R v Kearney; Ex parte Japanangka

R v Kearney; Ex parte Japanangka - [1984] HCA 13 - HCA 1984 case summary — Zoe

[52]

These submissions may appear to derive some support from the provisions of s. 11(1)(d) and (1AD)(e). Those paragraphs refer to the duty of the Minister who has established or who proposes to establish a Land Trust and who proposes to recommend a grant of an estate in fee simple in land to that Trust to ensure that the Crown acquires any estates and interests in the hands of other persons - estates and interests that make that land "alienated Crown land". If the land was unalienated Crown land when the claim was made, it may be thought that there must be power to create such estates and interests after the claim was made. Thus it may be argued that these paragraphs of s. 11 contemplate the creation of at least some estates and interests in land under claim. There are, however, at least two situations to which these paragraphs apply where the relevant estate or interest is not created after a claim is made. The first occurs when the claim is made to an area in which all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals - the second category of Crown land in respect of which a claim may be made under s. 50(1)(a). In such a case, the estates and interests held by or on behalf of Aboriginals are necessarily created before the claim is made. The second situation depends on the extended meaning given to an estate or interest in land by s. 3(2): a reference to an estate or interest in land includes a reference to an interest by way of a right against the Crown to a grant of an estate or interest in land, though it does not include certain classes of interests that are immaterial for present purposes. If, when a claim is made to an area of unalienated Crown land, a person has a right against the Crown to a grant of an estate or interest contingent on the occurrence of a future event, the land will become alienated Crown land upon the occurrence of the event after the making of the claim. In such a case, the interest by way of a right against the Crown to a grant does not arise until after the claim is made though the contingent right from which the interest grows has been created earlier. The provisions of s. 11(1)(d) and (1AD)(e) can therefore have an operation in cases where the estate or interest held by a person not the Crown in land in respect of which a claim has been made was not created after the making of the claim. Of course, those provisions are consistent also with the existence of a power to create estates or interests in an area of unalienated Crown land after a claim is made and before it is disposed of, but they do not furnish an argument supporting the existence of that power. If a power to grant a lease of land under claim exists and is exercised, those provisions of s. 11 save the claim from aborting, for they require the Commonwealth Minister who proposes to recommend a grant to a Land Trust under s. 12(1)(a) to ensure that the lease is surrendered or otherwise acquired so that the land becomes unalienated Crown land before he makes his recommendation.

[64]

In the first place, it was provided that a grant made by the Governor-General pursuant to s. 12(1)(a) may be made without any liability to pay compensation to the Northern Territory (s. 3A(2)). If the Northern Territory Minister were empowered to grant a lease of land under claim so that the Commonwealth would become bound to pay compensation to the lessee before a grant could be made by the Governor-General pursuant to s. 12(1)(a), the exercise of the power by the Northern Territory Minister would expose the Commonwealth to a liability to pay compensation from which it would have otherwise been exempt. It would be curious if the Northern Territory, disentitled to compensation upon the making of a grant to a Land Trust, could turn a power of alienation to account by obtaining a premium from its lessee upon the grant of a lease and thereby expose the Commonwealth to liability to pay to the lessee compensation assessable by reference, inter alia, to the premium paid. Secondly, the acquisition which s. 11 requires the Commonwealth Minister to "ensure" before he recommends a grant to a Land Trust is an acquisition "by the Crown by surrender or otherwise", the Crown being defined (as a result of the No. 3 Amending Act of 1978) as "the Crown in right of the Commonwealth or the Crown in right of the Northern Territory or both, as the case requires". A lease granted under the Crown Lands Act cannot now be surrendered to the Crown in right of the Commonwealth, and there is no means whereby the Commonwealth Minister might "ensure" that such a lease be acquired by surrender if the Northern Territory Minister should be unwilling to accept such a surrender. If the lease were acquired by the Commonwealth, the lessee's interest would not merge in the reversion and a liability for rent reserved under the lease to the Crown in right of the Northern Territory would rest upon the Commonwealth - a liability inconsistent with the Commonwealth's right to make a grant of the land under s. 12(1)(a) without payment of compensation. In my opinion, the Parliament did not contemplate that the operation of the scheme contained in ss. 11, 12, 50 and 71 of the Land Rights Act would be affected by grants of leases made by the Minister of the Northern Territory Government of parcels of land under claim. The Self-Government Act does not permit the Northern Territory Minister to exercise his ministerial powers so as to affect the operation of that scheme, for the Self-Government Act is a general law the operation of which does not affect the operation of the more particular provisions of the Land Rights Act: generalia specialibus non derogant. No contrary implication can be drawn from s. 13 of the Land Rights Act, which stands outside the scheme for the making of claims to land under s. 50(1)(a). Section 13 is concerned with the other scheme which the Act provides for restoring land to Aboriginal control, namely, the scheme for the vesting of the Sch. 1 (Reserve) lands. The two schemes are distinct, though complementary. It follows that a Northern Territory Minister is unable to grant a lease that would affect the rights of applicants in respect of land under claim or the performance by the Commonwealth Minister of his functions in relation to that application.

[68]

A separate argument was submitted on behalf of the Attorney-General for the Northern Territory that several areas of land subject to claim by the traditional owners were not Crown land and that these areas were not available for claim when the claim was made. These were areas of reserves, stock routes, and other parcels of land devoted to public purposes. The submission was based upon the definition of Crown land in s. 3(1) which excludes "land set apart for, or dedicated to, a public purpose under the Lands Acquisition Act 1955 or under any other Act". The exclusion is restricted to land that has been set apart or dedicated under particular statutory authority - Crown land set apart or dedicated under some other authority is not excluded. None of the areas to which this submission was directed were set apart or dedicated in exercise of a power conferred in that behalf by the Lands Acquisition Act or by an enactment of the Commonwealth Parliament, though several areas were said to have been set apart in exercise of a power conferred in that behalf by a law of the Northern Territory. The Land Rights Act draws a clear distinction between what is done under a law of the Northern Territory and what is done under a Commonwealth Act. A clear example is to be found in s. 18B(1)(a)(i) which speaks of a grant in respect of land "under the Atomic Energy Act 1953 or any other Act authorizing mining for minerals or any law of the Northern Territory". The term "law of the Northern Territory" is frequently employed in the definition section (s. 3), wherein the term is itself defined, as well as in the general provisions of the Act. What is done under a law of the Northern Territory is not treated as having been done under a Commonwealth Act which supports the law of the Northern Territory: see, e.g., the definition of Authority in s. 3(1). Areas of land which have been set apart de facto or which have been set apart or dedicated under a law of the Northern Territory no doubt require special comment by the Land Commissioner when he makes his report and comments pursuant to s. 50(3), but those areas of land do not fall outside the category of Crown land merely by reason of their having been set apart or dedicated under an authority other than a Commonwealth Act.

[72]

The one qualification to my concurrence in the judgment of Brennan J. is that, as at present advised, I am not persuaded that the effect of the provisions of the Act is to freeze completely all land in the Northern Territory which is the subject of a valid and undetermined claim or that the Government of the Northern Territory is deprived of all powers of dealing with such land. The making of a valid claim under the Act is the first of a chain of related steps, all authorized under the provisions of the Act, which might ultimately lead to the grant of a fee simple in the subject land to a Land Trust. The effect of the making of a valid claim is to enliven the relevant provisions of the Act in relation to the claimed land with the result that the Government of the Northern Territory is deprived of power to deal with the land the subject of the claim in any manner which would impede or delay either the functions and procedures authorized by the Act or any grant of the land to a Land Trust consequent upon the claim. Thus, as regards land which is the subject of a valid and undetermined claim, the Northern Territory Government is precluded from granting any estate, interest or right which would, if the grant were valid, enable the grantee, either by the assertion of an adverse interest or by a claim for compensation, to impede or prejudice the grant of an estate in fee to a Land Trust consequent upon the claim. As at present advised, however, it appears to me that there is something to be said for the view that the Northern Territory Government is not precluded from dealing with the land in a manner which would neither impede nor prejudice the functions and procedures authorized by the Act or any consequential grant of the land to a Land Trust. On that view, it would, for example, be competent for the Northern Territory Government to grant a lease or licence, whether to the Aboriginal claimants or others, to occupy or use the land pending the determination of the claim provided that nothing in such lease or licence purported to confer any estate or interest extending beyond the making of any consequent grant of the land to a Land Trust or to authorize anything that could either be harmful to any Aboriginal site on the land or prejudice the performance of functions or the implementation of procedures under the Act. The question whether that view be correct has not, however, been fully argued in the present case and I refrain from forming any final opinion in relation to it at this stage.

At a glance

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Before

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Judgment (72 paragraphs)

Parties

Cases Cited (1)

Cited By (1)