R v Kearney; Ex parte Japanangka

In the meantime, following the first intimation to the Commissioner of the leases having been granted, the prosecutor sought and obtained from this Court an order nisi for writs of prohibition and certiorari directed to the Minister for Lands and the Northern Territory Development Land Corporation. After the Commissioner gave his ruling on the scope of his function under s. 50 of the Aboriginal Land Rights (Northern Territory) Act 1976 Cth, as amended ("the Land Rights Act" or "the Act"), the prosecutor again approached this Court and secured an order nisi for a writ of mandamus directed to the Commissioner requiring him to exercise according to law the functions conferred and imposed upon him by s. 50 of the Act in relation to the whole of the claim made under the Act.

In the course of argument before this Court on the return of the orders nisi, Mr. Castan, counsel for the prosecutor, informed the court that all the relief sought by the prosecutor would now be met by the making absolute of a writ of mandamus directed to the Commissioner. He agreed that the order nisi for writs of prohibition and certiorari should be discharged. Mr. Castan also re-stated the grounds on which the prosecutor sought the writ of mandamus. These grounds were as follows:

1. The land in question having been unalienated Crown land when the application was made in accordance with s. 50 of the Act, the Commissioner was bound to continue to deal with the application whether or not the leases were effective to grant an interest in the land.

2. The leases were ineffective because, being inconsistent with the operation of the Land Rights Act, the Minister lacked the executive authority to grant them: cf. Northern Territory (Self-Government) Act 1978 Cth, s. 35 and the Northern Territory (Self-Government) Regulations, reg. 4(4).

3. Even if the leases are effective, the land so granted remained unalienated Crown land because the lessee, the Northern Territory Development Land Corporation, is simply the Crown by another name.

4. The Devils Marbles Conservation Reserve has at all times been unalienated Crown land because notwithstanding the grant of a fee simple to the Conservation Land Commission that Commission is simply the Crown by another name.

I now address the submissions advanced by Mr. Castan in support of these grounds. So far as concerns the first ground, it is sufficient to refer to my reasons for judgment in relation to an application for a writ of mandamus touching the Jawoyn (Katherine Area) Land Claim which have just been published. The two cases were argued together and Mr. Caston was content to adopt the arguments advanced by Mr. Sher in support of that ground. For the reasons which I have expounded at length in that case, I am unable to accept the proposition.

The inconsistency argument is also analogous to an argument which I have rejected in Reg. v. Kearney; Ex parte Northern Land Council [4] . If on its proper construction the Act contemplates that that which has happened may happen and allows it, then the happening is consistent with the Act. Mr. Castan relies on s. 35 of the Northern Territory (Self-Government) Act and the regulations made thereunder in support of this ground. Section 35 provides that the regulations may specify the matters in respect of which the Ministers of the Territory are to have executive authority. So far as material, the regulations provide as follows:

Subject to sub-regulations (2) and (4), the Ministers of the Territory are to have executive authority under section 35 of the Act in respect of the following matters:

Land, public and private (including internal waters)

(2) Subject to sub-regulation (6), a matter specified in sub-regulation (1) shall not be construed as including or relating to -

(b) rights in respect of Aboriginal Land under the Aboriginal Land Rights (Northern Territory) Act 1976.

(4) A matter specified in sub-regulation (1) shall be construed subject to the provisions of this regulation, the Act [that is, the Northern Territory (Self-Government) Act] and any other Act and regulations under another Act in force in the Territory, and so as not to be inconsistent with those provisions, to the intent that, where such a matter would, but for this sub-regulation, have been construed as being so inconsistent, it shall nevertheless be a matter for executive authority under section 35 of the Act to the extent to which it is not so inconsistent

It is unnecessary to set out sub-reg. (6). 1. Ante, pp. 376-389.

Sub-regulation (4) clearly limits the executive authority of Ministers of the Northern Territory to actions which are not inconsistent with any Commonwealth Act or regulations in force in the Territory. But it does not advance the prosecutor's argument once it has been established that the Land Rights Act does not bar the alienation of Crown land by the Minister for Lands of the Northern Territory until such times as that land becomes Aboriginal land. If that be the legislative policy which the Act expresses, how can it be said that to grant these leases is to frustrate the operation of a Commonwealth Act? Of course, it goes without saying that the policy contemplates that the executive authority of the Minister in question will be exercised in good faith and for the purposes of the Crown Lands Act.

That the policy is as I have expressed it finds confirmation in the Northern Territory (Self-Government) Regulations. It will be seen from the extracts which I have quoted that executive authority is conferred with respect to land and land use but subject to sub-reg. (2). That sub-regulation expressly limits that executive authority so as not to include or relate to rights in respect of Aboriginal land under the Land Rights Act. I cannot see how the Parliament could express its will in this regard more clearly than it has done. It is not until Crown land becomes Aboriginal land that the authority of the Northern Territory with respect to it is curtailed.

The third ground on which the prosecutor seeks the writ is that the areas of land in question continue to satisfy the definition of "unalienated Crown land" as it is used in s. 50(1)(a) of the Act. That term means -

Crown land in which no person (other than the Crown) has an estate or interest, but does not include land in a town. Mr. Castan argues that for the purposes of this definition the Land Corporation is the Crown, with the consequence that notwithstanding the grant of leases to it the land remains unalienated Crown land.

The Territory Development Act establishes two corporate bodies. The Northern Territory Development Corporation is set up with the function of assisting in the development of industry in the Territory by the provision of money, resources and advice (s. 15). In the exercise of its powers and the performance of its functions it is subject to the directions of the Minister (s. 17). The second body which is established is the Land Corporation. The material provisions of the Territory Development Act with respect to the Land Corporation are as follows:

(1) The Land Corporation is not an authority or instrumentality of the Crown

(2) The Land Corporation is not subject to the control and direction of the Minister or the Crown.

(1) The function of the Land Corporation is to acquire, hold and dispose of real property (including any estate or interest in real property) in accordance with this Act and it may acquire and hold such property notwithstanding any other law in force in the Territory which would restrict or otherwise limit the capacity of the Land Corporation to acquire and hold such property.

(2) The Land Corporation has power to do all things necessary or convenient to be done for or in connexion with or incidental to the carrying out of its function.

(3) Any moneys payable by the Land Corporation for or incidental to the acquisition of any estate or interest in real property may be advanced by the Corporation on such terms and conditions as the Corporation thinks fit.

(4) Any moneys payable to the Land Corporation in respect of estates or interests in real property held or disposed of by the Land Corporation shall be paid to the Corporation, whose receipt shall be a sufficient discharge thereof, and any moneys payable by the Land Corporation in respect of estates or interests in real property held by the Land Corporation may be paid by the Corporation.

(5) Notwithstanding anything contained in the Stamp Duty Act, no stamp duty shall be payable on any instrument by which any property or interest is granted, assured to or vested in the Land Corporation.

(6) The Corporation has the care, control and management of all land acquired by the Land Corporation.

(1) The Administrator may, by notice in the Gazette, declare any land in respect of which -

(a) all the right, title and interest is vested in the Territory; or

(b) no person, other than the Territory or the Land Corporation, holds a right, title or interest,

(2) Upon the publication of a notice under sub-section (1), all right, title and interest, both legal and beneficial, held by any person in respect of the land (including any subsoil), described in the notice, but not in respect of any minerals, becomes, by force of this sub-section, vested in the Land Corporation as though the notice were an alienation in fee from the Crown by way of grant to the Land Corporation.

(3) Upon lodgement of a copy of a notice under sub-section (1) in relation to land with the Registrar-General within the meaning of the Real Property Act or the proper officer controlling any official register or record of the land described in the notice, the Registrar-General or that officer shall deal with the copy of the notice as though it were an instrument of transfer or conveyance of all the right, title and interest in the land to the Land Corporation.

Mr. Castan concedes that the Land Corporation holds an estate in the land but the submission is that when one has regard to the scheme of the Territory Development Act and the roles and relationship of the two Corporations the conclusion should be drawn that in reality, at least for the purposes of the Land Rights Act, the land continues to be Crown land in which no person (other than the Crown) has an estate or interest. He describes the Land Corporation as a bare trustee, in effect holding the land for the Northern Territory Development Corporation which is expressly given the care, control and management of the land and is subject to the directions of the Minister. It is an essential step in the argument that the latter Corporation is itself the Crown, a conclusion which in my opinion is not necessarily to be assumed. Be that as it may, an insuperable obstacle in the way of accepting the submission is the plain declaration in s. 25D that the Land Corporation is not an authority or instrumentality of the Crown. Such a declaration cannot simply be ignored unless a court is free to say that a legislature does not mean what it says. I can appreciate that in some circumstances a legislative scheme such as this may foster a sense of helplessness in claimants under the Land Rights Act. But in my view it simply reflects the fact that in legislating for land rights for Aboriginals the Parliament of the Commonwealth was faced with the necessity of recognizing the possible justice of competing interests and making provision in the legislation to accommodate them.

The fourth ground advanced for the prosecutor relates to the Devils Marbles Conservation Reserve. In this case the fee simple estate in the reserve was alienated from the Crown long before there was any application to the Commissioner in respect of it. The estate is held by the Conservation Land Corporation, a body corporate established by the Conservation Commission Act N.T.. In addition to that Corporation, the Act establishes the Conservation Commission of the Northern Territory. The legislative scheme embracing these two Corporations appears to be identical to the scheme of the Territory Development Act. In particular, s. 29 provides that the Corporation is not an authority or instrumentality of the Crown and is not subject to the control and direction of the Minister or the Crown. The sole function of the Corporation is to acquire, hold and dispose of real property in accordance with the Act (s. 39). Mr. Castan argues that in holding that property the Corporation holds it for the Crown and that the Court should hold that it remains Crown land for the purposes of the Land Rights Act. In my opinion, the submission must fail for the reason that to uphold it would require the Court to ignore the plain declaration of the legislature in s. 29.

The conclusion to which I have come makes it unnecessary to consider a submission advanced by Mr. Ellicott directed to showing that none of the areas in issue in these proceedings fell within the definition of Crown land in the Land Rights Act. That definition expressly excludes "land set apart for, or dedicated to, a public purpose under the Lands Acquisition Act 1955 or under any other Act". The submission is that each of the areas in question had been set apart, either de facto or de jure, for a public purpose under "any other Act". He concedes that the direct statutory authority upon which he would have to rely for that setting apart was in every case an Ordinance or Act of the Northern Territory. He argues that the words "any other Act" should be construed to include enactments of the Northern Territory legislature as well as Acts of the Commonwealth Parliament; alternatively he submits that since all legislative and executive authority in the Northern Territory has been derived from Commonwealth statutes then even if the phrase is construed so as to be confined to Commonwealth Acts the areas in question would still be excluded from the definition of "Crown land". The objective for which Mr. Ellicott contends may seem reasonable enough, in that there would not seem to be any good reason to distinguish between land set apart for, or dedicated to, a public purpose depending on which legislature authorized it. However, in my opinion, a review of the Land Rights Act makes it plain that when the Parliament uses the phrase "any other Act" it is referring only to Acts of the Commonwealth Parliament. The Act consistently draws a distinction between Commonwealth Acts and those of the Northern Territory. Although it has not been necessary to determine the question for the purposes of the present case the point may be relevant to other cases and for that reason I have expressed my opinion.

An application was made under s. 50(1)(a) of the Aboriginal Land Rights (Northern Territory) Act 1976 Cth ("the Land Rights Act") by, and on behalf of, Aboriginals claiming to have a traditional land claim to an area of land near Tennant Creek. In addition to the area first claimed, several further areas were claimed prior to 29 October 1982. The claimants allege that each of these areas, with the possible exceptions of the Devils Marbles Conservation Reserve and the Bonney Well Historical Reserve, were for the purposes of s. 50(1)(a) unalienated Crown land (as defined in s. 3(1) of the Land Rights Act) when the claim in respect of each area was made.

On 29 October 1982, the Minister for Lands in the Government of the Northern Territory purported to grant to the Northern Territory Development Land Corporation ("the Land Corporation") leases of fifteen parcels of land being land corresponding with or lying within some of the areas claimed under the Land Rights Act. On 17 December 1982 the Aboriginal Land Commissioner, Mr. Justice Kearney, held that it was not competent for him to continue the inquiry under s. 50(1)(a) so far as it related to the leased areas of land because, in his Honour's opinion, "the effect of the alienation is to remove from the Commissioner his pre-existing jurisdiction to inquire into the traditional claim to the lands so alienated".

The claimants obtained an order nisi for writs of prohibition and certiorari directed to the Northern Territory Minister for Lands and Housing and to the Land Corporation in order to challenge the validity of the granting of the leases, and an order nisi for a writ of mandamus directed to the Aboriginal Land Commissioner commanding him to proceed with his inquiry under s. 50(1)(a) in relation to the leased land. On the return of the orders nisi, it appeared that the relief sought by the claimants could be given by way of mandamus directed to the Commissioner, and it is unnecessary to decide whether there is jurisdiction under s. 75(v) of the Constitution to grant relief against a Minister of the Government of the Northern Territory. In resolving the issues upon which the making of an order absolute for mandamus depends, three questions of law fall for decision, namely:

1. Does the Government of the Northern Territory have power to alienate interests in an area of unalienated Crown land which is the subject of a valid claim under s. 50(1)(a) of the Land Rights Act before the claim is finally disposed of? (It will be convenient to refer to such an area in the time before the claim is finally disposed of as "land under claim".)

2. If yes to question 1, does an alienation of an estate or interest in land under claim require the Commissioner to discontinue the performance of his functions under s. 50 with respect to that land?

3. Is the Land Corporation to be regarded as a "person (other than the Crown)" within the meaning of that phrase in the definitions of "alienated Crown land" and "unalienated Crown land" so that an estate or interest in land vested in the Land Corporation makes the land alienated Crown land?

Questions 1 and 2 should be considered together for they raise aspects of a single essential question: whether it is within the power of the Northern Territory Government to halt the performance by the Commissioner of his functions under s. 50 by alienating interests in land under claim.

By s. 6 of the Northern Territory (Self-Government) Act 1978 Cth ("the Self-Government Act"), the Legislative Assembly of the Northern Territory was empowered to make laws for the peace, order and good government of the Territory, a grant that carried legislative power to regulate the disposal of the waste lands of the Crown in the Territory: see The Commonwealth v. Tasmania [5] . The grant of legislative power over waste lands was complemented by s. 69 of the Self-Government Act which vested in the Territory all the interests of the Commonwealth in land in the Territory except for certain interests that are presently immaterial. The alienation of interests in Crown land in the Territory is regulated by the Crown Lands Act N.T., a statute which was in force before, but which has been amended since, the Self-Government Act came into operation. Alienation of Crown land in the Territory, generally speaking, can be effected only under the Crown Lands Act (s. 6), s. 14(1) of which provides:

Subject to this Act, the Minister may, in the name of the Territory by instrument in the prescribed form, grant an estate in fee simple in or a lease of Crown land. 1. (1983) 158 C.L.R. 1, at pp. 208-211.

The Minister authorized to exercise the power to grant estates in fee simple or leases of Crown land used to be the relevant Minister of the Government of the Commonwealth, but now is the relevant Minister of the Government of the Northern Territory: see s. 35 of the Self-Government Act and reg. 4(1) of the Northern Territory (Self-Government) Regulations (S.R. No. 102 of 1978). It follows that, provided the conditions specified in the Crown Lands Act regulating the Minister's exercise of the power of alienation are satisfied (see, e.g., s. 15), a grant of an estate in fee simple or of a lease of unalienated Crown land which the Northern Territory Minister makes by instrument in prescribed form is prima facie effective to confer a freehold or leasehold interest, as the case may be, upon the grantee. Whether the Land Rights Act affects the power of alienation thus vested in the Northern Territory Minister in respect of land under claim is a question which turns upon the true construction and operation of the Land Rights Act, the Self-Government Act and (subject to the Commonwealth Acts) the Crown Lands Act.

On behalf of the Attorney-General for the Northern Territory and the Land Corporation, it was submitted that the operation of the Land Rights Act in respect of land under claim is affected by the grant of an estate or interest by the Northern Territory Minister. It was submitted that, when a lease of "unalienated Crown land" (as defined in the Land Rights Act) is granted, the land ceases to have that character and becomes "alienated Crown land" and that, when an estate in fee simple in "unalienated Crown land" is granted, the land ceases to have that character or to be "Crown land" (as defined in the Land Rights Act). If the Minister is empowered to grant an estate in fee simple in land under claim and exercises that power, he thereby precludes the exercise by the Governor-General of his power to grant an estate in fee simple in that land to a Land Trust pursuant to s. 12(1)(a) of the Land Rights Act. The power of the Governor-General to grant land under s. 12(1)(a) of that Act can be exercised only with respect to Crown land; the Governor-General has no power to grant an estate in fee simple in land the freehold owner of which is a person other than the Crown. A grant by the Minister to a person not the Crown of an estate in fee simple in land under claim, if effective, would change the character of the land so that it is no longer Crown land for the purposes of that Act and would dispose of the estate which a grant under s. 12(1)(a) is intended to vest in a Land Trust. The claim would be aborted for it could not result in the grant under s. 12(1)(a) which is the objective of a claim under s. 50(1)(a).

If the Minister is empowered to grant a lease of land under claim and exercises that power, he would thereby change the character of the land so that it is no longer unalienated Crown land. However, for reasons to be mentioned presently, the claim would not be aborted by the grant of a lease, though a grant under s. 12(1)(a) cannot be made while the lease exists.

If the Northern Territory Minister has power to alienate interests in land under claim and is able thereby to prevent the granting of areas of unalienated Crown land (other than Sch. 1 land) to a Land Trust, a consequence of self-government is that the availability of land for grant under s. 12(1)(a) is within the control of the Northern Territory Government. That consequence is entirely consistent with the submissions made on behalf of the Attorney-General for the Northern Territory. It was submitted that it would be inconsistent with that plenitude of power which self-government is ordinarily understood to confer to regard land under claim as frozen and to treat the power of alienation as sterilized until the claim is disposed of. It was further submitted that when the Land Rights Act intends a freeze upon the creation of interests in land before it becomes Aboriginal land, the Act expressly so provides: see s. 13.

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.

The Land Rights Act does not expressly deny the existence of a power to alienate an estate or interest in land under claim. Nor does it expressly prohibit the exercise of such a power. If the power of alienation is suspended while land is under claim, the suspension must be implied from the Land Rights Act. The scheme contained in the Act for restoring land (other than Sch. 1 land) to Aboriginal use and occupation provides for a grant by the Crown to a Land Trust of an estate in fee simple in land to be used and occupied by the traditional Aboriginal owners of the land and by other Aboriginals who are entitled to use or occupy it according to Aboriginal tradition, a right to apply for the grant being conferred upon the traditional Aboriginal owners of the land: ss. 11, 12, 50 and 71. The procedure for dealing with the claim and for making the grant is prescribed by those sections. A separate function is assigned under the scheme to each of the Commissioner, the Commonwealth Minister and the Governor-General. Applicants do not acquire an interest in the land by making the application. They do acquire, however, a statutory right to have the application investigated, reported on, considered and disposed of in conformity with the statute. Such a right, though not a proprietary interest in the land under claim, will be recognized and enforced in appropriate proceedings. The enforceability of analogous rights arising on the making of a claim under certain mining laws, has long been recognized: see Ex parte Mills; In re Mills [6] ; McLean v. Rowe [7] ; R. v. Warden at Rockhampton; Ex parte McPaul and Richardson [8] ; Wade v. New South Wales Rutile Mining Co. Pty. Ltd. [9] . The remedy of mandamus is available to enforce the right or, more precisely, to compel performance of the duties imposed by the Act upon the Commissioner and the Commonwealth Minister respectively: Reg. v. The Commonwealth Court of Conciliation and Arbitration; Ex parte Ellis [10] .

1. (1881) 1 Q.L.J. 1. 2. (1925) 25 S.R. (N.S.W.) 330. 3. [1938] St.R.Qd 68, at p. 70; 11 A.L.J. 105, at p. 106. 4. (1969) 121 C.L.R. 177. 5. (1954) 90 C.L.R. 55, at pp. 64-65.

The duties imposed by the Act would have become a dead letter if the Parliament, in conferring self-government on the Territory, had wholly divested the Commonwealth of its power over the alienation of Crown lands in the Territory and had thereby impliedly repealed the provisions of the Land Rights Act relating to the granting of estates in fee simple in Crown land in the Territory to Land Trusts. However, by the Aboriginal Land Rights (Northern Territory) Amendment Act (No. 3) 1978 the Parliament inserted s. 3A into the Land Rights Act and provided that it was to come into operation contemporaneously with the Self-Government Act. Section 3A reads:

3a. (1) Notwithstanding any law of the Northern Territory, the application of this Act in relation to Crown land extends to Crown land that is vested in the Northern Territory.

(2) Notwithstanding any law of the Commonwealth or of the Northern Territory, the Commonwealth is not liable to pay to the Northern Territory any compensation by reason of the making of a grant to a Land Trust of Crown land that is vested in the Northern Territory.

The Parliament thus ensured that the Commonwealth retained the power to make a grant of an estate in fee simple in Crown land in respect of which an application has been validly made pursuant to s. 50(1)(a) of the Land Rights Act. The statutory rights of Aboriginal applicants under that Act were not diminished by the conferring of self-government in the Territory.

However, if, prior to self-government, those rights were liable to extinction by the grant of an estate in fee simple by a Commonwealth Minister pursuant to the power conferred by s. 14 of the Crown Lands Act, they are now equally liable to extinction by exercise of the same power by a Northern Territory Minister. On the other hand, if, prior to self-government, those rights were immune from extinction by grant of an estate in fee simple, they are now equally immune. The Self-Government Act and the regulations made thereunder gave no greater power or authority to the Northern Territory Minister with respect to the granting of an estate in fee simple in land under claim than the power and authority of the Minister of the Commonwealth Government who had theretofore been authorized to exercise the power. That power is created by the Crown Lands Act, a law of the Northern Territory. It is beyond the capacity of a law of the Northern Territory or of the exercise of any power which such a law confers to affect the operation of a law of the Commonwealth or to destroy or to detract from a right thereby conferred unless a law of the Commonwealth so provides, expressly or by implication: seeFederal Capital Commission v. Laristan Building and Investment Co. Pty. Ltd. [11] ; Webster v. McIntosh [12] . By whomsoever the Crown Lands Act power to grant an estate in fee simple in Crown lands was or is exercisable, it could not be exercised to destroy the statutory right conferred upon applicants in respect of land under claim unless a law of the Commonwealth so provides. There is no law of the Commonwealth which does so provide.

1. (1929) 42 C.L.R. 582, at p. 588. 2. (1980) 49 F.L.R. 317, at pp. 319-321; 32 A.L.R. 603, at pp. 605-606.

It is impossible to suppose that the Parliament intended to permit the procedure prescribed by ss. 11 and 50 of the Land Rights Act - investigation, report and recommendation by the Commissioner followed by consideration and recommendation by the Minister to the Governor-General - to be set at nought by a grant of an estate in fee simple under the Crown Lands Act. In practice, it was no doubt open to the Commonwealth Government prior to the Self-Government Act to decide both to reject a claim and to grant an estate in fee simple under the Territory Act, but it was not open to the Commonwealth Government to grant an estate in fee simple under the Territory Act before an existing claim under the Commonwealth Act had been disposed of. That position is unchanged.

The power to grant a lease of land under claim depends on somewhat different considerations. Although the grant by the Crown of a lease of land under claim to a third party would not entirely preclude the subsequent granting of an estate in fee simple in that land to a Land Trust, a recommendation for a grant to a Land Trust could not be made during the term of the lease; the lease would first have to be surrendered to or otherwise acquired by the Crown. The existence of a lease would directly affect the rights of applicants who had made a claim in respect of unalienated Crown land - not by aborting their claim, but by deferring the making of a recommendation by the Minister (if he should decide to make a recommendation) until the lease expires or is surrendered to or otherwise acquired by the Crown. The existence of the lease would be a factor for the Commonwealth Minister to take into account in deciding whether to make a recommendation for a grant to a Land Trust and, if he decided to make a recommendation, the cost of acquisition of the lease would have to be borne by the Commonwealth. A grant of a lease of land under claim would thus detract from the rights of applicants under the Land Rights Act and would place all burden upon the taking of a decision to recommend a grant to a Land Trust. But the Crown Lands Act, a law of the Northern Territory, cannot support the exercise of a power to grant a lease which would affect the operation of the Land Rights Act, a law of the Commonwealth, unless a law of the Commonwealth so provides, expressly or by implication. The Land Rights Act, as a law of the Commonwealth, must be given its full operation before the scope of a power created by a law of the Territory or the consequences of its exercise can be ascertained.

Unless the provisions of s. 11(1)(d) and (1AD)(e) of the Land Rights Act can be seen as a legislative recognition of the power to grant a lease of land under claim, the power to grant a lease under a law of the Northern Territory cannot be held to extend to land under claim. Assuming that, prior to self-government, those provisions were intended to apply to the acquisition of a lease of land under claim granted after the making of the claim, the measure of the Commonwealth's burden of acquiring the lease would have depended on the terms of the lease granted by the Commonwealth itself. After self-government, or the assumed hypothesis, the Northern Territory Government could determine the term, rent and conditions of a lease of land under claim and could thereby affect the measure of the burden placed upon the taking of a decision to recommend a grant under s. 12(1)(a). Such indicia as are to be found in the Land Rights Act and particularly in the No. 3 Amending Act of 1978 suggest that the Parliament did not contemplate that a Minister in the Northern Territory Government might be able to grant a lease of land under claim.

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.

It was submitted that such a freezing of the Northern Territory's power to deal with its unalienated Crown lands is inconsistent with the grant of self-government and with the ability of the Government of the Territory to develop the Territory in accordance with its own policies. That consideration is of little assistance in solving the legal problem posed by the operation of the several Acts to which I have referred. That problem has arisen because the Parliament, having conferred on the Governor-General a power of alienation of land under claim, then permitted the concurrent existence in a Northern Territory Minister of another power of alienation, and it is necessary to chart the boundaries within which those powers may be exercised with respect to the same parcel of land.

The prospect of conflict between the two governments in the exercise of the respective powers is manifest, but the legal solution to the possibility of political conflict thus created does not depend upon political considerations. The legal solution requires the legislative will of the Parliament with respect to the exercise of the powers to be ascertained from the relevant statutory provisions and made effective. The legal solution accords priority to the interests arising under the Land Rights Act over those arising under the Crown Lands Act. It follows that the Northern Territory Minister had no power to make the purported grants of leases of land under claim in the present case. Areas of land that were unalienated Crown land when a claim under s. 50(1)(a) was made did not cease to be unalienated Crown land on 29 October 1982 when the leases were purportedly granted. The first question posed earlier must be answered "No".

The Commissioner was wrong to cease his inquiry under s. 50(1)(a) with respect to those areas. He must continue that inquiry unless there are other grounds for upholding his decision not to do so. He would have been bound to continue that inquiry in respect of all land under claim even if the leases had been validly granted for reasons which I have stated in Reg. v. Kearney; Ex parte Northern Land Council [13] . Had the leases been validly granted, nevertheless the second question would have been answered "No". However, it has seemed desirable to deal with the question of the validity of the leases as that question is relevant to the functions that the Commissioner must now proceed to perform under s. 50 and possibly to the Minister's decision under s. 11.

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.

However, it appears that there are three areas of land claimed that were not or may not have been unalienated Crown land when the claim was made: Special Purpose Lease No. 570 (the Devils Marbles Conservation Reserve), Portion 475 (within the area of Portion 2344), and Special Purpose Lease No. 563 (the Bonney Well Historical Reserve). I agree with the reasons of the Chief Justice for excluding only the first of these areas from the order for mandamus. I agree also with his reasons for holding that the Land Corporation, in which the Devils Marbles Conservation Reserve is vested, is "a person (other than the Crown)" within the meaning of that phrase in the definition of "alienated Crown land". Accordingly, the third question must be answered "Yes".

The appropriate order is an order absolute for mandamus directing the Commissioner to perform the functions referred to in s. 50 of the Land Rights Act in respect of all areas claimed on behalf of the claimants save the area of Special Purpose Lease No. 570 (the Devils Marbles Conservation Reserve). The respondent in No. M23 of 1983 should pay the prosecutor's costs. The order nisi in No. M80 of 1982 should be discharged and the costs of the respondents in that matter should be paid by the prosecutor.

In these matters, I have come to the conclusion that the purported grant by the Government of the Northern Territory of leases in perpetuity of land which was the subject of a traditional land claim under the Aboriginal Land Rights (Northern Territory) Act 1976 ("the Act") was ultra vires. Subject to the qualification mentioned in the next paragraph of this judgment, I agree with the reasons given by Brennan J. for that conclusion. It follows that those purported leases constituted neither an impediment to the exercise by the Aboriginal Land Commissioner of his functions under the Act in relation to that land nor a justification for a refusal to exercise those functions.

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.