The Northern Territory of Australia v Sangare

The Northern Territory of Australia (the Territory) appealed to the High Court of Australia against a decision of the Full Federal Court concerning the validity of a notice issued under section 19 of the *Aboriginal Land Rights (Northern Territory) Act 1976* (Cth) (the Act). The notice, issued by the Minister for Indigenous Affairs, purported to withdraw certain land from the operation of the Act, thereby preventing it from being granted to the traditional Aboriginal owners. The central dispute revolved around whether the Minister had the power to issue such a notice in the circumstances that arose.

The High Court was required to determine whether the Minister's power to withdraw land from the operation of the Act under section 19 was limited by the fact that the land in question had already been recommended for grant by the Aboriginal Land Commissioner. Specifically, the Court had to consider the interplay between the Minister's executive power and the statutory scheme established by the Act for the identification and granting of Aboriginal land. The core legal question was whether the Minister's discretion to withdraw land was unfettered or subject to implied limitations arising from the purpose and structure of the Act.

Gageler and Keane JJ held that the Minister's power under section 19 of the Act was not absolute and was constrained by the statutory purpose of the Act, which is to provide for the granting of traditional lands to Aboriginals. Their Honours reasoned that once the Aboriginal Land Commissioner had made a recommendation for the grant of land, the Minister's executive power to withdraw that land from the operation of the Act was significantly curtailed. To permit the Minister to withdraw land after a recommendation had been made would undermine the statutory scheme and frustrate the legislative intent to facilitate the return of land to Aboriginal owners. The Court concluded that the Minister's power to withdraw land under section 19 was exercisable only before the Commissioner had made a recommendation for its grant.

The appeal was dismissed, and the Full Federal Court's decision was affirmed.