in the Northern Territory, including wildlife on Aboriginal land, and, in particular, laws providing for schemes of management of wildlife on Aboriginal land, being schemes that are to be formulated in consultation with the Aboriginals using the land to which the scheme applies, but so that any such laws shall provide for the right of Aboriginals to utilise wildlife resources; and

(d) laws regulating or prohibiting the entry of persons into, or controlling fishing or other activities in, waters of the sea, including waters of the territorial sea of Australia, adjoining, and within 2 kilometres of, Aboriginal land, but so that any such laws shall provide for the right of Aboriginals to enter, and use the resources of, those waters in accordance with Aboriginal tradition,

but any such law has effect to the extent only that it is capable of operating concurrently with the laws of the Commonwealth, and, in particular, with this Act, the National Parks and Wildlife Conservation Act 1975 and any regulations made, schemes or programs formulated or things done, under this Act, or under that Act."

Section 74 declares that the Act does not affect the applcation tt Aboriginal land of a law of the Northern Territory to the extent that the law is capable of operating concurrently with the Act. (at p387)

20. Having examined in some detail this mosaic of statutory provisions, it is now possible to draw some conclusions as to the approach of the legislature to the question of Aboriginal land rights. In my view, it is impossible to doubt that the central concept around which the entire legislative scheme revolves is the concept of the special character attaching to Aboriginal land. The Act seriously curtails the application of laws of the Northern Territory to such land. Conversely, one must infer that, in the absence of express provision to the contrary, those laws should continue to apply according to their terms to land which has not yet become Aboriginal land. This includes land that is the subject of an application under s. 50. If this were not so, the careful distinctions with which the Act surrounds Aboriginal land would be meaningless. Section 13(1) may be thought to mark a departure from the general legislative scheme but it is noteworthy that the provision does not leave room for any doubt at all. Once a deed of grant is delivered pursuant to s. 12(1)(b) to a Land Council to be held in escrow, then save as provided in s. 13(2) the Crown may not make a grant of an estate or interest in the land the subject of the deed of grant to any person. This is so, notwithstanding that the deed of grant has not then taken effect (s. 12(4)(b). But then the clarity and consisitency of the legislative scheme is preserved by the express extension of the concept of "Aboriginal land" to include land the subject of a deed of grant held in escrow by a Land Council. Mr. Sher's argument requires the conclusion that the making of an application to the Commissioner pursuant to s. 50(1)(a) has the effect for all practical purposes of converting the land the subject of a traditional land claim into Aboriginal land. I must confess my inability to find any foothold for such a conclusion in the words of the section or elsewhere in the Act. In my opinion, therefore, there is no warrant in the Act for denying the continued application of the laws of the Northern Territory to Crown land within the Territory merely because the land is the subject of an application pursuant to s. 50. The proper construction of the Act requires the further conclusion that should the character of the land change during the pendency of such an application, whether by alienation or by regulation under the Planning Act bringing it within the definition of "town" in the Act, the Commissioner thereafter has no statutory function to perform with respect to it. The land will have ceased to be "unalienated Crown land" within the meaning of the Act. (at p388)

21. I alluded to this question in Reg. v. Toohey; Ex parte Northern Land Council (1981) 151 CLR, at p 275. The opportunity with which this case has provided me for futher consideration of it has confirmed me in the opinion which I then expressed. At that time I offered as an explanation of the possible incongruity of a situation where the actions of the Northern Territory administration might sometimes appear to frustrate not only the hopes and aspirations of the Aboriginal claimants but also the operation of the Commonwealth statute the fact that at the time of the original enactment of the Act the Commonwealth Government retained an overriding role in the alienation of Crown land within the Territory. That situation changed when the Northern Territory achieved self-government on 1 July 1978 but it is quite clear that the Commonwealth Parliament did not then vary the operation of s. 50 of the Act. Had it wished to do so, it could have limited the powers of the Northern Territory with respect to land the subject of an application pursuant to s. 50 at the same time as it amended the Act in other respects. There can be no question of implying such a restriction on the powers of the Northern Territory. The contrary is expressly provided by reg. 4(1) and (2) of the Northern Territory (Self-Government) Regulations made under the Northern Territory (Self-Government) Act 1978 (Cth). That regulation conferred executive authority on the Minister of the Northern Territory in relation, inter alia, to land and land use but expressly declared that such authority did not extend to "rights in respect of Aboriginal land" under the Land Rights Act. The proper conclusion is that the Parliament, recognizing the possibility of conflict between the object of the Act and the demands of good government of the Territory, resolved to leave unimpaired the Territory's powers of government until such time as the land became Aboriginal land. In so doing, it trusted the Government of the Territory to act responsibly in the administration of the relevant statutes. In the present case, the Court is not concerned with any question as to whether or not that trust has been vindicated. (at p389)

22. The second and third arguments upon which Mr. Sher relies do not require lengthy consideration. The second submission is that the Planning Regulation did not have the effect of bringing the areas 2 and 3 within the definition of "town" in the Act. The submission can succeed only if the Regulation is not a "law of the Northern Territory relating to the planning and developing of towns and the use of land in or near towns". In support of the submission, Mr. Sher relies on the observations of Murphy J. in Reg. v. Toohey; Ex parte Northern Land Council (1981) 151 CLR, at pp 227-228. I also touched on the subject, in the same case (1981) 151 CLR, at pp 272-273, 286-287, as did Gibbs C.J. (1981) 151 CLR, at p 180. However, a submission such as this requires evidence to support it. In my opinion, materials that are before the court do not furnish any basis on which it could be said that the Regulation is not what it purports to be, namely, a regulation which declares that the land in question is to be treated as a town. It is not to be assumed, in the absence of evidence, that a law which sets apart an area of several hundred square kilometres surrounding a town to be treated as a town is not a law relating to the use of land "in or near towns". (at p389)

23. The third argument is that the Planning Act and the Regulation are inconsistent with the Land Rights Act and consequently the regulation is invalid. This question cannot arise if on its proper construction the Land Rights Act does not prevent the operation of the laws of the Northern Territory on land which is the subject of an application pursuant to s. 50. The conclusion must be that the Act itself contemplates that the Northern Territory may in good faith make a regulation under the Planning Act which has the effect of taking all or part of the land claimed outside the definition of "unalienated Crown land" and therefore beyond the purview of the Act. There cannot then be an inconsistency if that power be exercised. (at p390)

24. For these reasons I would discharge the order nisi. (at p390)

BRENNAN J. Pursuant to s. 50(1)(a) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("the Land Rights Act"), an application may be made to the Aboriginal Land Commissioner ("the Commissioner") by, or on behalf of, Aboriginals claiming to have a traditional land claim to an area of land being unalienated Crown land. Upon such an application being made, it is the Commissioner's function

"(i) to ascertain whether those Aboriginals or any other Aboriginals are the traditional Aboriginal owners of the land; and

(ii) to report his findings to the Minister and to the Administrator of the Northern Territory, and, where he finds that there are Aboriginals who are the traditional Aboriginal owners of the land, to make recommendations to the Minister for the granting of the land or any part of the land in accordance with sections 11 and 12". (at p390)

2. On 31 March 1978 the Northern Land Council lodged with the Commissioner, then Toohey J., an application on behalf of the Jawoyn people in respect of five areas all of which were at that time "unalienated Crown land" within the definition of that term in s. 3(1) of the Land Rights Act:

"'unalienated Crown land' means Crown land in which no person (other than the Crown) has an estate or interest, but does not include land in a town". (at p390)

3. Section 3(1) also defines "town" to have -

"the same meaning as in the law of the Northern Territory relating to the planning and developing of towns and the use of land in or near towns, and includes any area that, by virtue of regulations in force under that law, is to be treated as a town." (at p390)

4. The areas of land covered by the application were in the vicinity of the town of Katherine, but none lay within the area of the town. When the application was made, the town of Katherine was of an approximate area of 30 square kilometres. (at p390)

5. After the application was made but before it was heard by the present Commissioner, Kearney J., the area of the town of Katherine subject to the Town Planning Ordinance 1964 (N.T.) - the relevant "law of the Northern Territory" for the purposes of the above definition of "town" - was increased by 4,690 square kilometres. Following this, the Planning Act (N.T.) was enacted containing a definition of "town" that reflected the definition of that term in the Land Rights Act. By the definition in the Planning Act, "town" means -

"(a) a town within the meaning of the Crown Lands Act;

(b) a municipality; or

(c) land specified by the regulations to be an area which is to be treated as a town".

The Planning Regulations were then made purportedly under the Planning Act specifying an area of land containing 650 square kilometres more or less adjacent to the town of Katherine to be an area which is to be treated as a town (reg. 5; Sch. 3 Pt IV). Two of the areas of land the subject of the claim (namely, areas 2 and 3) are included within the boundaries of the land specified by the Planning Regulations. (at p391)

6. When the application came on for hearing, Kearney J. held that areas 2 and 3 are "not open to claim as matters presently stand . . . because they fall within the town planning regulations and they are to be treated as part of the town of Katherine". His Honour thought that the position might change if there were a successful attack upon the validity of those Regulations but, in default of such an attack, the claim could not proceed. Dawson J. granted an order nisi for mandamus to compel the Commissioner to perform the functions imposed upon him by s. 50(1)(a) of the Land Rights Act in relation to areas 2 and 3. (at p391)

7. The Commissioner's functions are prescribed by s. 50. The functions prescribed by sub-s. (1)(a) have been recited earlier. When the Commissioner makes a report to the Minister, he is required to comment upon the matters specified in s. 50(3), including the effect which acceding to the claim would have on existing or proposed patterns of land usage in the region (par. (c)). The nature of the Commissioner's functions was recently expounded in Reg. v. Toohey; Ex parte Meneling Station Pty. Ltd. 158 CLR 326. (at p391)

8. An application duly made in respect of "unalienated Crown land" imposes a duty upon the Commissioner to perform the functions prescribed by s. 50 with respect to the land claimed. There is nothing in the Act to absolve the Commissioner of that duty in the event that the land ceases to answer that description while remaining (as areas 2 and 3 have remained) Crown land. To the contrary, the words of s. 50(1)(a) clearly indicate that the question whether the land satisfies the requisite description is to be answered as at the date of the application. (at p392)

9. Assuming that the Planning Regulations effectively transformed areas 2 and 3 into "land in a town" and thus excluded those areas from the category of "unalienated Crown land", the functions to be performed pursuant to ss. 11 and 12(1)(a) of the Land Rights Act by the Minister and the Governor-General respectively may still be performed with respect to those areas. The several functions prescribed by ss. 11 and 12(1)(a) relate only to Crown land, but those functions may be performed whether the Crown land is "alienated Crown land" or "unalienated Crown land". Crown land is defined by s. 3(1). The definition, unlike the definitions of "alienated Crown land" and "unalienated Crown land", does not exclude land in a town. Crown land may be found in a town as well as outside a town, and the inclusion of unalienated Crown land in a town does not alter its character as Crown land. Pursuant to s. 11, the Minister may, after ensuring that the Crown acquires any outstanding estate or interest in the land, recommend to the Governor-General that a grant of an estate in fee simple in the land claimed be made to a Land Trust established to hold the title to that land (s. 11(1)(e) and (1AD)(f)). The power conferred upon the Governor-General by s. 12(1)(a) to execute a deed of grant in accordance with the Minister's recommendation and to deliver the deed to the grantee is not affected by the inclusion of the land claimed in the area of a town provided the land to be granted is "Crown land". There is nothing in ss. 11, 12 or 50 which, upon the inclusion of the land claimed in an area of a town, divests the claimants of their right to have the Commissioner enquire into the claim, report his findings and, in a proper case, to recommend a grant. (at p392)

10. The consummation of the statutory procedure is the grant by the Governor-General to a Land Trust of an estate in fee simple in land. Once a claim is validly made, the inclusion in a town of the unalienated Crown land claimed does not preclude the Commissioner and the Minister from taking any of the steps specified in ss. 50 and 11 leading up to the grant of an estate in fee simple to a Land Trust under s. 12(1)(a), nor does it preclude the Governor-General from making the grant. In particular, the Commissioner's functions are neither terminated nor impeded by a change in the planning or zoning provisions applicable to the land in respect of which the Commissioner's findings are to be made. Indeed, an attempt by a law of the Northern Territory to impose planning control over an area of unalienated Crown land that is under a valid claim may be impeded to some extent if the claim succeeds and the land becomes Aboriginal land. When land is or becomes Aboriginal land, the use or occupation to which an Aboriginal or a group of Aboriginals is entitled according to Aboriginal tradition is guaranteed by s. 71, and the laws of the Northern Territory - including planning laws - are incapable of interfering with that use or occupation: see ss. 73 and 74. (at p393)

11. The impediment to efficient town planning which is presented by the continued validity of a claim under s. 50(1)(a) of the Land Rights Act and by the conversion of land into Aboriginal land under that Act were urged as reasons for adopting a different construction of ss. 11, 12 and 50 of that Act. It was submitted that exclusion of unalienated Crown land which is under claim from a town area or from an area to be treated as a town for planning purposes would significantly impair the ordinary planning powers granted to the Northern Territory legislature and executive by the Northern Territory (Self-Government) Act 1978 (Cth) and the regulations made in pursuance of s. 35 of that Act. It is manifest that the object of subjecting particular Crown land to planning or zoning controls and the object of restoring that land to use and occupation by Aboriginals in accordance with Aboriginal tradition may not always be compatible. Where there is incompatibility, it must be resolved according to the statutory provisions which create the relevant rights or powers. (at p393)

12. Before a claim is made under s. 50(1)(a) in respect of any parcel of unalienated Crown land, the parcel may be included in a town area or in an area to be treated as a town. The lawful inclusion of such a parcel in a town area or in an area to be treated as a town precludes the making of a claim in respect of that parcel. (It is unnecessary here to consider the question of ulterior purpose affecting the validity of the inclusion of areas 2 and 3 within an area of land to be treated as a town, for those areas were unalienated Crown land when the relevant application was made.) After a claim is made, the Commissioner may hear evidence and is required to comment in his report on the planning or zoning implications of acceding to the claim (pars. (b) and (c) of s. 50(3)). The weighing of competing considerations is a function entrusted to the Commonwealth Minister in deciding whether to recommend to the Governor-General that a grant in fee simple be made to a Land Trust: see Meneling Station. The ultimate power to decide which object should prevail - the object of subjecting an area of Crown land to planning and zoning control or the object of restoring to Aboriginals their traditional rights of occupation and use of that land - is reserved by the Parliament to a Commonwealth Minister after investigation and report by the Commissioner. That reservation is not surprising. The restoration of Crown land in the Northern Territory to traditional Aborigianl use and occupation under the Land Rights Act was retained as a national responsibility when the Northern Territory (Self-Government) Act came into operation: see the Land Rights Act, s. 3A inserted by the Aboriginal Land Rights (Northern Territory) Amendment Act (No. 3) 1978. It would be inconsistent with the high policy expressed in s. 3A to permit the Government of the Northern Territory to pre-empt a decision by the Commonwealth Minister to recommend that Crown land in the Northern Territory, having been validly claimed, become Aboriginal land. (at p394)

13. The order nisi should be made absolute. (at p394)

DEANE J. I agree with the judgment of Brennan J. (at p394)

Orders

Order nisi for a writ of mandamus directed to the Honourable Mr. Justice Kearney, the Aboriginal Land Commissioner, requiring him to exercise according to law the functions conferred and imposed upon him by s. 50 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) in relation to the claim made by the Northern Land Council on behalf of the traditional Aboriginal owners to areas 2 and 3 of the Jawoyn (Katherine Area) Land Claim made absolute.

Order that the prosecutor's costs be paid by the persons other than Mr. Justice Kearney served with the order nisi.