Tapgnuk & Ors v Northern Land Council & Ors [1996] NTSC 33; 5 NTLR 109; 108 NTR 1; 132 FLR 40

Tapgnuk & Ors v Northern Land Council & Ors [1996] NTSC 33; 5 NTLR 109; 108 NTR 1; 132 FLR 40 - NTSC 1996 case summary — Zoe

[42]

Section 27(4) reinforces the primacy 'traditional Aboriginal owners' occupy within the scheme of the Act. Having the identities of traditional Aboriginal owners determined is a task integral to the performance of the Council's functions. If the task is initially performed by the Land Commissioner the findings subsequently appear in the Land Commissioner's report. These findings are necessarily grounded to one point in time. If the Council were to be bound by such findings, future attempts to comply with s23 may be misguided if the composition of traditional aboriginal owners has changed. Hence, a determination of who are traditional Aboriginal owners by the Council is a thing "necessary or convenient to be done for or in connection with the performance of its functions" under s23. Flowing from s27 there exists an implied incidental power to ensure both compliance with s23 and the policy of the Act to protect as paramount the interests of traditional Aboriginal owners. Further support for this can be found in the obiter comments of this court in Alderson v Land Council 20 NTR 1 at 8 where Muirhead J said: "It is a delicate and complex area as is the task of finally determining who are traditional Aboriginal owners. It may be a long process, especially in the face of competing claims or conflicting anthropological advice, but it is a task the law vests in the Land Council, being as I have said an Aboriginal body with access to expert advice and recognized by the Act as the only determinative body. By reason of the very complexity of the problems and the necessity of consultation the Land Council cannot make quick decisions which may go to the future user of Aboriginal land. The nature of its relationship with Aboriginals, Land Trusts and the like are matters which cannot be sharply defined by the statute. Inevitably, especially in the consultative area, understanding and consideration of Aboriginal lore, traditions, observances, customs and beliefs is required. Where these play their part it is peculiarly a matter for eventual determination by the Land Council."

[43]

Counsel for the plaintiffs submitted that, given the grant of power to the Land Commissioner to ascertain traditional Aboriginal owners and the restrictions on the subsequent re-exercise of that power, the Land Council could not have unfettered power to determine the same issues. I agree. The limitations upon the Commissioner are found in ss50(2B) and (2C), which provide: "(2B) Where: (a) an application referred to in paragraph (1)(a) has been made to a Commissioner; (b) it appears to the Commissioner that the land to which the application relates is, in whole or part, the same as the whole or part of land to which an earlier application related; and (c) the report made under subparagraph (1)(a)(ii) in relation to the earlier application made no recommendation as mentioned in that subparagraph in relation to that land: the Commissioner shall not perform, or continue to perform, a function under paragraph (1)(a) in relation to the land (in this subsection referred to as the "common land") in which both the first-mentioned application and the earlier application relate unless the Commissioner finds: (d) that the basis on which the applicants contend that the applicants, or specified Aboriginals, are the traditional Aboriginal owners of the common land is substantially different from the basis on which the like contention was made in relation to the previous claim; (e) that information, documents or records that are likely to be relevant to the performance by the Commissioner of that function, being information, records or documents that were not available to the Commissioner to whom the previous application was made, will be available to the Commissioner in connection with the performance of that function; or (f) any other ground upon which it appears to the Commissioner appropriate to perform, or continue to perform, that function; and that it is likely that the Commissioner will find that the applicants or specified Aboriginals are the traditional Aboriginal owners of the common land.

[51]

I am of the opinion however that the principle of Daera Guba does not apply to the findings of a Land Commissioner. Prima facie, the inquiry into ownership and ascertainment of interests by the Land Board in Daera Guba are analogous functions to those of the Land Commissioner. However, the Land Commissioner does not "decide finally a question between parties". The Land Commissioner's role within the scheme of the Act is similar to that of a Magistrate under the Extradition (Foreign States) Act 1966 (C'th) as discussed in Wiest v DPP [1988] FCA 450; 86 ALR 464. At 506, Gummow J asserted the observations of Gibbs J in Daera Guba that the doctrine of res judicata extends to decisions of tribunals with statutory jurisdiction to decide finally a question arising between parties, are to be understood against the background of Australian Federal Constitutional arrangements. Wiest v DPP concerned extradition proceedings where the issue of a warrant for extradition by the Attorney-General is predicated upon a chain of events established in the Extradition Act. Upon requisition a Magistrate was to determine whether the fugitive before him should be committed to prison for the Attorney-General's surrender or should be released. Only if committed and if the Attorney-General is satisfied of certain matters, will the prisoner be surrendered to the country seeking him. The Full Court of the Federal Court held the principles of res judicata and issue estoppel did not operate upon the decision of a magistrate in such circumstances. Gummow J considered the exercise of the Magistrate's function as one to be performed by considering the materials before him at the time and the Magistrate's conclusions are only res judicata in relation to the materials and facts before him. If the materials and facts to be considered alter at any stage, res judicata can not apply to any consideration at a later stage. Gummow J cites in support the United States Supreme Court per Brandeis J in Collins v Loisel [1923] USSC 147; (1923) 262 US 426 at 430 "the judgment is res judicata only that he was at the time (illegally in custody) and of the issues of law and fact necessarily involved in that result".

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Judgment (54 paragraphs)

Tapgnuk & Ors v Northern Land Council & Ors [1996] NTSC 33; 5 NTLR 109; 108 NTR 1; 132 FLR 40 (16 May 1996)

Parties

Legislation Cited (6)

Cases Cited (8)