HIGH COURT OF AUSTRALIA
Gibbs C.J., Mason, Murphy, Wilson and Brennan JJ.
THE QUEEN v. TOOHEY; Ex parte MENELING STATION PTY. LTD.
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…
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- Case
- [1982] HCA 69
- Decision Date
CaseChat Overview and Summary
The central legal issue before the High Court was whether the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) conferred upon the Aboriginal Land Commissioner the power to hear and determine claims for traditional ownership of unalienated Crown land, even where that land was subject to a pastoral lease. Specifically, the Court had to determine the meaning and scope of "unoccupied Crown land" as defined in the Act and whether land held under a pastoral lease fell within that definition for the purposes of a traditional ownership claim.
The Court reasoned that the Act's purpose was to provide for the traditional ownership of land by Aboriginal people and to enable them to claim title to unalienated Crown lands. It was held that the term "unoccupied Crown land" in the Act was intended to include land that, while subject to a pastoral lease, was not being used or occupied by the lessee in a manner that would prevent Aboriginal people from asserting their traditional rights. The Court interpreted the Act broadly to give effect to its remedial purpose, concluding that the Commissioner had jurisdiction to hear the claim.
The application for the writ of prohibition was dismissed.
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