Editors --- "Tapgnuk and Ors v. Northern Land Council and Ors - Case Summary" [1996] AUIndigLawRpr 97; (1996) 1(4) Australian Indigenous Law Reporter 602

Tapgnuk and Ors v. Northern Land Council and Ors

Supreme Court, Northern Territory (Angel J)

16 May 1996, Darwin

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) - power of Aboriginal Land Commissioner to ascertain 'traditional owners' under sub. 50(1)(a) - whether such finding is conclusive as against the power of a Land Council under ss. 23 and 24.

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On 31 March 1978 the Northern Land Council (the first defendant) (NLC) lodged a claim known as the Daly River (Malak Malak) Land Claim. The then Aboriginal Land Commissioner (Toohey J.) delivered his report on 12 March 1982 to the Minister for Aboriginal Affairs. It identified a list of traditional Aboriginal owners for the area, which included the plaintiffs. The second defendants challenged Toohey J's findings. They identify as representatives of a Kamu descent group(s) within the area but Toohey J held that they were not capable of constituting a local descent group as defined in the Act and, accordingly, could not be identified as traditional owners.

But the Northern Land Council nominated several people to the Land Trust for the area, some identifying as Malak Malak people and some as those of Kamu descent. But the Kamu people as a whole were not added to the Land Trust, and they initiated a dispute resolution procedure under which the NLC would determine the issue.

The plaintiffs sought declarations in the Supreme Court that they and the people they represent, were found by Justice Toohey to be traditional owners of the area and that the findings are binding on the NLC.

Held:

The Aboriginal Land Commissioner's findings as to traditional owners are not binding and conclusive so as to restrict the powers of the Land Council to form its own opinion within the scope of the Act.

Angel J:

These proceedings were commenced by Originating Motion on 2 August 1995. The plaintiffs seek various forms of declaratory relief.

The plaintiffs bring this action as representatives of the identified traditional Aboriginal owners of an area of land known as the Daly River (Malak Malak) Land Trust. Executed by the Governor General on 21 February 1990 was a grant of land in fee simple, to the Daly River (Malak Malak) Land Trust. This grant was made pursuant to s. l2 of the Aboriginal Land Rights (Northern Territory) Act 1974 (Cth) (the Act). The grant was the culmination of a process begun by the first defendant on 31 March 1978. The first defendant, the Northern Land Council (the Council) is established pursuant to the Act, It may be sued in its corporate name. It initiated the process by lodging a claim over an area of land in the Daly River region in the Northern Territory ('the land'). That land claim was known as the Daly River (Malak Malak) Land Claim.
A hearing was commenced by the Aboriginal Land Commissioner at the time, Toohey J, pursuant to s. 50(l)(a) of the Act. Toohey J delivered his report on 12 March 1982 to the Minister for Aboriginal Affairs. Paragraph 178G of that report identifies a list of traditional Aboriginal owners for the land claim are. The plaintiffs appear within this list.

The second defendants challenge Toohey J's findings. The second defendants identify as representatives of a Kamu descent group(s) also found within the area. They reject a conclusion of Toohey J that the Kamu were not capable of constituting a local descent group as defined in the Act. This conclusion meant they could not be identified as traditional Aboriginal owners of any of the land. Toohey J's consequent conclusions as to traditional ownership, as manifested in para. 178G of his report are also challenged. The second defendants claim they are in fact traditional Aboriginal owners of certain segments of the Daly River land.

On 17 April 1986, the first defendant is alleged to have nominated several people to the Land Trust: some identifying as Malak Malak people and some as those of Kamu descent. On 24 July in that same year the first defendant then apparently advised Arthur Que Noy (one of the second defendants) that he and other Kamu people were recognised as having traditional ties to country in the Daly River region. Two years later, on 21 May 1988, a meeting appears to have been convened between the Kamu and Malak Malak people by the defendant Council. The Kamu people allege they were then told they would be added to the Land Trust after the land had been granted to the Malak Malak.

In September of 1989 the first defendant nominated further people to the Land Trust. Among those nominated were Albert Myoung and Biddy Lindsay; both are plaintiffs in this action. Also nominated was Arthur Que Noy; a defendant in this action. Once again, both Kamu and Malak Malak people were nominated by the Land Council. On 14 February 1990 these people, among others, were actually appointed as members of the Daly River (Malak Malak) Aboriginal Land Trust pursuant to s. 7 of the Act. Five days later the Governor General signed a Deed of Grant pursuant to s. l2 of the Aboriginal Land Rights Act granting the land to the Land Trust. On 21 February 1990 a presentation ceremony was held with the then Minister for Aboriginal Affairs, Mr Gerry Hand, to mark the grant of the land to the Land Trust. The Deed of Grant was presented to members of the Malak Malak people. A duplicate was given to the Kamu people. The Kamu people, as a whole, were not added to the Land Trust. By letter dated 15 October 1992 the second defendants sought, through their solicitors, to have the first defendants (the Council) determine that they, as Kamu people, have traditional ownership over certain parts of the Land Trust land. A dispute resolution procedure was established. However, the procedure appears not to have commenced.

These matters provide the background to the relevant events of 1995.

On I June 1995 the first defendant advised Kamu people by letter (Annexure AQN 13 in the Affidavit of Arthur Que Noy) that the NLC Full Council had resolved to give substantial consideration to the dispute between the Kamu and the Malak Malak at the Full Council meeting to be held on 10 July 1995. The hearing by the Full Council was then to be postponed until, at earliest, October 1995: see Annexure AQN 14 of the Affidavit of Arthur Que Noy. Proceedings were then initiated by the plaintiffs in this court.

The plaintiffs claim to be representatives of the traditional owners that are identified in the Daly River (Malak Malak) Land Trust. They allege the first defendant, in attempting to determine who are the traditional Aboriginal owners of the land, has refused to adopt the findings of Toohey J as Aboriginal Land Commissioner. Arthur Que Noy and others (as Kamu people representatives) were joined as defendants to the proceedings; being persons whose legal rights may be directly affected by the questions in issue. They were accordingly joined by decision of the Master on 16 November 1995. The plaintiffs seek declaratory relief. Two declarations are sought:

1. That the plaintiffs and the people they represent were found by Mr Justice Toohey to be traditional Aboriginal owners of the Daly River Malak Malak Land Trust area.

2. That the findings in declaration 1 above are binding on the first defendant.

The first declaration sought is not necessary to the determination of the issue. Toohey J found those persons listed at para. 178G of the Land Commissioner's Report (whom the plaintiffs represent) to be traditional Aboriginal owners. Beyond this, further conclusion is unnecessary. The plaintiffs may or may not be the only traditional Aboriginal owners of the specified area.

The real question may be resolved irrespective of the substance of the Land Commissioner's findings as to traditional Aboriginal owners: if the Land Commissioner's findings concerning Aboriginal traditional owners are such that a grant of land is made, are such findings binding on the Northern Land Council so as to preclude that Council from undertaking its own investigations (for whatever purpose) subsequent to the grant of land? The answer lies in the powers of the Council as defined by the Aboriginal Land Rights (NT) Act and whether those powers are in any way restricted by the statute or the common law.

One must begin with the Aboriginal Land Rights (Northern Territory) Act (1976) (Cth) (the Act). It was submitted by Mr Levy for the first defendants that the Act, being legislation of a beneficial nature, should be construed widely. There are statements of the highest authority to this effect. The beneficial purpose of the Act is to be a paramount consideration in its interpretation: See Northern Land Council v. Aboriginal Land Commissioner [1992] FCA 69; (1992) 105 ALR 539 at 547; R v. Kearney; ex Parte Jurlama [1984] HCA 14; (1984) 158 CLR 426 at 433 per Gibbs CJ with whose judgment Brennan, Deane and Dawson JJ agreed. The Act establishes detailed machinery to further the interests of the Aboriginal people. The mechanisms include Land Trusts, Land Councils and grants in fee simple to Land Trusts: Pareroultja v. Tickner [1993] FCA 465; (1993) 42 FCR 32 at 40.

The Full Federal Court elucidated the purpose of the Act in Northern Land Council v. Aboriginal Land Commissioner, supra, at 548:

'The judgment of Brennan J in R v. Toohey; ex parte Meneling Station Pty Ltd at CLR 356, above, 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 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 ... the policy of the Act also recognises, as Wilson J pointed out in R v. Kearney; ex parte Northern Land Council at CLR 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 21st 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 oh true respect for the dignity and well being of all its citizens.'

The first defendant, the Northern Land Council, is a creature of the Act established as a body corporate pursuant to ss. 2l and 22. The powers of the Council likewise derive from that statute. In addition to the Council, the Act also establishes the position of an Aboriginal Land Commissioner (the Commissioner): s. 49. The functions of the Commissioner are outlined in s. 50 of the Act. Section 50(l)(a) of the Act reads:

' 1. The functions of a Commissioner are:
(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 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.'

The Commissioner has an obligation to ascertain who, if anyone, are traditional Aboriginal owners of land under claim. The Commissioner's findings are to be to reported to the Minister: s. 50(l)(a)(ii). The Commissioner must ascertain who the traditional Aboriginal owners are in accordance with the definitions contained in the Act. The jurisdiction of the Commissioner is administrative in character. The proceedings are inquisitorial, not adversarial; R v. Maurice; Ex parte Attorney-General CNT (1987) 73 ALR 123 at 126 per Bowen CJ, Lockhart and Sheppard JJ. In R v. Maurice their Honours entreat (at 142):

'It should also be noted that there are no parties in the strict sense before the Commissioner and his comments have no operative effect as to any legal rights. He was [sic] also holding an inquiry in accordance with the Act and in this inquiry there are participants ...'

The Commissioner's conclusion is reached through a process of inquiry that although administrative in character, is performed and reasoned according to law.

The Commissioner has a duty to 'ascertain'. The Oxford English Dictionary defines the verb 'ascertain' as meaning: to make subjectively certain; to make a person certain, sure or confident; to find out or learn for a certainty by experiment, examination or investigation. The Commissioner is therefore to find out for a certainty, by investigation, who traditional Aboriginal owners might be. If traditional Aboriginal owners of the land do exist the Commissioner must recommend to the Minister that a grant of the land be made. The Minister is not bound by the recommendation of the Commissioner. Matters not raised before the Commissioner but subsequently raised before the Minister must be taken into account by the Minister: Minister for Aboriginal Affairs v. Peko Wallsend [1986] HCA 40; (1986) 162 CLR 24. The Minister is only obliged to recommend to the Governor-General a grant of land when:

's11 ...
(b) the Minister is satisfied:

(i) that the land, or a part of the land, should be granted to a single Land Trust to be held for the benefit of Aboriginals who are the relevant Aboriginals in relation to that land or that part of that land; or
(ii) that different parts of the land should be granted to different Land Trusts so that each Land Trust holds the land granted to it for the benefit of Aboriginals who are the relevant Aboriginals in relation to that last-mentioned land;'.

The functions of a land trust are identified in s. 5(1) of the Act. Land Trusts hold title to Aboriginal land vested in them and exercise their powers as owners of the land for the benefit of the Aboriginals involved. Ascertainment of traditional Aboriginal owners by the Commissioner necessarily precipitates a recommendation and subsequent grant of land to an Aboriginal Land Trust. For the Governor-General to grant land under the Act there must be a recommendation for such by the Minister. The Minister will only recommend granting land the subject of a land claim application under s. 50(1) where the Land Commissioner has made such a recommendation under s. 50(1)(a)(ii). There will only be such a recommendation if the Commissioner finds 'that there are Aboriginals who are the traditional Aboriginal owners of the land'. Therefore, the land is granted on the premise that there exist (at that time) traditional Aboriginal owners as defined by the Act. The Minister may also recommend that land be granted pursuant to s. l0 of the Act. That section allows, in summary, for the granting of former reserve land. No report is required by the Land Commissioner for the Minister to recommend land be granted under that section.

To understand the nature of the Commissioner's function under s. 50(1)(a) it is necessary to appreciate the concept of 'traditional Aboriginal owners': see Re Toohey; ex parte Meneling Station [1982] HCA 69; (1982) 44 ALR 63 at 86 per Brennan J (as he then was). The definition of 'traditional Aboriginal owners' is in s. 3(l) of the Act. It refers to 'Aboriginal tradition', itself a defined term, and incorporates anthropological notions through use of the words 'local descent group'. The words 'local descent group' are construed beyond their dictionary meanings to incorporate concepts of 'patrilineal clans' 'linguistic groups' and 'dialect groups'. The concepts are foreign to the common law of Australia and to most non-Aboriginal Australians. Integral to the efficacy of the Act is the fact these concepts are not frozen in time. The Act recognises that although there will be traditional Aboriginal owners at the time of the Commissioner's recommendation to grant land, if land is granted there may not be traditional Aboriginal owners at some subsequent point s. 23(3) states, inter alias:

'In carrying out its functions with respect to any Aboriginal land in its area, a Land Council shall 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; and ... [emphasis added]

Parliament, in using the words '(if any)', contemplated the non-existence of traditional Aboriginal owners.

Alternatively, if one looks to both methods of land grant, traditional Aboriginal owners may never have existed. Former Reserve land or land mentioned in Schedule 1 of the Act may be granted pursuant to s. 10 of the Act; such land is granted with neither an inquiry nor a report by the Land Commissioner. There may in fact be no traditional Aboriginal owners of such land. Nevertheless, Aboriginal Land as defined in s. 3(l) incorporates both land granted pursuant to s. 10 and land the subject of an inquiry by the Land Commissioner. This definition applies through the entire Act. The Act does not discern between Aboriginal land based upon the method of grant, despite the fact traditional Aboriginal owners have been ascertained by the Land Commissioner only for land granted pursuant to a s. 50(1)(a) application. Traditional Aboriginal owners may never have existed in the case of land granted under s. l0 or at the time of grant, never identified.

With no distinction between types of Aboriginal land, the reference in s. 23(3) to 'traditional Aboriginal owners (if any)' is capable of two meanings to give efficacy to the Act. It may mean in the case of a land grant resulting from an inquiry and report by the Land Commissioner that the legislature has foreseen the inevitability of mortality. Alternatively, in the case of a grant of Schedule 1 land it may mean there were never any Aboriginal traditional owners at all. I believe it means both. Nowhere in the Act is there a distinction for managing land based on how it became 'Aboriginal land'. Once granted, all Aboriginal land is treated, by the Act, in the same manner; the reference to 'traditional Aboriginal owners (if any)' must therefore relate to all Aboriginal land.

Section 24 becomes a logical progression when s. 23(3) is construed thus. Section 24 states:

'A Land Council may compile, and maintain, a register setting out:

(a) the names of the persons who, in the opinion of the Council, are the traditional Aboriginal owners of Aboriginal land in the area of the Land Council; and

(b) in relation to each group of traditional Aboriginal owners, a map or other references showing the sites belonging to them in so far as such can be done without breach of Aboriginal usage.'

Section 24 only operates once a grant of land has been made. It must be read in conjunction with s. 23(3) and of course, the entire scheme of the Act. If a grant of Schedule 1 land has been made, the Land Council may be unaware as to whom any traditional Aboriginal owners may be. For the Council to fulfil its functions under s. 23 it must be ascertained who the traditional Aboriginal owners are.

The Land Commissioner's power to ascertain who traditional Aboriginal owners are extends only to land the subject of an application under s. 50(l) of the Act. If no such application is made the Land Commissioner's powers of ascertainment are not invoked. But, for the efficacy of the Act, the ascertainment of traditional Aboriginal owners must occur. By implication, s. 24 provides a Land Council with a power to perform that function, at least for Schedule 1 land that has become 'Aboriginal Land.' The Act however makes no distinction between Aboriginal Land granted through Schedule 1 or pursuant to a s. 50(1) land claim.

The utility of s. 24 extends beyond grants of Schedule 1 land. Section 23(3) evidences Parliament's contemplation that traditional Aboriginal owners will pass away. Through succession new traditional Aboriginal owners may emerge over time; s. 24 evidences an intention to monitor this. The section illustrates a recognition by Parliament that traditional Aboriginal owners of land can change over time; it not only empowers the Council to compile a register but to 'maintain' it. The term 'maintain' imports a recognition that over time the composition of traditional Aboriginal owners may change. Alternatively, all traditional Aboriginal owners may not have been identified by the Land Commissioner in his report if the land was granted pursuant to ss. ll and 12. Toohey J contemplated as much when Aboriginal Land Commissioner in the Warlpiri and Kartangarurru-Kurintji Claim. At paragraph 86 of his report, Toohey J stated:

'That would be a matter of concern if it implied that there were many traditional owners who had not been taken into account, But I do not think that inference can be drawn. There are many Warlpiri whose traditional country is on pastoral leases such as Mount Doreen and who therefore cannot lay claim to any of the land within Area 1 or 2. What the number is did not appear during the course of the hearing but since the identification of traditional owners can never be an exercise of 100 per cent accuracy and having regard to the role of the Land Councils under s. 24 of the Act to compile and maintain a register of the traditional owners, I am satisfied that there is nothing in that apparent discrepancy to warrant further investigation.'

And further at paragraph 263:

'There may well be Aboriginals, traditional owners of land within Areas 1 and 2, whose existence did not come to light during the inquiries carried out by the Central Land Council or by reason of any investigation that took place during the hearing of this claim. Section 24 of the Act should protect them.'

The above report was completed when s. 24 was mandatory. Recourse to Hansard (House of Representatives Parliamentary Debates, October 1986) indicates the Parliamentary intention behind making the section discretionary was to reduce Land Council overheads that stem from compulsory compliance with a register that, in many cases, there would not be a need to have reference to. Although s. 24 is now discretionary, the grant of power remains couched in identical terms. The words are plain and the legislative intent is clear: the Land Council may compile and maintain a register of persons who 'in the opinion of the Council, are traditional Aboriginal owners'. The word 'opinion' in the context means in the judgment or belief of the Council.

The Land Council is empowered subsequent to a grant of land being made, irrespective of how the grant came to be made, to determine the traditional Aboriginal owners. They cannot be bound by a report of the Land Commissioner. Firstly, there may be no such report and secondly, if the Council were bound by the report of the Land Commissioner as to who the traditional owners were, then s. 24 of the Act would not use the words 'in the opinion of the Council'.

To view s. 24 as anything but an implied power to form a judgment would render it substantially inoperative. This implied power does not allow the Land Council to form a subjective judgment as to Aboriginal traditional owners without heed to the Act. It is a power which the Council must exercise in accordance with law. In forming its 'opinion' the Council is under a dual duty first to take account of all relevant considerations and secondly to not take account of irrelevant considerations. The relevant considerations are determined by analysing the Aboriginal Land Rights (NT) Act as a whole. They are the same considerations the Land Commissioner must contemplate. The Council must abide by the Act, its definition of traditional Aboriginal owners, and all relevant case law thereon. The Council is empowered to 'obtain the advice and assistance of persons who are expert in any matter which the Council is concerned': s. 27(l)(b). The initial starting point, for both the Commissioner and the Land Council, must be the definition of traditional Aboriginal owner (and all that it incorporates) within s. 3(l) of the Act. As a consequence the same considerations that a Land Commissioner applies must be applied by the Council. Providing the Council forms its opinion in accordance with law, it is entitled to form a contrary view to the Land Commissioner. Such a contrary view could only be formed in limited circumstances; if traditional Aboriginal owners change through succession over time; if the Land Commissioner failed to identify all the traditional Aboriginal owners; or, if the Land Commissioner's inquiry was seriously flawed in some material respect.

If a Land Council chooses to exercise its discretion under s. 24 and compile a register for land granted, the natural starting point would be the findings of the Land Commissioner. In the majority of cases, after recourse to the findings of the Land Commissioner, the Council will find its opinion in complete accord with the Commissioner's.

The power granted in s. 24 is for the purpose of compiling a register. Whether or not such a register is kept is entirely at the discretion of the Land Council. However, the functions of the Land Council in s. 23 of the Act place an onus on the Council to discuss with, and have regard to, the interests of the traditional Aboriginal owners of land concerning any proposal relating to the use of that land: ss. 23(l)(c) and (3). Particular uses of Aboriginal Land require the consent of traditional Aboriginal owners: s. 23(3)(a). Therefore, identification of the traditional Aboriginal owners is vital to the function of the Council irrespective of whether a register is compiled under s. 24. One can infer the very function of creating a Register is to supply such information at a glance. Where the Council chooses not to create a register, to accept as binding the Land Commissioner's findings still ignores the possibility of traditional Aboriginal ownership not being frozen in time. It is not the intention of the Act to ignore this, given the interplay between ss. 23, 24 and 27. Section 27 provides, inter alia:

'(1) Subject to this Act, a Land Council may do all things necessary or convenient to be done for or in connexion with the performance of its functions and, without limiting the generality of the foregoing, may:

...

(b) obtain the advice and assistance of persons who are expert in any matter with which the Council is concerned (including assistance in connection with the administration of the affairs of the Council);

(3) A Land Council shall not, without the approval of the Minister, enter into, or permit a Land Trust holding land in its area to enter into, a contract involving the payment or receipt of an amount exceeding $100,000, or, if a higher amount is prescribed, that higher amount.
(4) The Minister shall not give an approval under subsection (3) with respect to entering into a contract relating to Aboriginal land unless he is satisfied that the Land Council concerned has, in taking the action that has resulted in the proposed contract, complied with any duty imposed on it by subsection 23(3).'

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 s. 23 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 s. 23. Flowing from s. 27 there exists an implied incidental power to ensure both compliance with s. 23 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 (1983) 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.'

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 ss. 50(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. (2C) Where:
(a) an application referred to in paragraph (1)(a) has been made to a Commissioner; and
(b) it appears to the Commissioner that an estate or interest in the land is held by or on behalf of Aboriginals; the Commissioner shall not perform, or continue to perform, a function under that paragraph in relation to the application as it relates to that land unless the Aboriginals who hold that estate or interest have, or the body which holds that estate or interest on their behalf has, consented, in writing, to the making of the application.'

The intent of Parliament is to prescribe the only circumstances in which the Land Commissioner may reagitate the issue. If the land has already been the subject of an application under s. 50(1)(a), the Commissioner may only entertain a subsequent application in two circumstances, first, where the Commissioner's report under s. 50(1)(a)(ii) makes no recommendations and the new claim is substantially different in basis (whether through new evidence or in the opinion of the Commissioner) and it's likely the new applicants will succeed, and secondly, where an estate or interest in the land under claim is held by, or on behalf of Aboriginals and they consent to the application. A grant of an estate in fee simple by the Governor-General under s. l2 means the Land Commissioner may only entertain a new land claim with the consent of those Aboriginal people who hold the estate; the Commissioner has no power otherwise.

The purpose of this limited power of re-examination can be found in the structure of the Act. The role of the Land Commissioner as created by the Aboriginal Land Rights Act is very clearly delineated. The primary function of the Aboriginal Land Commissioner is to enquire into Land Claim Applications and report on the existence or not of traditional Aboriginal owners. If the Commissioner finds such, he is required to recommend a grant of the land, whereupon his role effectively ceases in relation to that land. If the land is granted by the Governor-General, the Land Council assumes primary responsibility for the interests of those related to that land. The Land Council also has a responsibility to assist claimants in the formation of their claim before the Land Commissioner: see s. 23(f), The Land Council's role, contrary to that of the Commissioner's is continuous, existing prior to and surviving a grant of land by the Governor-General. The restrictions on the Land Commissioner re-exercising the power of inquiry under s. 50(l)(a) operate not because the Land Commissioner's finding is conclusive and binding, but because the Land Commissioner's task has been completed. Land is either granted or not depending on subsequent considerations by the executive arm of government. Responsibility for management shifts to the Land Council if a grant of land has been made. The Land Council's role is one of management as opposed to the Land Commissioner's which is purely one of ascertainment and reporting.

The power of a Land Council to form an opinion as to traditional Aboriginal owners is not unfettered; it is still bound by the Act. As identified, relevant to such a determination are the same factors the Land Commissioner must regard: the definition of traditional Aboriginal owners in the Act and all that it imports. The formulation of such an opinion is not unfettered as to the relevant considerations that must be taken into account. However, the frequency with which the opinion may be formed does appear without restriction. A power to re-appraise a state of affairs is inherent in a power to 'maintain' a register and must, by necessity, be implied when there is a continuous duty to manage affairs that may be in a state of flux over time. The Full Federal Court in Northern Land Council v. Aboriginal Land Commissioner, supra, expressed that traditional owners could change over time. At p 555 Northrop, Hill and O'Loughlin JJ said:

'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.'

The power of a Land Council to determine in accordance with the Act, traditional Aboriginal owners, may be exercised innumerable times once a grant of land has been made. Nothing however, affects the ability of any party to seek judicial review of any resultant outcome; see Hot Holdings Pty Ltd v. Creasy (1996) 70 ALJR 286.

Counsel for the plaintiffs submit that in fulfilling their responsibilities under s. 50 of the Act and ascertaining the traditional Aboriginal owners, the finding of the Aboriginal Land Commissioner attract the doctrines of res judicata and issue estoppel. The doctrines of res judicata and issue estoppel both find their roots in the rules of public policy. Res judicata and issue estoppel are, in fact, two distinct doctrines and I shall deal with the former first.

The applicability of res judicata to decisions of an administrative nature was discussed by Gibbs J in Administration of Papua and New Guinea v. Daera Guba [1973] HCA 59; (1973) 130 CLR 353. In extending the doctrine to any judicial tribunal with authority to deliver a final decision, Gibbs J said, at 453:

'The use of the phrase judicial tribunal in this context is convenient as indicating that an estoppel of this kind does not result from a mere administrative decision, but the question whether such an estoppel is raised is not answered by enquiring to what extent the tribunal exercises judicial functions, or whether its status is judicial or administrative ... The doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a court and its jurisdiction is derived from statute ...' [Emphasis added.]

That case concerned the decision of a Land Board established for the settlement of certain disputes to land title under the Law of Papua New Guinea. The Land Board's function was to investigate if there were any disputes as to ownership regarding specific parcels of 1and. If disputes existed they were to identify the disputing parties and ultimately who were the lawful owners of land; see Daera Guba, supra, at 398.

I am of the opinion, however, that the principle of Daera Guba does not apply of 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 1996 (Cth) as discussed in Wiest v. Director of Public Prosecutions [1988] FCA 450; (1988) 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. Director of Public Prosecutions 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 where 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; 262 US 426 (1993) at 430: ' the judgement is res judicata only that he was at the time [illegally in custody] and on the issues of law and fact necessarily involved in that result'.

The conclusion is reached on the material before the decision-maker at the time. It is a step in an administrative process that is not final, its effects being subjected to considerations by the executive arm of government at the highest level. The same considerations apply to a determination by the Land Commissioner pursuant to s. 50(l)(a). By parity of reasoning, a decision of the Aboriginal Land Commissioner is res judicata only that X, Y and Z were at the time traditional Aboriginal owners and the issues of law and fact necessarily involved in that result. The determinant issue in both cases is the information before the decision-maker at the time; if that information (and consequently circumstances) are in anyway different at some later stage, the issue may be re-agitated. This is in fact the intent of the legislation as discernible from the scheme of the Act.

For the same reasons, issue estoppel does not apply to the conclusions of a Land Commissioner so as to prevent a Land Council from ascertaining traditional Aboriginal owners for the purpose of the Act. The Land Commissioner ascertains traditional Aboriginal owners on the basis of the material before him at the time and this ascertainment is the initial precondition for the train of events spelled out in the Aboriginal Land Rights Act. It can only be res judicata to traditional Aboriginal owners at the very point in time the Land Commissioner makes his conclusions.

The plaintiffs' application for declaratory relief is dismissed. The plaintiffs shall pay the defendants' costs.

The ruling on costs is subject to appeal to the Court of Appeal.

See [1996] NTSC 33; (1996) 108 NTR 1.