R v Kearney; Ex parte Northern Land Council

R v Kearney; Ex parte Northern Land Council - [1984] HCA 15 - HCA 1984 case summary — Zoe

[13]

The present case concerns two areas of land near Katherine. When the application dated 30 March 1978 was made, those areas were "unalienated Crown land" within the meaning of the Land Rights Act, and the application was competent with respect to them. However, by reg. 5 of the Planning Regulations, which took effect on 3 August 1979, it was provided that "the several areas of land specified in Schedule 3 are specified as areas which are to be treated as towns". Part IV of the schedule described an area of 650 square kilometres near Katherine, and the area so described included the two areas now in question. If the Regulations were valid, their effect was that each of those areas became a "town" within the meaning of the Planning Act (see the definition of town in s. 4(1)) and within the meaning of the Land Rights Act: see Reg. v. Toohey; Ex parte Northern Land Council [5] . (The Town Planning Regulations, made on 22 December 1978 under the Town Planning Ordinance N.T., which was repealed by the Planning Act, may have earlier brought about the same result, but it is unnecessary to consider that question.) Assuming that the Planning Regulations were validly made, their effect therefore is that the two areas in question ceased to be "unalienated Crown land" within the meaning of the Land Rights Act. The questions that then arise are whether the mere fact that an application is made under s. 50(1)(a) prevents anything from being done which would take the land out of the class of lands in respect of which an application may be made, and, if not, whether the fact that land the subject of an application has since become a town means that the Commissioner can no longer exercise his functions under s. 50(1)(a) with respect to that land. In the present case, the Commissioner held that he could no longer perform his functions under s. 50(1)(a) in respect of the two areas, unless an attack could successfully be made on the validity of the Regulations, by which he may have meant an attack based on the ground that the Regulations were made for an unauthorized purpose.

[18]

I adhere to the view, which I expressed obiter in Reg. v. Toohey; Ex parte Northern Land Council [10] , that the Land Rights Act does not prevent "unalienated Crown land", the subject of an application, from being alienated, or from being converted into land which is part of a town. It would, in my opinion, require clear words to bring about the result that the mere making of an application would completely inhibit the grant of any estate or interest in, or any action authorized by law which changed the status of, the land in respect of which a claim had been made. Obviously, not all claims which are made will result in the execution of a deed of grant to a Land Trust; to be successful, an application must attract the favourable exercise of three independent discretions - those of the Commissioner, the Minister, and the Governor-General (i.e., the Governor-General in Council : s. 16A of the Acts Interpretation Act 1901 Cth, as amended). It is equally obvious that, as happened in the present case, a very considerable time may in some cases elapse before it is possible finally to dispose of a particular claim. It would in my opinion be gravely inconvenient if large areas of land were to be placed beyond the power of both the Crown and the Legislative Assembly of the Northern Territory, and frozen in their existing situation, simply because an application had been made in respect of them. Nothing in the Land Rights Act supports the view that such a result was intended. All the indications are to the contrary. Special provision is made by a number of sections in Pt VII of the Land Rights Act to place "Aboriginal land" outside the ordinary law of the Northern Territory (see ss. 67, 68, 70) and to restrict the power of the Legislative Assembly in respect of such land: see ss. 73, 74. However the expression "Aboriginal land" means land held by a Land Trust for an estate in fee simple, or land the subject of a deed of grant held in escrow by a Land Council (see the definition in s. 3(1)); it does not include land simply because an application under s. 50(1)(a) has been made in respect of it. When the Act intends that no grant shall be made of an estate or interest in land in respect of which some action is being taken under the Land Rights Act, it so provides expressly: see s. 13, which applies to land the subject of a deed of grant held in escrow by a Land Council. In my opinion, the fact that the application had been made in respect of the two areas now in question did not prevent the making of regulations under the Planning Act which had the effect that the two areas became lands in a town.

[19]

It does not in my opinion follow that the fact that the two areas ceased to be "unalienated Crown land" meant that the Commissioner no longer had any power or duty to perform the functions cast on him by s. 50(1)(a). The Commissioner becomes obliged to perform his functions under s. 50(1)(a) at the time when the application is made, if the land in respect of which the application is made at the time answers the requisite description. There is nothing in the Land Rights Act that divests the Commissioner of his function if the land changes in character. It would seem to be contrary to the policy of the Land Rights Act that it should be possible to put an end to an application validly made under s. 50(1)(a), and to defeat a claim which might be meritorious, by action taken after the application had been made, and with knowledge that it was pending. The fact that the land ceases to answer either of the descriptions contained in s. 50(1)(a) does not necessarily mean that it can no longer be dealt with under ss. 11 and 12. The relevant condition stated in s. 11(1)(a) is that the Commissioner has recommended "that an area of Crown land should be granted to a Land Trust". The sub-section does not refer to "alienated Crown land" or to "unalienated Crown land". Crown land which has become part of a town does not cease to be Crown land. The power given by s. 12 is expressed to be given simply in relation to "land". Clearly enough, if land is "unalienated Crown land" at the time when an application is made, the Minister can make a recommendation, and the Governor-General a grant, notwithstanding that the land has since become part of a town, for it remains Crown land. The same will be true if some person other than the Crown has been granted an estate or interest, other than a freehold interest, in the land. A greater difficulty seems to arise in the case where land has been alienated by a grant in fee simple after an application under s. 50(1)(a) has been made to the Commissioner but before the Commissioner has made his recommendation to the Minister. Although the provisions of s. 11(1)(d) (and similar provisions in s. 11(1AB)(d) and s. 11(1AD)(e)) refer to the acquisition of outstanding estates and interests in alienated Crown land, they could possibly be limited to the acquisition of estates and interests held by, or on behalf of, Aboriginals in alienated Crown land. The obscurity of the legislation in this regard would appear to warrant the attention of Parliament, but the difficulty need not be resolved in the present case, for even if an alienation by a grant of an estate in fee simple would render futile the performance by the Commissioner of his functions under s. 50(1)(a), that does not mean that a similar result follows when the land remains Crown land but has become part of a town.

[33]

The facts underlying these proceedings fall within a short compass. On 30 March 1978 the Northern Land Council ("the prosecutor") made application to the respondent ("the Commissioner") on behalf of Aboriginals claiming to have a traditional land claim to areas of land in the vicinity of the town of Katherine in the Northern Territory. The application was made pursuant to s. 50(1)(a) of the Aboriginal Land Rights (Northern Territory) Act 1976 Cth, as amended ("the Land Rights Act" or "the Act"). It is common ground that at the time of the application the areas included in the claim were unalienated Crown land and therefore open to be claimed pursuant to the Act. The Commissioner commenced the hearing of the application (described as the Jawoyn (Katherine Area) Land Claim) on 7 March 1983. However, in the period of almost five years which intervened between the making of the claim and the commencement of the hearing, changes were made to the zoning of land in the vicinity of Katherine which purported to affect two of the areas (those numbered 2 and 3) included in the claim. On 29 December 1978 Regulation No. 53 of 1978 was gazetted. That Regulation was made under the Town Planning Act 1964 N.T. as amended. It prescribed, inter alia, an area of land adjacent to Katherine "to be subject to the Act as if [it] were part of a town". The areas so prescribed included areas 2 and 3 of the claim. It is said that the result of the Regulation, if effective, was to enlarge the town of Katherine from an area of approximately 39 square kilometres to an area of approximately 4,690 square kilometres. With effect from 3 August 1979 the Town Planning Ordinance was repealed and replaced by the Planning Act N.T.. On the same day Regulation No. 13 of 1979 ("the Regulation"), made pursuant to the latter Act, took effect. The Regulation prescribed an area adjacent to Katherine (which together with the town itself is said to amount to approximately 650 square kilometres) to be treated as a town for the purposes of s. 4 of the Planning Act. Again, the area so prescribed included areas 2 and 3 of the claim. When the hearing commenced in March 1983 the Commissioner ruled that he had no function to perform in relation to the application in respect of areas 2 and 3 because in his view these areas were no longer "unalienated Crown land" within the meaning of that expression in s. 50(1)(a).

[53]

It is desirable now to clarify further the central issue. In the course of argument Mr. Sher affirmed that his primary proposition was that the making of an application under s. 50(1)(a) in respect of unalienated Crown land had the effect of "freezing" that status of the land until such time as the Commissioner concluded his inquiry and, if he recommended that a grant be made, until the procedure outlined in ss. 11 and 12 was completed. That proposition necessarily involved denying to the Northern Territory any power during that period in respect of such land to exercise either the powers of alienation of interests in Crown land which are conferred by the Crown Lands Act N.T., as amended, or the power to create towns or specify areas to be treated as towns pursuant to the Planning Act. However, some attention was given to a construction of the Land Rights Act which would not so drastically affect the powers of the Northern Territory administration. It was suggested that the legislative scheme of the Act could be fully preserved consistently with allowing for the alienation of Crown land to occur subsequently to the making of a land claim but so that any such alienation would not inhibit the Commissioner in the exercise of his functions. In such a case it would be necessary either for such alienation to be defeasible (if that be possible) so as to terminate if the Governor-General should execute a deed of grant in favour of a Land Trust pursuant to s. 12(1) or for the Minister to ensure, pursuant to s. 11(1)(d), that the estates and interests in the land of persons (other than the Crown) are acquired by the Crown. In Reg. v. Toohey; Ex parte Northern Land Council [14] , I expressed the opinion that s. 11(1)(d) was "simply a recognition of the fact that an application may be made under s. 50 in respect of land which is alienated Crown land in which all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals". However, Mr. Sher submits that I was mistaken in holding that opinion and that the existence of the duty of the Minister imposed by the provision is supportive of his alternative construction.

[60]

Turning specifically to s. 50 of the Act, Mr. Sher argues that the duty of the Commissioner plainly arises "on an application being made by or on behalf of Aboriginals claiming to have a traditional land claim to an area of land, being unalienated Crown land " (s. 50(1)(a)). Thereafter any attempt at alienation of the land the subject of the claim is of no effect. Nor is it open to the Northern Territory to incorporate, pursuant to the provisions of the Planning Act, any part of the land into a town or require it to be treated as a town. The basic difficulty which the submission encounters is that the Land Rights Act does not spell out either of these consequences which are said to attend the making of a claim. It could easily have done so. Counsel both for the prosecutor and for the Northern Territory stress, rightly, the very serious consequences that flow from a construction of the Act adverse to that for which each contends. Mr. Sher argues that the legislature could not have intended the policy expressed in the Act to be liable to be frustrated at the eleventh hour, perhaps after the expense and emotional wear and tear of a lengthy inquiry by the Commissioner - and indeed at any time until the delivery of a deed of grant to a Land Trust (s. 12(1)) - by Government action having the effect of rendering the land in question unavailable for claim. Against that, Mr. Ellicott stresses the seriousness of implying a freeze upon the exercise of executive authority conferred under legislation enacted for the peace, order and good government of the Territory. It is not as if the freeze would necessarily operate for only a short time. The claim in the present case was lodged more than five and a half years ago and the Commissioner has not yet reported to the Minister in relation to those portions of the claim which are not affected by the present proceedings. It is not difficult to envisage circumstances arising within a period of that length which would ordinarily make it imperative for a government to respond to the need to create new towns or extend existing ones. Nor can one accept with equanimity the freezing over such a long period of the powers of alienation of Crown land. One can predicate that many inquiries pursuant to s. 50 would be concluded in a much shorter time but it is not in the nature of such inquiries that they proceed with expedition. The claimants must be allowed ample time in which to present their case.

[62]

It is appropriate now to examine other provisions of the Act in the search for indications of the intention of the legislature with respect to the central issue under discussion. Assistance is to be gained from the scheme dealing with Sch. 1 land. Schedule 1 describes a number of areas of land which are to be granted to Aboriginal Land Trusts without any necessity to resort to the procedure of inquiry and report by the Commissioner pursuant to s. 50 and the handling of the Commissioner's recommendations by the Minister pursuant to s. 11 of the Act. Section 4(1) requires the Minister to establish Land Trusts to hold the Crown land described in Sch. 1 and thereupon to recommend to the Governor-General that a grant of an estate in fee simple be made to the appropriate Land Trust (s. 10). Where an area of land described in Sch. 1 is one where a person (other than the Crown) has an estate or interest in the land, the Minister's recommendation will be that the Governor-General execute a deed of grant of an estate in fee simple in favour of the Land Trust and deliver it to the Land Council for the area in which the land is situated to be held in escrow until all of the estates and interests in the land held by a person (other than Crown) have come to an end, whether by surrender to the Crown or otherwise. Thereupon the deed is to be delivered by the Land Council to that Land Trust (s. 10(2)). It is then the function of the Land Trust in such a case to acquire, as and when practicable, the estates and interests of other persons in the land with a view to the surrender to the Crown of those estates and interests. Section 12(3A) provides that a deed of grant in respect of Sch. 1 land shall be expressed to exclude from the grant, inter alia, any land on which there is, at the time of the execution of the deed of grant, a road over which the public has a right of way. A deed of grant of Sch. 1 land which is to be held by the Land Council in escrow takes effect on the date on which it is delivered by the Land Council to the Land Trust (s. 12(4)).

[77]

Having examined in some detail this mosaic of statutory provisions, it is now possible to draw some conclusions as to the approach of the legislature to the question of Aboriginal land rights. In my view, it is impossible to doubt that the central concept around which the entire legislative scheme revolves is the concept of the special character attaching to Aboriginal land. The Act seriously curtails the application of laws of the Northern Territory to such land. Conversely, one must infer that, in the absence of express provision to the contrary, those laws should continue to apply according to their terms to land which has not yet become Aboriginal land. This includes land that is the subject of an application under s. 50. If this were not so, the careful distinctions with which the Act surrounds Aboriginal land would be meaning-less. Section 13(1) may be thought to mark a departure from the general legislative scheme but it is noteworthy that the provision does not leave room for any doubt at all. Once a deed of grant is delivered pursuant to s. 12(1)(b) to a Land Council to be held in escrow, then save as provided in s. 13(2) the Crown may not make a grant of an estate or interest in the land the subject of the deed of grant to any person. This is so, notwithstanding that the deed of grant has not then taken effect (s. 12(4)(b)). But then the clarity and consistency of the legislative scheme is preserved by the express extension of the concept of "Aboriginal land" to include land the subject of a deed of grant held in escrow by a Land Council. Mr. Sher's argument requires the conclusion that the making of an application to the Commissioner pursuant to s. 50(1)(a) has the effect for all practical purposes of converting the land the subject of a traditional land claim into Aboriginal land. I must confess my inability to find any foothold for such a conclusion in the words of the section or elsewhere in the Act. In my opinion, therefore, there is no warrant in the Act for denying the continued application of the laws of the Northern Territory to Crown land within the Territory merely because the land is the subject of an application pursuant to s. 50. The proper construction of the Act requires the further conclusion that should the character of the land change during the pendency of such an application, whether by alienation or by regulation under the Planning Act bringing it within the definition of town in the Act, the Commissioner thereafter has no statutory function to perform with respect to it. The land will have ceased to be "unalienated Crown land" within the meaning of the Act.

[78]

I alluded to this question in Reg. v. Toohey; Ex parte Northern Land Council [15] . The opportunity with which this case has provided me for further consideration of it has confirmed me in the opinion which I then expressed. At that time I offered as an explanation of the possible incongruity of a situation where the actions of the Northern Territory administration might sometimes appear to frustrate not only the hopes and aspirations of the Aboriginal claimants but also the operation of the Commonwealth statute the fact that at the time of the original enactment of the Act the Commonwealth Government retained an overriding role in the alienation of Crown land within the Territory. That situation changed when the Northern Territory achieved self-government on 1 July 1978 but it is quite clear that the Commonwealth Parliament did not then vary the operation of s. 50 of the Act. Had it wished to do so, it could have limited the powers of the Northern Territory with respect to land the subject of an application pursuant to s. 50 at the same time as it amended the Act in other respects. There can be no question of implying such a restriction on the powers of the Northern Territory. The contrary is expressly provided by reg. 4(1) and (2) of the Northern Territory (Self-Government) Regulations made under the Northern Territory (Self-Government) Act 1978 Cth. That regulation conferred executive authority on the Minister of the Northern Territory in relation, inter alia, to land and land use but expressly declared that such authority did not extend to "rights in respect of Aboriginal land" under the Land Rights Act. The proper conclusion is that the Parliament, recognizing the possibility of conflict between the object of the Act and the demands of good government of the Territory, resolved to leave unimpaired the Territory's powers of government until such time as the land became Aboriginal land. In so doing, it trusted the Government of the Territory to act responsibly in the administration of the relevant statutes. In the present case, the Court is not concerned with any question as to whether or not that trust has been vindicated.

[100]

Before a claim is made under s. 50(1)(a) in respect of any parcel of unalienated Crown land, the parcel may be included in a town area or in an area to be treated as a town. The lawful inclusion of such a parcel in a town area or in an area to be treated as a town precludes the making of a claim in respect of that parcel. (It is unnecessary here to consider the question of ulterior purpose affecting the validity of the inclusion of areas 2 and 3 within an area of land to be treated as a town, for those areas were unalienated Crown land when the relevant application was made.) After a claim is made, the Commissioner may hear evidence and is required to comment in his report on the planning or zoning implications of acceding to the claim (pars. (b) and (c) of s. 50(3)). The weighing of competing considerations is a function entrusted to the Commonwealth Minister in deciding whether to recommend to the Governor-General that a grant in fee simple be made to a Land Trust: see Meneling Station. The ultimate power to decide which object should prevail - the object of subjecting an area of Crown land to planning and zoning control or the object of restoring to Aboriginals their traditional rights of occupation and use of that land - is reserved by the Parliament to a Commonwealth Minister after investigation and report by the Commissioner. That reservation is not surprising. The restoration of Crown land in the Northern Territory to traditional Aboriginal use and occupation under the Land Rights Act was retained as a national responsibility when the Northern Territory (Self-Government) Act came into operation: see the Land Rights Act, s. 3A inserted by the Aboriginal Land Rights (Northern Territory) Amendment Act (No. 3) 1978. It would be inconsistent with the high policy expressed in s. 3A to permit the Government of the Northern Territory to pre-empt a decision by the Commonwealth Minister to recommend that Crown land in the Northern Territory, having been validly claimed, become Aboriginal land.

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