R v Kearney; Ex parte Jurlama

On 26 February 1979 the Central Land Council, an Aboriginal Land Council established under s. 21 of the Act, lodged an application under the Act on behalf of a number of Aboriginals claiming to have a traditional land claim to an area of land at Daguragu in the Northern Territory. The bulk of the land claimed was alienated Crown land in which all estates and interests not held by the Crown were held by, or on behalf of, Aboriginals, although some of it was unalienated Crown land. It is convenient to refer to the whole area in respect of which the claim was made as "the claim area". The claim was made under s. 50 of the Act, and was made on behalf of the Gurindji people, whose members belong to twelve local descent groups. The present matter concerns Group 11, the members of which make a claim in respect of a small area of land in the shape of a triangle in the south-western corner of the claim area. The triangular section is bounded on the north-east by the Victoria River which intersects the western and southern boundaries of the claim area.

The traditional country of Group 11 of the Gurindji lies to the south of the Victoria River, and most of it is outside the claim area. The triangular section forms only a small part of the land traditionally owned (in the sense suggested by the definition of traditional Aboriginal owner in s. 3(1) of the Act, to which I shall later refer) by Group 11. The boundary of the claim area bears no relation to Aboriginal traditions, but is dictated by the fact that s. 50(1)(a) of the Act allows an application to be made only in respect of 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; it therefore brings about an arbitrary division of the land traditionally owned by Group 11. On the traditionally owned land outside the claim area, and to the north-west, south and south-west of the triangular section, were a number of sites of the kind referred to in the definition of traditional Aboriginal owners in s. 3(1) of the Act. There were, however, no such sites on the triangular section itself. The learned Aboriginal Land Commissioner (who at the time was Toohey J.) held that in these circumstances the members of Group 11 were not the traditional owners of the triangular section within the meaning of the Act, and that no traditional ownership in terms of the Act had been established in respect of that area. Nevertheless, he suggested that if the Minister was satisfied that there should be a grant to a Land Trust of the claim area except for the triangular section, it would be appropriate to consider whether the triangular section might also become Aboriginal land. He suggested that it might be possible (inter alia) for the holder of the pastoral lease on which the land was situated to surrender the triangular section to the Crown in right of the Northern Territory, and for the Crown to make a grant of the land to the Land Trust created as a result of his recommendations. We have been informed that the Government of the Northern Territory has indicated that it is prepared to make such a grant, but that doubts have been expressed as to whether it would be possible for a Land Trust to accept it (see s. 5 of the Act). In the circumstances the question is not merely academic and there is no reason why we should not answer the question which has been raised in these proceedings.

The question whether the Aboriginal Land Commissioner was correct in the view that he took depends on the construction of s. 50(1)(a) and of certain of the definitions in s. 3 of the Act. Section 50(1)(a) reads as follows:

(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

Under s. 11, the Minister may on receipt of such a recommendation by the Commissioner, establish a Land Trust and recommend to the Governor-General that a grant of the land be made to that Land Trust; under s. 12 the Governor-General may execute a deed of grant accordingly. Section 3(1) contains the following definitions: "Aboriginal tradition" means the body of traditions, observances, customs and beliefs of Aboriginals or of a community or group of Aboriginals, and includes those traditions, observances, customs and beliefs as applied in relation to particular persons, sites, areas of land, things or relationships.

"traditional Aboriginal owners", in relation to land, means a local descent group of Aboriginals who -

(a) have common spiritual affiliations to a site on the land, being affiliations that place the group under a primary spiritual responsibility for that site and for the land; and

(b) are entitled by Aboriginal tradition to forage as of right over that land.

"traditional land claim", in relation to land, means a claim by or on behalf of the traditional Aboriginal owners of the land arising out of their traditional ownership.

It is apparent from these definitions that Aboriginals can be traditional Aboriginal owners, within the meaning of the Act, in respect of land, only if they are a local descent group of Aboriginals who have common spiritual affiliations to a site on that land. Those spiritual affiliations must place the group under a primary spiritual responsibility for that site and for that land. In addition, the group must be entitled by Aboriginal tradition to forage as of right over that land, but that is not an aspect of the matter that concerns us in the present case. If the triangular section of the claim area is to be considered in isolation, the members of Group 11 are not the traditional Aboriginal owners of it, because there are no sites on it. If, on the other hand, regard is had to the larger area which includes the triangular section but includes land outside the claim area as well, the claimants may be the traditional Aboriginal owners of that larger area; whether they are or not will depend on what findings are made by the Aboriginal Land Commissioner on the questions of fact raised by the definition. The question then is whether the claimants, to be entitled to apply under s. 50(1)(a), must be the traditional Aboriginal owners of the land in respect of which the claim is made, in the sense that there must be sites on that land, or whether it is enough that they are the traditional Aboriginal owners of a larger area of which the land the subject of the claim forms part.

Since no application may be made under s. 50(1)(a) in respect of alienated Crown land in which all interests not held by the Crown are not held by or on behalf of Aboriginals, or to unalienated Crown land which is land in a town (see the definition of unalienated Crown land in s. 3(1)), it is obvious that it will sometimes not be possible for the traditional Aboriginal owners to claim the whole of the land which, by tradition, they own. The land available to be claimed may, as in the present case, form quite a small part of the land traditionally owned. Section 50(1)(a) permits a claim to be made "by or on behalf of Aboriginals claiming to have a traditional land claim to an area of land " The "traditional land claim", by definition, "means a claim by or on behalf of the traditional Aboriginal owners of the land arising out of their traditional ownership". A claim by Aboriginals in respect of a part of an area the whole of which is traditionally owned by them is a claim arising out of their traditional ownership even though, because there are no sites on the land in respect of which the claim is made, those Aboriginals would not be traditional Aboriginal owners of that part if it were considered in isolation. The introductory words of s. 50(1)(a) therefore appear to have the effect that a claim may be made in respect of an area of land which, if viewed in isolation, could not be the subject of traditional Aboriginal ownership, because it has no sites on it, provided that the claim arises out of traditional ownership of a larger area. So far the words of s. 50(1)(a) favour the argument put by the applicants in the present case.

The section goes on to provide that on such an application being made one of the functions of the Commissioner is to ascertain whether the Aboriginals by, or on behalf of, whom the claim is made, or any other Aboriginals, are the traditional Aboriginal owners of the land. In this context, it seems to me that the test required by the definition is not intended to be applied to the land the subject of the claim viewed in isolation. It is enough that the Aboriginals are the traditional Aboriginal owners of the land claimed, because it forms part of a larger area of which they are, without a doubt, the traditional Aboriginal owners. If the section is ambiguous it should in my opinion be given a broad construction, so as to effectuate the beneficial purpose which it is intended to serve. There can be no sensible reason why an application and a recommendation should not be made in respect of a piece of land which forms part of an area of which the applicants are the traditional Aboriginal owners, and which is land available to be claimed under s. 50(1)(a), simply because, by an accident of boundaries, the sites which give the land its character fall outside the part of the land which is available to be claimed.

This conclusion is supported, if not compelled, by the decision in In re Toohey; Ex parte Stanton [1] . In that case the argument was that the Commissioner, in exercising his functions under s. 50(1), had failed to have proper regard to the significance of sites located off the land in respect of which the claim was made. It was held that the Commissioner had not misdirected himself, since he had not in fact disregarded sites outside the claimed area. However the majority of the Court held that the land in respect of which claimants may be the traditional Aboriginal owners within the meaning of the definition is not necessarily confined to land the subject of a claim. Wilson J., with whom Mason J. and I agreed, said [2] :

Presumably the land in respect of which the Aboriginal group are the traditional owners will often extend beyond the area of the actual site or sites to such adjacent land as is sufficiently connected with those sites. In those circumstances, it may happen that such ownership will extend to an area of unalienated land notwithstanding that the relevant sites are located on alienated land. However, this line of thought cannot be taken too far. The existence of sites on the land which is the subject of the claim will always, in a practical sense, retain primary significance in proving traditional ownership. If that ownership has to be proved by reliance on sites located elsewhere, then cogent evidence would no doubt be required in the form of dreaming tracks or other material to link the land, the subject of the claim, to those sites and so establish a primary spiritual responsibility for it. Brennan J. said [3] : It would be erroneous for the Commissioner to reject a traditional land claim merely because the unalienated Crown land which comprises a part of the land claimed does not contain any sites of spiritual significance to the claimants. The existence of such sites somewhere on the country of a local descent group is material to the responsibility of the group for the whole of their country and, provided the unalienated Crown land is part of that country and is the subject of a traditional land claim, the absence of sites of spiritual significance from the unalienated Crown lands is not destructive of the claim. 1. (1982) 57 A.L.J.R. 73; 44 A.L.R. 94. 2. (1982) 57 A.L.J.R., at p. 75; 44 A.L.R., at p. 97. 3. (1982) 57 A.L.J.R., at p. 78; 44 A.L.R., at pp. 102-103.

It follows that the Commissioner was wrong, in the present case, in holding that the fact that the sites were off the land claimed meant that there could be no traditional ownership of it within the meaning of the Act. Whether Group 11 of the Gurindji people were the traditional Aboriginal owners depended upon questions of fact and as Wilson J. said, cogent evidence would be required to link the land, the subject of the claim, to the sites off the land.

For these reasons in my opinion the Aboriginal Land Commissioner did not exercise according to law the functions conferred and imposed upon him by s. 50(1)(a) of the Aboriginal Land Rights (Northern Territory) Act 1976, and a writ of mandamus should issue requiring him to do so.

The Commissioner erred in holding that traditional Aboriginal ownership of land within s. 50(1)(a) of the Aboriginal Land Rights (Northern Territory) Act 1976 ("the Act") is dependent upon the sites giving it that character being actually part of the land claimed, rather than merely linked to it by dreaming tracks or otherwise. This follows from In re Toohey; Ex parte Stanton [4] .

1. (1982) 57 A.L.J.R. 73, at pp 75, 78; 44 A.L.R., at pp. 97, 102-103.

Mandamus should issue to require the Commissioner to exercise according to law the functions conferred and imposed upon him by the Act.

I agree with the order proposed by the Chief Justice and with his reasons for proposing it.

I agree with the reasons for judgment of the Chief Justice and have nothing to add.