R v Toohey; Ex parte Meneling Station Pty Ltd

HIGH COURT OF AUSTRALIA

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

THE QUEEN v. TOOHEY; Ex parte MENELING STATION PTY. LTD.

(1982) 158 CLR 327

8 December 1982

Real Property—Aboriginal Lands—Administrative Law

Real Property—Grazing licence granted pursuant to statute—Not assignable—Terminable on notice by Minister—Whether estate or interest in land—Whether profit a prendre—Crown Lands Act 1931 (N.T.), s. 107(1)—Crown Land Regulations (N.T.), regs. 70, 71, 71A. Aboriginal Lands—Traditional land claim—Unalienated Crown land—Application to Aboriginal Land Commissioner—Report—Findings—Comment—Aboriginal Land Rights (Northern Territory) Act 1970 (Cth), s. 50. Administrative Law—Mandamus—Commissioner to ascertain whether Aboriginals traditional owners of land and if so to recommend grant of land—Findings to be reported to Minister—Requirement to have regard to various matters—Requirement to comment on other matters—Whether in deciding whether to recommend grant Commissioner bound to have regard to matters for comment—Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), s. 50.

Decisions

December 8.
The following written judgments were delivered: -
GIBBS C. J. This application for mandamus and prohibition raises for decision two important and difficult questions as to the construction of s. 50 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), as amended, ("the Act"). Section 50, so far as it is material, provides 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…