In this case, Black CJ, French and RD Nicholson JJ upheld the findings of the Aboriginal Land Commissioner in relation to the grant of three coastal regions of the Northern Territory to traditional owners. The Aboriginal Land Commissioner recommended the grants be made under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (‘ALRA Act’). The Northern Territory sought judicial review of each of the recommendations on the basis that the Commissioner had failed to have regard to principles he was required to consider under s 50(4) of the ALRA Act.
The respondents to the proceeding were the Honourable Justice Olney, Minister for Immigration and Multicultural and Indigenous Affairs, the Traditional Owners in the three land claims and the Northern Territory Seafood Council.
ALRA Act s 50(4)
Under s 50(4) of the ALRA Act, the Commissioner was to have regard to two principles when exercising his functions under the Act. Firstly, that Aboriginal people who are living on their traditional country and do not have a right to live there ought to be able to acquire secure occupancy of that place. Secondly, that Aboriginals who are not living on their traditional country but who desire to ought, where practicable, to be able to acquire secure occupancy of that place.
Decision of the Commissioner
In relation to all land claims, the Commissioner found that the traditional owners had a strong traditional attachment to the claim areas. They had rights to hunt, fish and forage as well as obligations to protect the land and sacred sites. However, it was not suggested that any part of the land claimed was either required or suitable as a place to live. The Commissioner concluded that the lack of desire to live on the claimed land did not diminish the spiritual links between the traditional owners and the land nor relieve them of their responsibility to protect their sites and land. He found that the principles in s 50(4) of the ALRA Act had no bearing on exercise of his functions as he interpreted the provision as applying only to situations where there was a desire to live on the land. However, emphasising the importance of construing the Act beneficially to achieve the object of granting land in the Northern Territory for the benefit of Aboriginals, he did not consider that s 50(4) worked to exclude a grant of land where there was no such desire. The Commissioner recommended that the land be granted to the traditional owners.
Decision of the Court
Applying the principles of statutory interpretation, the Court found that the principles in s 50(4) of the ALRA Act are normative statements to the effect that Aboriginals should be able to acquire secure occupancy of the place on their traditional country where they live or desire to live. The language does not suggest a limitation on the Commissioner’s functions, and the purposes of the Act and statutory context strongly point against any such implication.
The Court considered the High Court decision in R v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69 (‘Meneling’), which was argued by the Northern Territory as standing for the proposition that s 50(4) tends against the grant of land where no actual occupancy is sought. However, the Court held that this was an incorrect reading of the decision in Meneling, which considered a different question in a different factual setting. The Court concluded that the ALRA Act is concerned with the spiritual dimensions of traditional ownership which is much broader than physical occupancy of a particular location.