R v Toohey; Ex parte Attorney-General

(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 Minister for 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;

(b) to inquire into the likely extent of traditional land claims by Aboriginals to alienated Crown land and to report to the Minister and to the Minister for the Northern Territory, from time to time, the results of his inquiries;

(c) to establish and maintain a register of the traditional land claims referred to in paragraph (b);

"Aboriginal" means a person who is a member of the Aboriginal race of Australia;

(a) land held by a Land Trust for an estate in fee simple; or

(b) land the subject of a deed of grant held in escrow by a Land Council;

"alienated Crown land" means Crown land in which a person (other than the Crown) has an estate or interest, but does not include land in a town;

"Crown Land" means land in the Northern Territory that has not been alienated from the Crown by a grant of an estate in fee simple in the land, or land that has been so alienated but has been resumed by, or has reverted to or been acquired by, the Crown, but does not include -

(a) land set apart for, or dedicated to, a public purpose under the Lands Acquisition Act 1955 or under any other Act; or

(b) land the subject of a deed of grant held in escrow by a Land Council;

"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;

"unalienated Crown land" means Crown land in which no person (other than the Crown) has an estate or interest, but does not include land in a town.

By s. 3 (2) it is provided that: Unless the contrary intention appears, a reference in this Act 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, but does not include a reference to -

(b) an interest arising out of the operation of the Atomic Energy Act 1953 or any other Act authorizing mining for minerals;

(c) an interest arising out of the taking possession, mining or occupation of land by virtue of a miner's right; or

(d) an interest by way of the occupation or use, with the licence or permission of the Crown, of land by an Authority or a mission.

An application was made to the Commissioner by a group of Aboriginals claiming to be traditional owners of the land the subject of the application. The claimants claimed to be members of three named clans. The land the subject of the application was therein described as "An area of Alienated Crown Land in which all estates and interests not held by the Crown are held by, or on behalf of Aboriginals and known as Pastoral Lease 637, (Utopia Station), together with Northern Territory. Portion 1497, being an area of unalienated Crown land previously excised from the aforementioned pastoral lease as a community area for the resident aboriginal group".

The land the subject of the application includes land held for a leasehold estate from the Crown by the Aboriginal Land Fund Commission ("the Fund Commission") which had acquired it prior to the passage of the Act for the purposes of the Aboriginal Land Fund Act 1974 Cth ("the Fund Act "), s. 20.

The Attorney-General for the Northern Territory claimed to be heard, and was heard, by the Commissioner upon the question whether that part of the land the subject of the application which was comprised in the pastoral lease held by the Fund Commission was capable of being the subject of a claim under the Act.

The Commissioner held that that land could be the subject of an application under the Act and was prepared accordingly to assume jurisdiction and deal with the application.

The Attorney-General of the Northern Territory now seeks from this Court an order prohibiting the Commissioner from proceeding to hear the application. The ground of the application for prohibition is that the Commissioner lacks jurisdiction to hear the application because the land to which it relates is not exclusively unalienated Crown land or alienated Crown land in which all estates or interests not held by the Crown are held by, or on behalf of, Aboriginals.

The Fund Act, unlike the Act, is not restricted in its operations to the Northern Territory. It establishes the Fund Commission (s. 4) which is to perform the functions conferred on it by the Fund Act in accordance with any general directions given by the Minister (s. 5). Part IV of the Fund Act establishes the Aboriginal Land Fund and vests it in the Fund Commission (s. 16). Moneys of the Fund may be applied in making grants under s. 19 and in discharging obligations and liabilities of the Fund Commission which arise under the Fund Act (s. 18).

The Fund Commission may make grants of money out of the Fund -

(a) to an Aboriginal corporation to enable it to acquire an interest in land for the purpose of enabling the members of that corporation to occupy that land; and

(b) to an Aboriginal land trust to enable it to acquire an interest in land for the purpose of enabling Aboriginals to occupy that land. (s. 19)

(1) The Commission may, on such terms and conditions, if any, as it thinks fit -

(a) grant to an Aboriginal corporation an interest in land for the purpose of enabling the members of that corporation to occupy that land; and

(b) grant to an Aboriginal land trust an interest in land for the purpose of enabling Aboriginals to occupy that land.

(2) No payment shall be due to the Commission in respect of any interest granted under sub-section (1).

Section 21 (1) gives the Fund Commission power to acquire by agreement any interest in land "for the purposes of s. 20". This power extends to the acquisition of shares in a body corporate for the purposes of acquiring an interest in land held by that body corporate. (s. 21 (2))

"Aboriginal" means an indigenous inhabitant of Australia, and includes an indigenous inhabitant of the Torres Strait Islands;

"Aboriginal corporation" means a body corporate of which all the members for the time being are persons as to whom the Minister is satisfied that they are members of a community of Aboriginals;

"Aboriginal land trust" means a body corporate established by a law of Australia or of a State or Territory and having the function of providing Aboriginals with interests in land or assisting Aboriginals to acquire interests in land;

"land" does not include land set aside under any law as an Aboriginal reserve;

"occupation" includes use, and "occupy" has a corresponding meaning.

The subject land is undoubtedly land acquired by and vested for a leasehold estate in the Fund Commission for the purposes of s. 20 of the Fund Act. The only question which arises in this application is whether the Fund Commission holds all the estates and interests in the land which are not held by the Crown on behalf of Aboriginals within the meaning of s. 50 (1) of the Act.

It is, of course, quite true, as has been submitted, that the words "on behalf of" are words of varying significance and must necessarily take their particular meaning from the context in which they are used. The primary context in the present case is that the words are used in respect to estates and interests in land. By definition, a right against the Crown to the grant of an estate or interest in land is an estate or interest for the purposes of the Act. Secondly, they are used as part of a total expression of "by or on behalf of".

In so far as the word "by" is concerned in that expression, it seems to me beyond question that it refers to an estate or interest in land held by an individual or individuals who is an Aboriginal or who are Aboriginals as defined; that means exclusively of the Aboriginal race of Australia. It would, in my opinion, be extremely strange if the words "on behalf of" used in that total expression were not also referring to individuals; that is to say, the total reference is to estates or interests held by or for individuals whether separately or as members of an identifiable group who are Aboriginals. In my opinion, the expression does not refer to Aboriginals as a class or generally. The extension by definition of an estate or interest to embrace a right against the Crown to a grant of an estate or interest in land to my mind confirms the construction I propose. A right against the Crown is almost necessarily an individual right including a group right by an identified or identifiable group. I can find nothing in the context of the Act, nor in its relationship, if any, to the Fund Act, which would tend, in my opinion, to give the words "on behalf of" any other significance.

Further, I can find nothing in the Act which points to any policy which for its implementation requires the words "on behalf of" to be read as meaning "in the general interest of" or some like expression. The only inference of policy which I can discern is to be derived from the expression under consideration. In denominating the land which might be the subject of an application under the Act, the Parliament has used language well understood in the area of land tenure. The language is of a confining nature, not of an expansive nature. It is evident that the Parliament intended closely to limit the areas of land with which the Commissioner might deal. As I think, Parliament limited these areas to areas in which only the Crown and individual Aboriginals, whether or not as members of an identified or identifiable group of Aboriginals, had a tenure. The proper course, in my opinion, is to give that expression its natural meaning when used as part of a total expression in relation to estates and interests in land. I am unable to draw any real assistance from a consideration which, in many respects, must be speculative as to what was the broad parliamentary purpose behind the two statutory provisions and their relationship, the one to the other. It may be, of course, that the Fund Commission under the Fund Act was thought to be unlikely to acquire traditional land for its purposes. But I have no means of resolving any such question. I share the views of Wright J. expressed in Derbyshire v. Houliston [1] , when construing a section of the Sale of Food and Drugs Act, 1875 U.K.. His Lordship said [2] : "I do not know what the intention of the framers of the section may have been, nor are we bound to consider that. We have to construe the section according to the ordinary rules of construction which have to be applied to a criminal act." I have already indicated my own view of the ordinary meaning of the expression "by or on behalf of" when used in relation to estates or interests in land.

1. (1897) 66 L.J.Q.B. 569. 2. (1897) 66 L.J.Q.B., at p. 572.

Further, I am unable to take the view that the Fund Commission holds land it acquires "on behalf of" Aboriginals in any sense which I can give that expression in the Act.

It is to be observed that s. 20 does not require the Fund Commission to create any estate or interest in any specific individual in land vested in the Fund Commission. So far as individuals are concerned, they can be given rights of occupation, i.e. of use, or perhaps allowed to occupy or use without the creation of any specific right to do so. The Fund Commission apparently has no power to sell land so acquired and may not devote the land to any other purpose than those of s. 20. But no individual Aboriginal or Aboriginals or group of Aboriginals would have any claim to compel the Fund Commission to devote the land to or for such claimants or for that matter for any individuals or group of individuals. All that can properly be said, in my opinion, is that the Fund Commission holds the land for the purposes of the Fund Act.

I would therefore accept the submission that, on any view of the meaning of the words "on behalf of" in s. 50 (1), the Fund Commission does not hold land acquired by it on behalf of any specific Aboriginals or group of Aboriginals. Nor, in my opinion, can it properly be said that it holds the land on behalf of Aboriginals generally. To say, as I would say, that it holds the land for the purposes of s. 20 of the Fund Act does not mean that in any appropriate sense of the words "on behalf of" it holds the land for Aboriginals.

But principally s. 50 (1), in my opinion, confines the Commissioner's jurisdiction to land held by or on behalf of identified or identifiable individuals, whether separately or as part of an identified or identifiable group, all of whom are Aboriginals as defined.

Lastly, there is the difficulty that Aboriginals under the Fund Act are not limited to members of the Aboriginal race. They include the Torres Strait Islanders who, I understand, are not members of this race. It is, in my opinion, little to the point to say that it is unlikely that Torres Strait Islanders would be seeking occupation of traditional land in the Northern Territory. I do not know whether that is or is not a possibility. The question must be decided, it seems to me, by the terms of the statute. Section 50 (1) uses "Aboriginals" in the defined sense as members of the Aboriginal race. I find it difficult, if Torres Strait Islanders are included in the persons to whom occupation or use of land acquired by the Fund Commission may be given, that it can properly be said, however loosely the words "on behalf of" are interpreted, that the land held by the Fund Commission is held on behalf of members of the Aboriginal race.

In my opinion, the order nisi should be made absolute. The Commissioner was not authorized to entertain an application in respect of the subject land, that land not being either unalienated Crown land or alienated land in which all the estates and interests therein are held either by the Crown or by individual Aboriginals or identified or identifiable groups of Aboriginals or on behalf of individual Aboriginals or identified or identifiable groups of Aboriginals.

In 1978 Parliament conferred self government on the Northern Territory of Australia, establishing it as a body politic under the Crown - Northern Territory (Self-Government) Act 1978. By s. 69 (2) of that Act substantially all interests of the Commonwealth in land in the Territory are vested in this new body politic. Its Attorney-General now seeks prohibition against the Aboriginal Land Commissioner and against the Central Land Council in respect of a traditional land claim being made by a number of Aboriginals to land in the Northern Territory.

The ground for prohibition is that the land the subject of the application which the Commissioner is entertaining, and which is made pursuant to s. 50 (1) of the Aboriginal Land Rights (Northern Territory) Act 1976, is not land to which that section can apply.

If the Commissioner proceeds with the hearing of this application and concludes that there are Aboriginals who are the traditional Aboriginal owners of the land in question he may make a recommendation for the granting of it to a Land Trust for the benefit of those Aboriginals. The Minister may then establish such a Land Trust to hold that land for their benefit and recommend that a grant of an estate in fee simple in the land be made to the Land Trust. The interest of the Northern Territory arises because the land is Crown land and is vested in it.

Whether or not the land here in question is indeed land to which s. 50 (1) applies, so that application may be made to the Commissioner in respect of it, depends upon the meaning to be given to that sub-section's description of land to which it applies. The relevant part of s. 50 (1) is 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 - .

There then follow details of what the Commissioner is to do in relation to such applications.

The description, in par. (a) of s. 50 (1), of land which may be the subject of an application to the Commissioner is replete with defined terms. Their meanings, appearing in s. 3 (1) of the Act, in turn employ words having defined meaning. When account is taken of the interaction of these various definitions, the description of that class of land to which the section applies appears to be as follows:

Land in the Northern Territory of Australia (i) which is not currently held for an estate in fee simple; (ii) which is not set apart for or dedicated to a public purpose under any statute; (iii) which is not the subject of a deed of grant held in escrow by a Land Council; (iv) which is not in a "Town" as defined in section 3; and in which any estates or interests not held by the Crown are all held by, or on behalf of, persons who are members of the Aboriginal race of Australia.

It was common ground on the hearing of this appeal that the present land did not fall within any one of the four negative exclusions set out above. What is in debate is whether it falls within the concluding affirmative requirement. The land, known as Utopia Station, of almost 2,000 square kilometres and situated over 200 kilometres north-east of Alice Springs, is Crown land which is the subject of a pastoral lease issued under the Crown Lands Act of the Northern Territory. This lease is presently held by the Aboriginal Land Fund Commission, a body corporate established by s. 4 of the Aboriginal Land Fund Act 1974. Running through, but apparently excluded from, the area of the pastoral lease is a stock route. The present application before the Commissioner does not appear to extend to that stock route and we have accordingly had no occasion to consider how that stock route or, for that matter, any public highways however originating, might be affected by the Aboriginal Land Rights (Northern Territory) Act 1976.

The critical question is whether, in terms of s. 50 (1) (a), the Commission holds its leasehold interest in Utopia Station "on behalf of" persons who are members of the Aboriginal race of Australia. Unless it does, the Commissioner will have no power to entertain the application in respect of Utopia Station because the leasehold interest in it will be held neither by nor on behalf of a member of the Aboriginal race.

The phrase "on behalf of" is, as Latham C.J. observed in R. v. Portus; Ex parte Federated Clerks Union of Australia [3] , "not an expression which has a strict legal meaning", it bears no single and constant significance. Instead it may be used in conjunction with a wide range of relationships, all however in some way concerned with the standing of one person as auxiliary to or representative of another person or thing.

In what is perhaps its least specific use, "on behalf of" may be applied to someone who does no more than express support for persons or for a cause, as with one who speaks on behalf of the poor or on behalf of tolerance. It may be used when speaking of an agency relationship, but also of some quite ephemeral relationships, such as that which exists between a party to litigation and the witness he calls, a witness "on behalf of" the defence. Again, it may, as the Northern Territory here contends, be used where the relationship is that of trustee and cestui que trust. It was of such a use that Lord Cairns L.C. spoke when he said, in Gillespie v. City of Glasgow Bank [4] , that the phrase could describe a relationship of trustee and cestui que trust "if the circumstances of the case are consistent with that interpretation". Context will always determine to which of the many possible relationships the phrase "on behalf of" is in a particular case being applied; "the context and subject matter" (per Dixon J. in the Federated Clerks' Case [5] ) will be determinative.

1. (1879) 4 App. Cas. 632, at p. 640. 2. (1949) 79 C.L.R., at p. 438.

"On behalf of" occurs twice within the space of a few lines in s. 50 (1) (a). Where first occurring it refers to the act of making application; application may be made either personally by Aboriginals or by another on behalf of Aboriginals. In that context the use of the phrase contemplates some representative capacity or agency relationship. Where secondly occurring no act is referred to but rather a static situation, in which estates or interests in alienated Crown land are held either personally by Aboriginals or by another "on behalf of" Aboriginals. It would clearly enough include the case of a trustee holding an estate or interest in land in trust for Aboriginals; the question is whether it does not also extend to the case of estates or interests in land held by a statutory corporation which, while not a trustee for Aboriginals, is nevertheless under a statutory duty to make the land available exclusively for occupation by them.

The holding of land for the benefit of another typically involves, as the private law mechanism by which performance of the holder's duties may be enforced, the concept of a trust. But where statutory corporations especially created for the purpose are in question, their duty to employ the property in the manner which the statute contemplates, as, in this instance, for the benefit of particular groups of Aboriginals, may call for no recourse to the law of trusts and their holding of land is not inappropriately described as being "on behalf of" the relevant group. In their case, oversight by the executive and the availability of processes for the enforcement of statutory duties suffices.

The present holder of the pastoral lease from the Crown, the Aboriginal Land Fund Commission, has functions imposed upon it by the Aboriginal Land Fund Act 1974 which it must perform "in accordance with any general directions given by the Minister": s. 5 (2). By s. 21 (1) it is empowered to acquire by agreement any interest in land, but this it may only do for "the purposes of section 20". Section 20 provides that the Commission may, without receiving any payment in return, grant to an Aboriginal corporation an interest in land for the purpose of enabling the members of such corporation (who must necessarily be Aboriginals: s. 3, definition of Aboriginal corporation) to occupy that land: s. 20 (1) (a). Again the Commission may make like grants to Aboriginal land trusts (which in turn have the function of providing Aboriginals with interests in land or of assisting them to acquire such interests) for the purpose of enabling Aboriginals to occupy that land: s. 20 (1) (b). Thus when the Commission acquires an interest in land it must be for the purpose of enabling Aboriginals to occupy it.

It follows that when, in March 1976, the Aboriginal Land Fund Commission acquired the Utopia Station leasehold it did so for the purpose of granting an interest in it to an Aboriginal corporation or to an Aboriginal land trust so that Aboriginals might occupy the station. In those circumstances it involves no straining of language to describe the Commission's holding of its leasehold interest in Utopia Station as being "on behalf of" Aboriginals.

This is not, of course, to deny that the phrase "on behalf of" in s. 50 (1) (a) is apt to describe the position of a trustee of land; what it does deny is that that is all that the phrase can describe. The phrase is, we think, equally apt to describe the position of the Commission in relation to Utopia Station, and this despite the fact that it does not hold its leasehold interest in the Station on any trust for Aboriginals.

We regard this wider meaning which we would give to "on behalf of" where it secondly occurs in s. 50 (1) (a) as preferable to any narrower meaning which would confine it to the case of land held on trust for Aboriginals, and this for reasons concerned with the respective consequences of these two possible meanings, viewed in the light of probable legislative intent.

The Court was told in the course of argument that, were the narrow meaning to prevail, the only cases to which "on behalf of" could apply would be where interests in alienated Crown land in the Northern Territory came, as a result of a will, settlement or declaration of trust, to be held in trust for an Aboriginal. This is, it seems, because none of the various statutory corporations set up under legislation in the Northern Territory to advance the interests of Aboriginals will ever, in terms of their enabling statutes, find themselves to be holding land in trust for Aboriginals in circumstances to which s. 50 (1) (a) can apply.

To regard the only function of "on behalf of" as that of picking up of those odd cases, if indeed there be any at all, in which, by the operation of private law, trusts of alienated Crown land in the Northern Territory happen to have been created in favour of Aboriginals is to give it a very limited role indeed. With it may be contrasted its operation if the phrase is intended to extend to cover also those cases in which statutory corporations like the Aboriginal Land Fund Commission have, in exercise of their special functions under their constituting Acts, acquired interests in alienated Crown land. Parliament may, of course, have intended "on behalf of" to have only this minimal function; but, all else being equal, we would rather tend to regard a more ample operation as more likely to reflect the legislative intent. However all else is not equal; on the contrary, there are strong indications favouring the wider view of the intended operation of "on behalf of" in s. 50 (1) (a). What they are requires some further considerations of the Acts of 1974 and of 1976.

The long title to the Aboriginal Land Rights (Northern Territory) Act 1976 describes it as "An Act providing for the granting of Traditional Aboriginal Land in the Northern Territory for the benefit of Aboriginals, and for other purposes". Perhaps its most important provisions (apart from s. 10, which deals with land in certain scheduled districts of the Territory) are ss. 11 and 12. They enable Crown land to be granted to Land Trusts, to be held for the benefit of those Aboriginals entitled by Aboriginal tradition to the use or occupation of that land. Only Crown land is to be the subject of this programme of returning land to its traditional Aboriginal owners, and then only certain Crown land; Crown land in which any estates or interests are held otherwise than "by, or on behalf of, Aboriginals" cannot be the subject of a recommendation by the Commissioner and (land in scheduled districts always apart) cannot be granted to Land Trusts. Thus, neither freehold land nor Crown land the subject of lesser interests held by white men can be made the subject of grants to Land Trusts for traditional Aboriginal owners. Only unalienated Crown land and Crown land in which estates or interests are held "by, or on behalf of, Aboriginals" are, by the Act, to be available for return to their traditional Aboriginal owners.

This being the legislative scheme enacted in 1976, the field in which it was to operate was one to which, for some two years, the Aboriginal Land Fund Act 1974 had already applied. Under that earlier Act the Aboriginal Land Fund Commission had been constituted with power to acquire interests in land for the express purpose of in turn granting to Aboriginal corporations and Aboriginal land trusts interests in land so that Aboriginals might occupy that land. Unlike the Act of 1976, the Act of 1974 was not concerned to identify traditional Aboriginal owners and to restore to them their traditional lands: its long title described its aim as being "to assist Aboriginal Communities to acquire Land outside Aboriginal Reserves". As a matter of legislative history it may be noted that a measure akin to the 1976 Act, in the sense that its concern was with the traditional land rights of Aboriginals, was introduced into Parliament shortly after the introduction of what became the Act of 1974; but it never became law, it was overtaken by the dissolution of Parliament in November 1975.

It was pursuant to the Act of 1974 that the Commission acquired its leasehold interest in Utopia Station. The judgment of the Commissioner in the present case makes it clear that this was but one of a number of instances in which, by 1976, the Commission had acquired interests, pursuant to s. 21 of the Act of 1974, in Crown land on which Aboriginals were currently living.

Here, then, was the situation as it existed when the 1976 Act came into operation. Crown land away from towns and not reserved for public purposes was to be available for claim by traditional Aboriginal owners in proceedings before the Commissioner, so long as no white man held an interest in it. The existing occupation of such land by Aboriginals under leasehold title was to be no bar to such claims; indeed such existing Aboriginal leaseholders might themselves be claimants, seeking to enlarge their interest into a fee simple, held for their benefit by a Land Trust. Some such Crown land presently occupied by Aboriginals would in the past two years have come to be held under leasehold title by the Commission. The Commission's leasehold title would have been acquired because the land was thought to be suitable or desirable for occupation by Aboriginals. Since the Aboriginal Land Rights (Northern Territory) Act 1976 expressly recognizes that the Commissioner may entertain traditional claims to Crown land despite leasehold interests being already held in it "by Aboriginals" (see s. 59 (1) (a) and also the terms of s. 11 (1) (d) and s. 50 (3) (b)), it can scarcely have been intended by Parliament that, where such leasehold interests are held not by Aboriginals themselves but by the Commission for the statutory purpose of permitting Aboriginals to occupy it, the land should for that reason alone be excluded from the range of such inquiry. So to exclude it would prevent not only Aboriginals generally but also the very Aboriginals occupying it from asserting traditional land rights to it and thereby acquiring freehold title to it. The very fact that such land had been selected by the Commission under the 1974 Act as appropriate land in which to acquire an interest, so that Aboriginals might occupy it, rather suggests that, as in the present case, it is precisely the sort of land to which traditional Aboriginal owners might well desire to lay claim, the very course which the 1976 Act is intended to promote. Yet to confine the phrase "on behalf of" to the narrow meaning contended for would be altogether to exclude it from the scope of the Commissioner's inquiry.

These considerations lead us to conclude that it is the wider of the two meanings of "on behalf of" which should be applied to that phrase where secondly occurring in s. 50 (1) (a). The phrase will thus include the present case of Utopia Station.

There remains a further contention urged on behalf of the Northern Territory. It is that, even if "on behalf of" be given its wider meaning, it will nevertheless not apply to any leasehold interest of the Commission, whether in Utopia Station or elsewhere, because the Commission does not hold those interests on behalf of "Aboriginals" as defined in the 1976 Act but on behalf of a more widely defined group of persons.

In the 1976 Act "Aboriginals" is defined to mean: "a person who is a member of the Aboriginal race of Australia" whereas in the 1974 Act it is defined to mean "an indigenous inhabitant of Australia, and includes an indigenous inhabitant of the Torres Strait Islands". Hence, so it is said, the Commission, governed by the 1974 Act, holds its interests in land for a wider group of persons, including Islanders, than the persons who are Aboriginals for the purposes of the 1976 Act.

For present purposes let it be assumed, whether correctly or not, that Islanders of the Torres Strait are not members of "the Aboriginal race of Australia", although they are, no doubt, indigenous inhabitants of a part of that geographic entity described as Australia. On that assumption, the present submission may be tested by applying it to the land here in question, Utopia Station, 200 kilometres north-east of Alice Springs. Is it right to say of the Commission's leasehold interest in Utopia Station that it is held for the benefit of, inter alia, indigenous inhabitants of the Torres Strait Islands? Had the Commission declared a trust of Utopia Station in favour of Aboriginals, as defined in its constituting Act, the answer would clearly enough be "yes". But the Commission has done no such thing. In taking up the leasehold interest in Utopia Station and interests in other land in Australia it has not acted, in relation to each parcel of land, in the interests of all Aboriginals and Islanders. On the contrary, each interest in land which it acquires must be for a quite specific purpose, confined to benefiting quite small groups within the general Aboriginal and Islander community: see s. 20 (1) (a) and (b). In taking up Utopia Station the Commission can only have acted in the interests of those Aboriginals wishing to remain on or to settle on the Station, they and no others. Nothing suggests that included in them are any Islanders. Such meagre material as there is before the Court would suggest the contrary. The notification of the claim to Utopia Station made under the 1976 Act refers to part of the land as already being "a community area for the resident aboriginal group" and three "incorporated aboriginal bodies", a cattle company, a medical service and a social club are said to be associated with the Station. All this suggests local Aboriginal involvement in this land situated close to the very centre of our continental land mass and wholly remote from the islands of Torres Strait. Certain irregularities, internal to the Commission and affecting the Station, emerged when the claim came before the Commissioner; both they and the steps taken to overcome them are commented upon by his Honour but they do not, we think, at all affect the present position.

It follows that the fact that significantly different definitions of Aboriginal occur in the two sets of legislation does not aid the Northern Territory's case. In our view its contentions must fail, substantially for the reasons stated by the Commissioner in his judgment. His Honour correctly asserted jurisdiction under s. 50 (1) (a) in respect of Utopia Station.

On behalf of the Central Land Council it was urged that even if, contrary to its primary submission, it were correct to say that the Commission did not hold its interest in Utopia Station "on behalf of" Aboriginals, nevertheless the land still fell within s. 50 (1) (a) because the interest held by the Commission was in truth held by the Crown, the Commission being for this purpose indistinguishable from the Crown. Since we have found it unnecessary in the outcome to consider this submission we do no more than make it clear that we in no way rest our conclusion upon this ground.

I have had the advantage of reading the reasons for judgment published jointly by Stephen, Mason, Murphy and Aickin JJ, and also those published in dissent by Barwick C.J.

Unfortunately, I find myself at some slight variance with all my brethren. On the one hand, I respectfully agree with much that has been written by the Chief Justice, and in particular with his conclusion that the land in respect of which the Aboriginal Land Commissioner performs his functions pursuant to s. 50 of the Aboriginal Lands Rights (Northern Territory) Act 1976 must be 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, individual Aboriginals or identified or identifiable groups of Aboriginals.

On the other hand, I respectfully agree with the majority that the words "on behalf of" are not to be read in the narrow sense that would limit their operation to a formal trust.

In my view, s. 50 is to be construed, not as if it were contained in a textbook on traditional land tenures in the feudal system, but in the context of the novel concepts and arrangements that have been introduced in Australia by statute in recent years to meet demands for Aboriginal land rights and to provide appropriate models for the advancement of the Aboriginal race. I refer in particular to the Aboriginal Land Fund Act 1974 ("the 1974 Act"), the Aboriginal Councils and Associations Act 1976 (which, inter alia, develops the special features of an Aboriginal corporation), and the Aboriginal Land Rights (Northern Territory) Act 1976 ("the 1976 Act"). In such a context, it is natural and proper to speak of land held by the Aboriginal Land Fund Commission for the sole purpose of enabling a particular member or group of members of the Aboriginal race of Australia to occupy it as land held "on behalf of" Aboriginals. But, in my view, the essential consideration in such a case is that the land must have been committed by decision of the Commission pursuant to s. 20 of the 1974 Act to occupation by a person or persons who satisfy the description of "Aboriginals" in the 1976 Act, that is, members of the Aboriginal race of Australia. I say that both for the reasons which are developed fully in the judgment of the Chief Justice, and for the further considerations which I now mention.

In my respectful opinion, the scheme of the 1974 Act does not allow it to be said with any show of accuracy that all land held by the Commission is held on behalf of anyone. It is not until it makes a decision in respect of a particular parcel in favour of identifiable persons that its holding may thenceforth be so characterized as to attract in the event of a traditional land claim the jurisdiction of the Aboriginal Land Commissioner pursuant to s. 50 of the 1976 Act. I appreciate that the majority of the members of the Court appear to take the view, as did the learned Commissioner (Toohey J.) that it is sufficient for the Commission merely to have acquired the land for it to be said that the land is then held on behalf of Aboriginals within the meaning of s. 50. But the land may have been acquired by the Commission in any of a number of ways. It may have been devised by will, it may have been received as a gift, or it may have been acquired by agreement. It is only in the lastmentioned case that the acquisition is necessarily directed by the 1974 Act to the purposes of s. 20, and even then there is no guarantee that those purposes will be capable of fulfilment in any particular case. Section 5 of the 1974 Act empowers the Commission to sell land, and s. 17 provides for the disposition of the proceeds of sale. It seems to me therefore to be impossible to characterize the land as held by the Commission on behalf of "Aboriginals" until it is committed to occupation by persons who satisfy that description.

Again, unless s. 50 is construed in this way, note the difficulty that arises because of the inclusion of Torres Strait Islanders in the definition of Aboriginal in the 1974 Act. The Act does not draw any distinction between the two races. Until, therefore, the Commission makes a decision in respect of a particular parcel of land in favour of a particular person or persons, on what basis can it be said that the Commission holds the land on behalf of the members of one race rather than another? For the Court to rely on the geographical location of the land in question as the basis for an assumption that the members of one race rather than another may be taken to be the likely beneficiaries of the Commission's holding appears to me, with all respect, to be an unwarranted dilution of the authority expressly conferred on the Commission by the 1974 Act.

The conclusion to which I would come in the light of these considerations is that the Aboriginal Land Commissioner did not derive jurisdiction to entertain the traditional land claim in the present case merely from the fact that the pastoral lease was held by the Aboriginal Land Fund Commission. That fact alone did not enable it to be said that the land was held on behalf of members of the Aboriginal race of Australia. However, the matter does not end there. Toohey J. in his reasons for judgment refers to certain decisions of the Commission, including one on 12th September 1979 whereby it purported to grant an interest pursuant to s. 20 of the Act to the Utopia Aboriginal Land Corporation, a body incorporated as an Aboriginal corporation under the provisions of the Aboriginal Councils and Associations Act 1976. But on the view taken by the learned Commissioner of the effect of the land holding of the Commission itself, a view with which I respectfully disagree, it was not necessary for him to consider the legal implications of these decisions of the Commission. Upon proper examination, it may now readily appear that the Commission, by reason of the latest decision to which I have referred, does in truth hold its pastoral lease of Utopia Station on behalf of Aboriginals within the meaning of s. 50 of the 1976 Act, with the result that jurisdiction exists for the Commissioner to proceed to inquire into the claim. The case for prohibition therefore fails.