[1992] FCA 69; (1992) 34 FCR 470

(1992) 26 ALD 371 (extracts)

Aboriginals - Aboriginal Land Rights (Northern Territory) Act - definition of traditional Aboriginal owners - relevance of Aboriginal concepts - whether local descent group confined to patrilineal clan - whether one person can constitute a group - whether Commissioner has duty to investigate existence of groups other than claimants - whether strength of claimants' traditional attachment to land relevant - whether claimants' spiritual affiliation with other sites relevant.

Administrative Law - Administrative Decisions (Judicial Review) Act - whether error of law - whether error influenced outcome.

Administrative Decisions (Judicial Review) Act 1977: s.5(1)

Aboriginal Land Rights (Northern Territory) Act 1976: ss.3(1), 50(3), 50(1)(a), 50(3) and 50(4).

R v Kearney; Ex parte Jurlama [1984] HCA 14; (1984) 158 CLR 426

R v Toohey; Ex parte Meneling Station Pty Limited [1982] HCA 69; (1982) 158 CLR 327

R v Kearney; Ex parte Northern Land Council [1984] HCA 15; (1984) 158 CLR 365

R v Toohey; Ex parte The Attorney-General for the Northern Territory of Australia [1980] HCA 2; (1980) 145 CLR 374

Attorney-General for the Northern Territory v Hand (1989) 25 FCR 345

Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141

for First Applicant: Mr J.L. Sher QC and Mr D.A. Parsons

instructed by Mr Brett Midena of

the Northern Land Council

Counsel and Solicitors

Waters, James and McCormack

Counsel and Solicitors

Mr David Avery of the Central Land Council

Counsel and Solicitors

for Second Respondent: Mr T. Pauling QC and Mr V. Hughston

instructed by the Solicitor for

the Northern Territory

The decision of the Aboriginal Land Commissioner be set aside.

The matter be referred to an Aboriginal Land Commissioner for determination in accordance with law.

The second respondent pay the costs of the first and second applicants.

There be no order as to costs as to the third applicant and the first respondent.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The applicants apply to the Court for judicial review pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") of a decision made by the first respondent, ("the Commissioner") the then Aboriginal Land Commissioner appointed pursuant to s.52(1) of the Aboriginal Land Rights (Northern Territory) Act 1976 ("the Act").

2. The controversy between the parties arises out of a claim made on behalf of various Aboriginal people by the first applicant, the Northern Land Council ("the Council") a body corporate established pursuant to s.21 of the Act, to land on the Cox Peninsula, in close proximity to Darwin, and islands adjacent thereto, commonly referred to as the Kenbi Land Claim.

3. An application seeking a determination of the claim was originally lodged by the Council on 29 June 1978 on behalf of four Aboriginals identified as Bobby Secretary, Tommy Lyons, Olga Singh and Prince of Wales. These four claimants were members of the Danggalaba (or crocodile) clan and were also Larrakia people, that is to say members of a linguistic group. A second application was received by the then Commissioner, Toohey J. on 20 March 1979. It was lodged on behalf of 57 Aboriginals, including three of those named in the first claim, which it replaced. All these applicants were Larrakia people. The decision under review was given in respect of this application.

4. For completeness, it should be mentioned that a further application was lodged by the Council on 9 March 1990 on behalf of a considerably wider group of persons, being:

"...the members of the Larrakia language group, the members

of the Kiuk-Wadjigan language group, the members of the

Aminanggel-Mandayanggel language group, and the members of

the Marriamu-Marridjabin language groups being the groups

of claimants put forward as traditional owners in the Kenbi

Land Claim."

5. The last two claims were heard together by the Commissioner, subject to a question as to whether he had jurisdiction to determine the claim so far as it concerned a part of the land dealt with in the third claim, and additional to the land claimed in the second application.

6. The inquiry commenced on 13 November 1989. On 1 December 1989 the Council announced its decision to include as claimants, in addition to those already named in the application, the Wagaitj people, who were residents of Belyuen, a township in the area and who were not Larrakia people as the original claimants were. That decision did not have the universal support of the Larrakia claimants. In particular, it was opposed by Mr Quall, the second applicant, who so far as is relevant to the present application broadly supported the submissions made by the Council. Mr Quall was made a party in the course of interlocutory proceedings on 24 May 1991.

7. The third applicant, the Central Land Council, was added as a party by virtue of an order made during the course of interlocutory proceedings on 13 September 1991. The Central Land Council has no legal interest at all in the outcome of the proceedings, in so far as the land the subject of the claim lies outside its jurisdiction. It was, however, interested in putting forward arguments to the court in support of the first applicant, as the matters raised in the review were of fundamental interest to it. We took the view that it should be treated rather as an intervener than a party and accepted submissions from it.

8. Finally, the second respondent, the Attorney-General for the Northern Territory, is a party to the proceedings as representing the Territory, since the land in respect of which the claim is made is "unalienated crown land", as that expression is used in the Act and is vested in the Crown, in right of the Territory. The Attorney-General was made a party by an interlocutory order made on 19 April 1991.

9. The Commissioner's report was delivered in February 1991. It was accompanied by a finding (para 1.3 of the Findings and Recommendations contained in the report) that:

"Upon inquiry being made into the application I

find that there are no traditional Aboriginal

owners within the meaning of the Aboriginal Land

Rights (Northern Territory) Act 1976 of the

claim area or any part of it."

10. Having regard to this finding the Commissioner saw no occasion to make any recommendation for the granting of the claim area, or any part of it to a land trust in accordance with s.50(1)(a)(ii) of the Act, but recommended, nevertheless to the Minister for Aboriginal Affairs that he use his good offices to negotiate with the government of the Northern Territory to obtain for the use and benefit of the descendants of the Larrakia people sufficient areas of suitable land on the Cox Peninsula:

"as may be necessary to satisfy the reasonable

aspirations of those people to maintain and

enhance the cultural traditions of their

ancestors."

11. It is the finding of the Commissioner in para 1.3 which the Applicants seek to set aside.

12. The application before the court was brought on a multitude of grounds identified by reference to s.5(1) of the ADJR Act. These included grounds alleging a denial of natural justice and grounds alleging no or insufficient evidence to support the decision. Ground two of the application alleged that the Commissioner in arriving at his decision erred in law in a number of respects. The parties agreed that it was convenient that the court proceed to hear argument initially limited to ground two, which involved only questions of law, as, if the applicants were to succeed on this basis it would render unnecessary argument in respect of the other grounds. These other grounds, if argued, would have involved the court in a detailed consideration of the considerable volume of evidence which had been heard by the Commissioner.

13. Ground two raised a large number of questions of law, many of which overlapped. These questions can be reduced to the following:

1. The proper construction of the words: "local descent group"

in the definition of "traditional Aboriginal owners"

contained in s.3(1) of the Act.

2. Whether a single person could form a "local descent group"

for the purposes of the Act.

3. Whether in determining whether there existed a "local descent

group" the Commissioner was entitled to have regard to the

strength or otherwise of the traditional attachment by the

claimants to the land claimed pursuant to s.50(3) of the Act.

4. Whether the Commissioner was entitled to examine the

spiritual affiliation of individuals to the land claimed in

determining whether the relevant group had a common

spiritual affiliation to the land.

5. Whether it was relevant in determining who were the "traditional

Aboriginal owners" of the land claimed that certain claimants

did not seriously advance themselves as traditional owners.

6. Whether the fact that a particular group had common

spiritual affiliations with sites other than on the land

claimed was relevant in determining whether such group

constituted a "local descent group".

7. Whether the Commissioner was under a duty to investigate

alternative groups to see whether there existed a "local descent

group" not being a group which had put itself forward as claimant.

14. In his report, the Commissioner examined the definition of the expression "traditional Aboriginal owners" in s.3(1) of the Act and concluded that the words "local descent group" which appear therein were "obscure". Thus, his Honour had resort to extrinsic material, and particularly the two reports of the Aboriginal Land Rights Commissioner, which preceded the legislation and the second reading speech made by the then Minister for Aboriginal Affairs (Mr Viner) when introducing the legislation. These materials, his Honour concluded, led to the result that the expression should be construed to mean a patrilineal clan, that is to say a subdivision of a linguistic or dialect group where membership is determined by common patrilineal descent.

15. Adopting this approach, his Honour concluded on the facts before him that while there had been at the time the application was first filed a patrilineal clan comprising a number of persons who would then have qualified as "traditional Aboriginal owners" (the Danggalaba (or Crocodile) clan), by the time the application came to be determined, however, there was only one member of that clan left, of whom it could be said that he had spiritual affiliation with the land (Prince of Wales). In his Honour's view one person could not constitute a "local descent group", nor could it be said of one person that he had a "common spiritual attachment to the land". Accordingly the claim failed.

16. In arriving at this conclusion his Honour discussed the procedure adopted by him in the following passage (para 8.49):

"In the practical application of the statutory definition of

`traditional Aboriginal owners' it has been my policy on

most occasions to first identify a group of people who have

relevant links both to the locality of the land claimed and

by descent who can fairly be thought to comprise a local

descent group, and then to examine the evidence relating to

the spiritual affiliations of those individuals to determine

whether they are such as to conform with the wording of

paragraphs (a) and (b) of the definition. In this latter

exercise I have construed the opening words of section

50(3), namely

(in) making a report in connexion with a

traditional land claim a Commissioner

shall have regard to the strength or

otherwise of the traditional attachment by

the claimants to the land claimed...

as requiring me to consider the traditional

attachment of individual claimants who form part

of the local descent group, and if no such attachment is

demonstrated, or if it is shown to be only nominal, I have

not treated the individual as having a `common spiritual

affiliation' to a site on the land and thus have excluded

any such individual from the group identified as the

traditional Aboriginal owners. On this basis I have

consistently excluded young children about whom the only

evidence is that they are a child of their father or their

mother and other claimants who are shown in other ways to

have no actual traditional attachment to the land. The view

I have taken, and with which I persist, is that section

50(3) put (sic) a gloss on the definition of traditional

Aboriginal ownership which limits its application to those

local descent group members who have some demonstrable

traditional attachment to the land..."

17. The Commissioner rejected the claim that the three Wagaitj groups, the Wadjigiyn-Kiyuk, the Ami-Manda and the Marriamu-Marridjabin could fall to be considered as traditional Aboriginal owners, stating, inter alia, that they had not seriously advanced themselves as traditional owners in any sense. In any event, his Honour was of the view that they had common spiritual affiliations with sites elsewhere than on or near the claim area, a view which his Honour appears to imply would disqualify them. His Honour did not explicitly pursue the question whether he could find any other local descent groups who were not necessarily claimants.

18. The Act, as its long title proclaims, is an Act:

"...providing for the granting of Traditional

Aboriginal Land in the Northern Territory for

the benefit of Aboriginals, and for other

purposes."

19. The starting point of a land right claim is the making of an application, by or on behalf of Aboriginals in respect of specified land, being, in general terms, unalienated Crown land, to an Aboriginal Land Commissioner. The functions of a Commissioner as set out in s.50(1)(a), so far as is relevant are:

"(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;..."

20. Sub-sections (3) and (4) of the section then provide as follows:

"(3) In making a report in connexion with a

traditional land claim a Commissioner shall have

regard to the strength or otherwise of the

traditional attachment by the claimants to the

land claimed, and shall comment on each of the

following matters:

(a) the number of Aboriginals with traditional

attachments to the land claimed who would

be advantaged, and the nature and extent

of the advantage that would accrue to

those Aboriginals, if the claim were

acceded to either in whole or in part;

(b) the detriment to persons or communities

including other Aboriginal groups that

might result if the claim were acceded to

either in whole or in part;

(c) the effect which acceding to the claim

either in whole or in part would have on

the existing or proposed patterns of land

usage in the region; and

(d) where the claim relates to alienated Crown

land - the cost of acquiring the interests

of persons (other than the Crown) in the

land concerned.

(4) In carrying out his functions a Commissioner

shall have regard to the following principles:

(a) Aboriginals who by choice are living at a

place on the traditional country of the

tribe or linguistic group to which they

belong but do not have a right or

entitlement to live at that place ought,

where practicable, to be able to acquire

secure occupancy of that place;

(b) Aboriginals who are not living at a place

on the traditional country of the tribe or

linguistic group to which they belong but

desire to live at such a place ought,

where practicable, to be able to acquire

secure occupancy of such a place."

21. Where the Commissioner recommends that there be a grant of Crown land for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of a particular area, whether or not that entitlement is qualified as to place, time, circumstance, purpose or permission, the Minister is then empowered by s.11 of the Act to make a recommendation to the Governor-General that the relevant land be vested in an Aboriginal Land Trust for the benefit of the relevant Aboriginals. Such Land Trusts are formed pursuant to s.4(1) of the Act and are body corporates: s.4(3). Membership of a Land Trust is confined to Aboriginals living in the area of the particular Land Council in which the land of the Land Trust is situated: s.7(6), s.29. A Land Trust holds the title to land, which is vested in it in accordance with the Act (s.5(1)(a)), but is obliged to exercise that ownership for the benefit of Aboriginals entitled by Aboriginal tradition to the use and occupation of the relevant land: s.5(1)(b). That is to say, the land is held for the benefit not only of the traditional Aboriginal owners but also for other Aboriginals who are traditionally entitled to use or occupy the land.

22. Aboriginal land once so vested may not be resumed, compulsorily acquired or forfeited under any law of the Northern Territory: s.67. Roads may not be constructed over it without the consent of the relevant Land Council: s.68(1), which must consult the traditional Aboriginal owners (if any) of the land as well as any Aboriginal community or group affected (s.68(2)) and it is an offence for a person to enter or remain upon the land unless entitled. The rights of Aboriginals to use and occupy the land vested in the Land Trusts are set out in s.71 which in sub-sec.(1) provides as follows:

"Subject to this section, an Aboriginal or a

group of Aboriginals is entitled to enter upon

Aboriginal land and use or occupy that land to

the extent that that entry, occupation or use is

in accordance with Aboriginal tradition

governing the rights of that Aboriginal or group

of Aboriginals with respect to that land,

whether or not those rights are qualified as to

place, time, circumstances, purpose, permission

or any other factor."

23. The Land Trusts are administered and supervised by Aboriginal Land Councils: s.23(1)(h), which are obliged to pay or discharge all administrative expenses charges or obligations of the Land Trusts: s.26. There are presently two such Councils, being the First and Third Applicants. Among the functions of Land Councils are the following (s.23(1)):

"(a) to ascertain and express the wishes and the opinion of

Aboriginals living in the area of the Land Council as

to the management of Aboriginal land in that area...

(b) to protect the interests of traditional Aboriginal

owners of, and other Aboriginals interest in,

...

(c) to consult with traditional Aboriginal owners of, and

other Aboriginals interested in, Aboriginal land in

the area of the Land Council with respect to any

proposal relating to the use of that land;

...

(e) to negotiate with persons desiring to obtain an estate

or interest in land in the area of the Land Council-

(i) where the land is held by a Land Trust - on behalf

of traditional Aboriginal owners (if any) of that land

and of any other Aboriginals interested in the land...".

24. In carrying out its functions the Land Council is directed by s.23(3) to have regard to:

"...the interests of, and shall consult with, the

traditional Aboriginal owners (if any) of the land and any

other Aboriginals interested in the land and, in particular,

shall not take any action, including, but not limited to,

the giving of consent or the withholding of consent, in any

matter in connexion with land held by a Land Trust, unless

the Land Council is satisfied that-

(a) the traditional Aboriginal owners (if any) of that

land understand the nature and purpose of the proposed

action and, as a group, consent to it;...".

25. Each Land Council is required to compile and maintain a register setting out the names of those persons who, in the opinion of the Council, are the traditional Aboriginal owners of Aboriginal land in the area of the Land Council, together with a map or other reference to the sacred sites in that area, unless so to do would constitute a breach of Aboriginal usage: s.24.

26. Once land is vested in a Land Trust the grant of mining exploration licences and other mining interests require the consent, not only of the Minister but also of the relevant Aboriginal Land Council: ss.41 and 45. Before consenting the Council is obliged to consult the traditional Aboriginal owners (if any): s.42(2)(a) and s.46(4). Agreements prior to land becoming Aboriginal land vested in a Land Trust relating to exploration may also be entered into by Councils following a similar process of consultation under s.48A of the Act. Mining royalties are payable into a fund, established by s.62 of the Act and known as the Aboriginals Benefit Trust Account. Amounts in that account, after certain authorised deductions, are distributable to the Land Councils in proportions determined by the Minister having regard to the number of Aboriginals living in the area of each Council (s.64).

27. It will be seen, therefore, that critical to the whole scheme of the legislation is the concept of "traditional Aboriginal owners". No report recommending a grant to a Land Trust can be made unless there has been a finding of the existence of traditional Aboriginal owners of the land the subject of a claim. Further, the concept has a continuing significance in the role which the traditional Aboriginal owners play in the consultative process.

28. The expression "traditional Aboriginal owners" is defined in s.3(1), in a definition which is to apply, unless the contrary intention appears. The definition is as follows:

"`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;".

The first applicant submitted:

* The expression "local descent group" was in its context not

obscure, and was but a combination of ordinary English words

to be given their ordinary meaning. So construed it was

neither limited to "clans" to the exclusion of "linguistic

groups", nor was it confined to groups where the principle

of descent was patrilineal, but encompassed groups adopting

matrilineal or ambilineal descent principles.

* If there was only one surviving member of a descent group,

that member could constitute the local descent group for the

purposes of the definition.

* Strength of traditional attachment, to which s.50(3) directs

the Commissioner to have regard is not an ingredient in the

definition of traditional Aboriginal owners, but is a matter

to be considered by the Commissioner when he comes to

determine whether he will make a recommendation to the

Minister that a grant be made.

* Spiritual affiliation is to be considered on the basis of

the group as a group, and not on the basis of an individual

by individual approach.

* The fact that some claimants may not have advanced

themselves as traditional owners on the basis of subjective

Aboriginal concepts will not be conclusive of whether or not

such claimants are traditional Aboriginal owners within

s.3(1) of the Act.

* The fact that claimants have spiritual affiliations to sites

elsewhere than on or near the land will be neither decisive

nor relevant in determining whether they are "traditional

Aboriginal owners" within s.3(1) of the Act.

* Once a claim is made the Commissioner is under a statutory

obligation to ascertain whether there are any traditional

Aboriginal owners, whether or not they put themselves

forward as claimants.

The definition of "traditional Aboriginal owners"- local descent group"

30. As can be seen from the short summary of the relevant provisions of the Act, the definition of "traditional Aboriginal owners" is critical to the entire Act. The expression is one that is to be found, not only in the sections to which reference has been made above, but in numerous other sections. Although the Commissioner appeared to think otherwise, little assistance is to be found from s.50(4) set out above. It is clear that the class of "traditional Aboriginal owners" is narrower than the class of Aboriginals who live on the particular land, or indeed narrower than those who have a traditional right to use or occupy the land. It is clear also that s.50(4) refers to "tribe" and "linguistic group" thereby appearing to make a distinction between those two expressions on the one hand and "local descent group" on the other, but these matters offer little in the way of a guide to the proper construction of the expression "local descent group" in the context of the definition of "traditional Aboriginal owners".

31. For the applicants it was submitted that the Act should be broadly construed so as to give effect to the beneficial purposes of the Act. There are statements in the cases of the highest authority to this effect. Thus in R v Kearney; Ex parte Jurlama [1984] HCA 14; (1984) 158 CLR 426 at 433, Gibbs C.J., with whose judgment Brennan, Deane and Dawson JJ. agreed, said of s.50(1)(a):

"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."

32. Statements to similar effect are to be found in R v Toohey; Ex parte Meneling Station Proprietary Limited [1982] HCA 69; (1982) 158 CLR 327 at 349 per Wilson J.; R v Kearney; Ex parte Northern Land Council [1984] HCA 15; (1984) 158 CLR 365 at 376 per Murphy J.; R v Toohey; Ex parte The Attorney-General for the Northern Territory of Australia [1980] HCA 2; (1980) 145 CLR 374 at 392 per Wilson J. and in this court in Attorney-General for the Northern Territory v Hand (1989) 25 FCR 345 at 357 per Lockhart J. and at 395 per von Doussa J.

33. So too, it can readily be accepted that a construction of the legislation must be adopted which would promote the purpose or object underlying the Act, rather than a construction which would not: Acts Interpretation Act 1901, s.15A. That purpose will ultimately be found in the language of the Act itself, as well as in the legislative background which indicates the mischief which the legislation was desired to overcome.

34. The judgment of Brennan J. in R v Toohey; Ex parte Meneling Station Pty Limited (supra) at 356 ff eloquently summarises the traditional relationship of the Aboriginal people to their land and the place which the Act has in restoring to them rights over that land akin to the usufructuary rights afforded by Aboriginal tradition. So it may be said that the purpose of the legislation is to permit the grant of land following upon a recommendation to that effect by a Land Commissioner in order that the use and occupation of traditional Aboriginal land (being unalienated Crown land) may be secured to those who are the traditional Aboriginal owners and who have a spiritual affinity to it as well as to other Aboriginal people having rights to enter or use it, but not the primary responsibility for it. The policy of the Act also recognises, as Wilson J. pointed out in R v Kearney; Ex Parte Northern Land Council (supra at 383) that the objectives of the Act must be pursued:

"...having regard to present realities and the

demands of peace, order and good government for

all Australians in the twenty-first century and

the years leading up to it. The course of

history in Australia over the past 200 years

cannot be ignored. That history nourishes the

moral imperative to acknowledge past injustices

in a tangible way at the same time as it calls

for a realistic appreciation of the challenge to

create in Australia a sense of true community

based on mutual respect for the dignity and

well-being of all its citizens."

35. To the same effect is the judgment of Lockhart J. in Attorney-General for the Northern Territory v Hand (supra at 357).

36. But, so to state the policy of the legislation tells us nothing about the meaning of the term "local descent group" which is to be found in the definition in s.3(1) of "traditional Aboriginal owners".

37. An initial reaction to the phrase is that it must be a technical expression having an accepted meaning to anthropologists. If this were so, evidence could be called both to assist the conclusion that the expression is used in a technical sense and to elucidate that technical meaning if differing from its ordinary meaning: General Accident Fire and Life Assurance Corporation Ltd v Commissioner of Pay-roll Tax (NSW) (1982) 2 NSWLR 52 at 55; Herbert Adams Pty Ltd v Federal Commissioner of Taxation [1932] HCA 27; (1932) 47 CLR 222 at 227; D and R Henderson (Manufacturing) Pty Ltd v Collector of Customs (1974) 48 ALJR 132 at 135. No such evidence was called before the Commissioner and indeed it seems to have been accepted by all parties that the expression "local descent group" has no special, generally accepted meaning in the discipline of anthropology at all.

38. According to evidence summarised by Toohey J., while sitting as Commissioner in the matter of the Anmatjirra and Alyawarra Land Claim to the Utopia Pastorial Lease, the expression "local descent group" seems first to have been used by an English anthropologist, Leach in a paper published in 1951. RM and CH Berndt in their book "The World of the First Australians" (Ure Smith) first published in 1964 describe such a group in the second edition published in 1977, in the following terms, remarking that the expression had a "specific connotation" in the literature on Australian Aborigines (at 40):

"...its members are united by common patrilineal descent,

share a given site or constellation of sites, sacred or

otherwise, and can trace their relationship genealogically.

Its territory is defined not so much by boundaries marking

it off from similar units, but by the actual sites which it

claims. Ideally, this is inalienable; but members of other

local descent groups are not debarred from entry, or from

hunting game or collecting food within its precincts,

although they may be denied access to a site where sacred

objects are stored."

39. Toohey J., commenting on Berndt's assertion that the phrase had a specific connotation, said at para 114 of that Report:

"The authors do not elaborate and I was not

given any other reference."

40. It was perhaps for this reason that no evidence was sought to be adduced before Olney J. in the present claim, nor was it suggested before us that the phrase should be taken to have a generally accepted anthropological connotation.

41. Although each of the words "local", "descent" and "group" are ordinary English words, their use in concert brings about an element of obscurity. It can not necessarily be assumed that resort to a dictionary definition of each word will be a sure guide to the meaning of the composite expression: cf General Accident Fire and Life (supra at 55). Thus, resort can be had, notwithstanding submissions to the contrary by the applicants, to the extrinsic material referred to in s.15AB(2) of the Acts Interpretation Act 1901, either to confirm that the meaning to be given is the ordinary meaning of the words, or to determine that meaning where that is otherwise ambiguous or obscure. It is such resort that led Olney J. to the conclusion that a local descent group meant a patrilineal clan. The history of events leading to the legislation may also not be irrelevant in reaching a conclusion as to the proper construction of the phrase.

42. The historical starting point of the formulation of the present legislation may be found in the judgment of Blackburn J. in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141. In that case it was held that the doctrine of communal native title contended for by the plaintiffs had never formed part of the law of Australia. In the course of the judgment his Honour considered evidence of the relationship of the plaintiffs in respect of the land in dispute and the social organisation in existence in the relevant area. Of the relationship of the Aboriginals to the land his Honour said (at 167):

"As I understand it, the fundamental truth about the

aboriginals' relationship to the land is that whatever else

it is, it is a religious relationship."

43. On the question of social organisation his Honour said (at 166-67):

"The people themselves believe that they are

descendants of certain great spirit ancestors

whose names and deeds are well known; they

arrived at identified places and they moved

about the land doing various things at various

places. Whether or not they were the creators

of the physical world, they were certainly the

ordainers of the system of life which the

aboriginals accept. Foremost in this system is

the principle of the clan. There are aspects of

the clan system which were a matter of some

dispute...The clan is essentially a patrilineal

descent group. Every human being has his clan

membership determined at the moment of his

birth, and it is that of his father. Each clan,

and therefore each member of it, belongs to

either the Dua or Yiritja moiety. Each clan is

strictly exogamous. This has two aspects: not

only can a person marry only one of another

clan, but also only one of a clan of the

opposite moiety...

The relationship of language to clan membership

is an only partly explained mystery...

...It is not in dispute that each clan regards

itself as a spiritual entity having a spiritual

relationship to particular places or areas, and

having a duty to care for and tend that land by

means of ritual observances...

The clan, then, had a religious basis, it had a

connexion with land, and the principle of its

existence was patrilineal descent. But its

relationships with other social phenomena were

far from simple...".

44. It must be borne in mind that his Honour's comments were restricted to the particular circumstances relevant to the land the subject of the proceedings before him.

45. In 1973 the Australian government appointed Woodward J. as a Commissioner to inquire into and report upon:

"The appropriate means to recognise and establish the

traditional rights and interests of the Aborigines in and in

relation to land, and to satisfy in other ways the

reasonable aspirations of the Aborigines to rights in or in

relation to land, and, in particular, but without in any way

derogating from the generality of the foregoing:

(a) arrangements for vesting title to land in

the Northern Territory of Australia now

reserved for the use and benefit of the

Aboriginal inhabitants of that Territory,

including rights in minerals and timber,

in an appropriate body or bodies, and for

granting rights in or in relation to that

land to the Aboriginal groups or

communities concerned with that land;

(b) the desirability of establishing suitable

procedures for the examination of claims

to Aboriginal traditional rights and

interests in or in relation to land in

areas in the Northern Territory of

Australia outside Aboriginal reserves or

of establishing alternative ways of

meeting effectively the needs for land of

Aboriginal groups or communities living

outside those reserves;

...

(d) the changes in legislation required to

give effect to the recommendations arising

from (a), (b)...".

46. The first report was forwarded to the Governor-General on 19 July 1973 and tabled in the House of Representatives on 22 August 1973 (see Parliamentary Paper No. 138 of 1973). It contained a description of what his Honour understood to be the traditional relationships between Aborigines and their land. That description was, however, qualified by his Honour in the following words:

"Some of what follows may be open to dispute among experts

and there will necessarily be some oversimplification of

complex situations. I believe it to be a fair summary for

present purposes."

47. The first report was circulated to the two Land Councils, the establishment of which his Honour also recommended and submissions were heard, inter alia, on the various points that were made in the initial report. The second report reproduced as Appendix A the description of the traditional relationship between Aboriginals and their land, as contained in the first report with the comment that that description appeared to have been accepted by Aborigines and others who had studied the subject. For convenience Appendix A is reproduced as Appendix A to this judgment. The second Report also contained detailed legislative instructions for the drafting of a Bill to implement the recommendations in the Report. The draft as prepared contained a definition of the expression "traditional Aboriginal owners" in terms virtually identical to the present definition, including the phrase "local descent group".

48. Appendix A was subjected to exhaustive analysis by counsel for the parties. Three things may be said of it. First, there are passages which strongly suggest that the land owning unit which his Honour had observed in the Northern Territory was the patrilineal clan. Second, some passages suggest that the local descent group is a sub-group of a larger tribe or linguistic group and is not synonymous with either, although there are other passages which seem to equate dialect group with local descent group. Third, and most significantly, his Honour recognised that there was disagreement among anthropologists as to the exact nature of the relationship between Aboriginal organisation for land holding and for land usage, and that the social organisation differed from one part of the Northern Territory to another.

49. When, therefore, his Honour described the local descent group as a patrilineal clan, distinct from the tribe or linguistic group, his Honour was not seeking to exclude the possibility that in some particular area of the Northern Territory, there could be a land-holding group, in the relevant sense, that was not a patrilineal clan. He was generalising from his experience as a Commissioner in preparing the report.

50. Perhaps that explains why his Honour used the phrase "local descent group" in the draft, rather than "patrilineal clan", for use of the latter expression would have had two difficulties. First, it would have brought into the proposed legislation expressions used by anthropologists, where there was not uniformity in the way those expressions were used. Second, it would have unduly limited the possible structure of the group, when exceptions to the concept of the patrilineal clan might subsequently be discovered. The important thing was that membership of the group be based on principles of descent, and that the group have both spiritual affiliation to the land and primary responsibility for the site and for the land.

51. A bill based on his Honour's draft was introduced into Parliament on 16 October 1975. In the course of the Second Reading Speech to that Bill, the then Minister for Aboriginal Affairs, Mr Johnson, referred to the pledge of the government to:

"...establish a system of Aboriginal tenure based on the

traditional rights of clans and other tribal groups for land

which is reserved for Aboriginal use and benefit and to vest

such land in Aboriginal communities."

52. (See Hansard (Cth) House of Representatives 1975 vol.97 at 2223).

53. That bill, which contained a definition of "traditional Aboriginal owners" virtually identical to that contained in the present Act, lapsed as a result of the dissolution of Parliament on 11 November 1975.

54. Nevertheless, the concept of Aboriginal land rights was one which had bipartisan support and the present Act, in bill form, was introduced by Mr Viner, the then Minister for Aboriginal Affairs and read a second time on 4 June 1976. Although the scheme adopted in the present legislation differed somewhat from that contained in the initial draft of Woodward J., the definition of "traditional Aboriginal owners" had remained virtually unchanged. The Second Reading Speech contained the following passage:

"Traditional Aborigines associate identifiable groups of

people with particular `countries' or tracts of territory in

such a way that the link was publicly reputed to express

both spiritual and physical communication between living

people and their `dream time' ancestors and between the

`country' as it now is and the `ancestral' country which had

been given its names, its physical features, its founding

stocks of food and water, and its owners and possessors by

the ancestors themselves. It is believed that ancestors

left in each `country' certain vital powers that, used

properly by the right people, make that `country' fruitful

and ensure a good life for people forever. Everywhere there

was a plan of life - a good and satisfying life - based on

an identifiable and unmistakable group of people forming a

descent group or `clan', living with relation to an

identifiable territory publicly recognised as the `country'

of the group because of the actions of ancestors who had

left in each `country' sacred memorials - the totems and

totemic sites of which we hear so much - as proof of

entitlement for, and to guide and discipline, their

descendants."

55. (See Hansard (Cth) House of Representatives 1976 vol.99 at 3081).

56. This passage was thought, by Olney J., to indicate that the intention was to enact legislation based upon an understanding of the Aboriginal relationship to land identical to that expressed by Woodward J. So much may be conceded. But it may be noticed that nowhere did Mr Viner suggest that what was to be considered exclusively of any other form of grouping, was the patrilineal clan. Indeed the comments rather suggest that the particular group would be one easily identified with respect to a particular area of land or "country", but suggest no restriction as to the particular principle of descent which would be found to govern the group.

57. In these circumstances there seems no warrant to regard the comments of Woodward J. as to the general nature of the descent group to be controlling of the generality of expression used in the definition. The words must be given, as far as that is possible, their ordinary English meaning having regard to the context in which they appear, and this is confirmed by a consideration of the extrinsic material to which s.15AB of the Acts Interpretation Act 1901 directs attention.

58. We were referred to a considerable body of reports, commencing with the Second Report of the Ranger Uranium Environmental Inquiry presided over by Fox J., a judge of the Supreme Court of the ACT and a judge of this court, and continuing on through a series of reports of the various Aboriginal Land Commissioners in respect of particular claims, being reports of Toohey J., when a judge of this court, Kearney and Maurice JJ., then judges of the Supreme Court of the Northern Territory, and of Olney J. himself in which views had been expressed as to the meaning of the expression "local descent group".

59. The Ranger report was written before the present legislation commenced, but on the basis that it was then in operation. The authors of that report accepted as the meaning of the expression "local descent group" the meaning ascribed to it by Woodward J. in his First Report. A perusal of the reports of findings and recommendations of Toohey J. show that Toohey J. initially took a similar view. However, the local descent groups presented in the first three claims were based on a principle of patrilineal descent, so that the question was presumably not the subject of argument. However, in his report on the Uluru (No. 4) claim, Toohey J. found that the Act did not limit descent to patrilineal groups but accepted, in that case, the operation of an ambilineal principle of descent.

60. His Honour's views, as ultimately arrived at were summarised in his report as Commissioner in the Finniss River Land Claim in the following terms (at para 161):

"In essence my view was and is that a local descent group is

a collection of people related by some principle of descent,

possessing ties to land who may be recruited... on a

principle of descent deemed relevant by the claimants. That

description is apt to include the instances of patrilineal

descent, patrifiliation and matrifiliation among the

Kungarakany claimants."

61. A similar view was thereafter expressed by subsequent Commissioners, including Olney J. himself, until the present case. It may well be that, at least in the case of claims determined by Olney J., no argument was addressed to the matter.

62. There was some debate as to the relevance of these reports, and indeed of two reports of Toohey J., unrelated to particular land claims, reporting on the operation of the Act: "Seven Years On" a report to the Minister for Aboriginal Affairs on the operation of the Act of December 1983, and an earlier report presented to the Minister on 3 December 1981 in accordance with s.61 of the Act. Reports of this kind are not, of course, in the same category as reports of judicially decided cases. Reports on particular land claims are the result of an administrative enquiry, albeit heard after evidence and submission. That enquiry, while by Statute required to be conducted by a judge, is conducted by that judge as a persona designata and not in his judicial capacity. Reports to the Minister are obviously in the same category.

63. This is not to say that the views expressed in those reports are not to be afforded respect. They are the opinions of persons greatly experienced in the area of Aboriginal Land Rights claims, as well as being persons experienced in the law. The views so expressed could, however, never be controlling.

64. In the present case, however, the views expressed by the Commissioners in their later reports coincide with the ordinary meaning of the expression "local descent group" and correctly state the law, subject to two matters which call for comment. The first is, as was indeed recognised in a number of reports, although the underlying principle of recruitment to a group must be some form of descent, that need not be seen in a biological sense, and persons not claiming biological affiliation may be adopted into and become part of the group. Thus the principle of descent should be interpreted not solely in a biological sense. Second, the words "deemed to be relevant by the claimants" may be misinterpreted by some. What has to be found is the existence of a group, recruited by descent, possessing ties to the land and otherwise satisfying the criteria set out in the definition of "traditional Aboriginal owners". The particular principle of descent in operation will depend upon the circumstances of the particular case. It may be that, in a particular area, the Aboriginal people of that area have adopted the principle of matrilineal descent; in another area, there may have been adopted some other principle of descent. The point is that the principle of descent will be one that is recognised as applying in respect of the particular group. Further, there is no reason why the particular principle of descent traditionally operating may not change over time. That is what Toohey J. meant when his Honour used the words:

"...a principle of descent deemed relevant by

the claimants."

65. It should not be thought that the words are to be taken to suggest that the governing descent principle in operation in a particular group could be changed by them at whim so as to fit the circumstances of a land claim.

66. In determining whether on the facts there exists such a group it would be no disqualification that the claimants are members of a linguistic group, provided membership of that group is recruited on a principle of descent and the group otherwise qualified as having the necessary spiritual affiliation to the land and was under the necessary primary responsibility for the site and the land.

Whether a single person could be a "local descent group"

67. Under this heading two matters were argued. First, it was submitted by the applicants that, even if there were only one survivor of a group at the time the Commissioner made his report, this sufficed, provided that there had been in existence in the past a relevant local descent group. Second, it was submitted in the alternative that as a matter of construction, one person could constitute a group.

68. As to the first submission, it need only be said that the Act contemplates that the relevant "local descent group" be in existence at the time its composition is to be determined. For present purposes, that is at the time the Commissioner makes his finding as to the existence or otherwise of the "group". It may be recognised that groups may die out. If the legislature had wished to predicate the making of a recommendation as to the grant of land to a Land Trust on the existence at some time in the past of a local descent group it could have said so in express terms. Instead, the Act speaks in s.50(1)(a) in the present tense, requiring the Commissioner to ascertain whether the relevant claimants or others are the traditional Aboriginal owners of the land. Similarly, the definition of "traditional Aboriginal owners" speaks in the present tense of a group of Aboriginals who "have common spiritual affiliations".

69. As to the second submission, the very word "group" carries with it the connotation of more than one member. While the singular may include the plural subject to context, the context here requires that the group have more than one member. Further, the reference to "common spiritual affiliations" as a characteristic of the "group" reinforces this interpretation.

70. Different views have been taken with respect to this matter in the past. The authors of the Ranger Uranium Report expressed themselves in unequivocal terms when they said (at 277):

"We do not doubt that a sole surviving member of a clan can

be regarded as a group for relevant purposes."

71. On the other hand, Toohey J., without finally deciding the matter expressed the contrary view in, for example, his Report into the Alligator Rivers Stage II Land claim (at para 161) as follows:

"That leaves only one person able to assert membership of

the Djindibi gunmugugur and thus able to assert traditional

ownership. The Land Rights Act defines `traditional

Aboriginal owners' to mean a local descent group who possess

certain qualifications. The ordinary understanding of

`group' is of a number of persons belonging or classed

together. I think that is what the Act contemplates, not

one individual. I doubt that it is right to read `group' in

the Act as something having a corporate identity distinct

from those who comprise it. The emphasis in the Act is upon

`a local descent group' and upon `Aboriginals'. It is true

that, by reason of the Acts Interpretation Act 1901, s.23,

one may read singular for plural as well as plural for

singular but that exercise is not profitable here. The

notion of traditional Aboriginal owners is controlled by the

existence of a local descent group and a group possessing

common spiritual affiliations. But it is unnecessary to

reach a firm conclusion in this regard."

72. Reference may be made as well to his Honour's Report on the Finniss River claim at para 236, and the acceptance of that view by Kearney J. at para 84 of the Report on the Murranji Land Claim.

73. We were pressed with what was said to be the anomaly arising where there are two persons, one clearly having the necessary spiritual affiliation to the land and the other a child, who has not yet learned that affiliation, but who could be expected in due course to develop it. In such a case (it is possible that it arises in the present claim) if there is no commonality of spiritual affiliation at a particular point in time there will be at that time no traditional Aboriginal owners. However, this does not mean that the possibility of a claim is forever lost. When the commonality is there, a claim will then be able to be made and will be successful, subject to the limitation period contained in s.50(2A). Further, the Act does not prevent the making of a second claim (subject to s.50(2A)) where the basis on which it is contended that the applicants are the traditional Aboriginal owners in the subsequent claim is s.50(2B)(d):

"...`substantially different' from the basis on

which the like contention was made in relation

to the previous claim...".

74. Nor does this conclusion run contrary to what one can infer to be the policy of the legislation. That policy was to allow a claim to proceed to a recommendation where there could be shown to be a group of traditional owners. Where the group had so far died out that only one member of it remained, the existence of a body of persons who could hand down the knowledge of the religious significance of the land to the next generation would at least at that moment no longer exist. If the group later revived, then, it would at that time qualify for the making of a recommendation, it being then at the discretion of the Minister and ultimately of the Governor-General whether a land grant for the benefit of that group and other Aboriginals would proceed.

75. In concluding that a local descent group could not be formed of one member alone, his Honour did not err in law.

The relevance of strength of traditional attachment

76. Having regard to the decision of this court in Jungarrayi v Olney (the Kanturrpa Repeat Land Claim) delivered at the same time as the present judgment, and in respect of which the question more directly arose, it is unnecessary to discuss this question. It is sufficient to say that in taking into account the strength of the claimants' attachment to the land in determining whether among the claimants there were to be found "traditional Aboriginal owners" his Honour fell into error.

The method of determination of the common spiritual affiliation of the group.

77. As his Honour observed in the course of his Report, the question whether or not a group of claimants can establish its status as traditional Aboriginal owners of the land is ultimately a question of applying the statute to the particular facts as found. His Honour recorded that there were two main approaches to the factual finding process (at para 8.47):

"First, the Commissioner can analyse the evidence of the

individual witnesses to ascertain which of them can fairly

be said to have spiritual affiliations to a particular site

which place that person under a primary spiritual

responsibility for the site and the land and then proceed to

assess whether those spiritual affiliations are `common' to

the persons concerned and to the extent that they are,

whether the persons with those affiliations are members of a

local descent group. The alternative approach is to

identify a local descent group and then to ascertain whether

the members of the group have common spiritual affiliations

of the type referred to in the definition."

78. Neither approach was, his Honour observed, without difficulty and the approach to be adopted would obviously be determined by the way a particular claim was presented.

79. In assessing the present claim his Honour adopted, so it was said, the first approach, notwithstanding that the only correct approach was the second. Thus his Honour proceeded to assess the spiritual affiliation of the individual members said to comprise the group, rather than to consider the spiritual affiliations of the group as a group.

80. There is little doubt that the way the Commissioner will proceed with the task before him must vary depending upon the way the evidence is presented. The task of the Commissioner is first to ascertain the relevant group to be investigated and then to determine whether the members of that group have the requisite common spiritual affiliation such that the group is as a result under a primary spiritual responsibility for the site and the land. A group necessarily comprises persons. Clearly it is not necessary to call each member of the group to give evidence to establish that they have the appropriate spiritual affiliation. It will be sufficient if the evidence establishes, on the balance of probabilities, that the Aboriginals who comprise the group have that affiliation.

81. It may be noted that the definition of "traditional Aboriginal owners" speaks of:

"...a local descent group of Aboriginals who-

(a) have common spiritual affiliations....; and

(b) are entitled... to forage."

82. The use of the plural in each case suggests that the common spiritual affiliations, have to be possessed by the individuals who comprise the group, rather than, if there be a difference, by the group as a group. Similarly it is the Aboriginal members of the group who are entitled to forage, not the group. Thus if a group of persons having an appropriate genealogy is found to exist, but some members of the group, whether because of age or otherwise, eg infants, lack the requisite spiritual affiliation, those persons will be excluded from the group. If only the group itself were looked at, then the fact that the group as a whole was recognised as having the appropriate spiritual affiliation would not disqualify individual members of that group lacking the necessary spiritual affiliation from belonging to the group.

83. This accords too with the policy of the Act in requiring, after grants of land have been made, the consent of traditional Aboriginal owners to various decisions of the Land Councils in respect of the traditional land. It would be indeed strange if persons themselves lacking the necessary spiritual affiliation, or, even knowledge of it, could participate in the decision-making process. Rather, the Act contemplates that each member of the local descent group must share in common with each other member the common spiritual affiliations to a site on the land of which the definition speaks.

84. Provided, however, that this is recognised, the manner of proof to be adopted will depend upon the way the claim is presented. In the present case his Honour made no error of law.

The need for the claimants to actually advance themselves as traditional owners

85. In the course of identifying whether on the facts before him there existed a local descent group which qualified as being "traditional Aboriginal owners" his Honour referred to the fact that none of the three Wagaitj groups seriously advanced themselves as being traditional owners in any sense.

86. For the applicants it was submitted that whether the claimants put themselves forward as being traditional owners was irrelevant. The concept of "traditional Aboriginal owners" was, it was said, a statutory concept, part of "White man's law", whereas the witnesses were using the expression "traditional owners" in the sense understood by the Aboriginal people. It is not clear from the Report that his Honour did fail to distinguish the linguistic sense in which the words "traditional owners" were used by the claimants to whom he referred. Clearly it will be relevant that a person disclaims membership of a group, or asserts himself or others not to be within the class of "traditional Aboriginal owners", and not irrelevant that the person disclaims being a member of the class of traditional owners in the sense used by the Aboriginal people themselves. After all, the defined term is an attempt to equate with the reality existing in the Aboriginal community.

87. Having regard to the doubt expressed above as to whether his Honour did confuse Aboriginal concepts with the criteria in the Act, and because in any event a decision on the matter would not affect the outcome of the present proceedings, it is unnecessary to pursue this question further.

The relevance of a claimant group having spiritual affiliation with sites other than the land

"The claim advanced by the NLC on behalf of the three

Wagaitj groups is expressly put forward on the basis of

their respective language-group affiliations. It is not

said that individual local descent groups within the overall

language-groups have the necessary qualities to be regarded

separately as traditional Aboriginal owners of the claim

area or any part of it and the evidence suggests the

contrary, namely that the various family groups who are put

forward in this claim have common spiritual affiliations

with sites elsewhere than on or near the claim area and in

some cases continue to actively maintain those links by

visiting their own countries."

89. It was submitted that his Honour erred in law in this paragraph because, for the purposes of the Act, it was neither decisive nor relevant that claimants had spiritual affiliations to sites in other areas of land.

90. It is doubtful that this matter was regarded by his Honour as in any way conclusive, because the groups advanced were not, in any event, patrilineal clans and so did not meet the requirement of a local descent group as seen by his Honour. However, it may be observed that the Act itself makes it clear that a group of "traditional Aboriginal owners" may have spiritual affiliations with sites on other lands, see s.4(1B). In part, this could come about because of the way the particular land the subject of a claim is defined, as well as by the fact that two areas of land the subject of claims are separated by alienated land, so that it becomes necessary that two claims be made in respect of differently defined land.

91. This view accords also with what was said in Re Toohey; Ex parte Stanton (1983) 57 ALJR 73 by Wilson J. at 75 (with whom Mason J. agreed) and by Brennan J. at 78.

92. Once a land claim has been made, s.50(1) of the Act imposes an obligation upon the Commissioner to ascertain whether there are any Aboriginals who constitute a class of "traditional Aboriginal owners", notwithstanding that the Commissioner has determined that the claimants do not satisfy the definition. It is not clear from the Report that his Honour failed to recognise this duty, and it ill behoves the applicants now to raise the matter before us when they never invited his Honour to take this course at the hearing. The applicants recognised this as a "fall-back" argument, in case they were unsuccessful on the other matters. Accordingly it need not be considered further.

93. His Honour has, in the respects noted, erred in law in coming to the finding that there were in respect of the land claimed no traditional Aboriginal owners. The errors noted are such that they might have influenced the outcome. Certainly, and despite the submissions to the contrary of the respondents, it is impossible to say that his Honour could on the evidence before him have reached no different conclusion even if he had correctly applied the law. It may well turn out to be the case that there is only one local descent group relevant to the land, irrespective of the manner in which the composition of that group is determined. It may well be the case that no local descent group exists because only one person remains as the present survivor of a former group. But these are matters of fact for his Honour to determine, not for this court.

94. It follows that the finding made by his Honour should be set aside and the claim referred back to a Land Commissioner to be heard and decided in accordance with law.