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Australian Indigenous Law Reporter |
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Federal Court of Australia (Mansfield J)
24 August 2006
Land Rights – Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) – traditional ownership of certain lands in dispute – judicial review – reviewable error – s 5 Administrative Decisions (Judicial Review) Act 1977 (Cth)
In 1982, Justice Toohey, then the Aboriginal Land Commissioner, delivered a report concerning the traditional ownership of certain lands in the Northern Territory. That report (‘the Toohey Report’) was precipitated by an application made under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (‘the ALRA’) by the Malak Malak Madngele People (‘the Malak Malak’) in 1978. Relevantly, the Toohey Report concluded: firstly, that a large part of the land claimed by the Malak Malak was traditional Malak Malak land; and secondly, that certain land in the claim area, upstream of the Daly River Crossing, had traditionally been Kamu land, ‘but that the Kamu people as a group no longer existed’.
After the Toohey Report and a grant of a Land Trust under s 12 of the ALRA had been made, the Kamu disputed its findings in representations to the Northern Land Council (‘NLC’) under ss 23 and 24 of the ALRA. Consequently, the NLC established a Committee ‘to make findings and recommendations in relation to the traditional ownership of the disputed part of the land’: [7]. The Committee’s conclusions differed in significant part from the conclusions of the Toohey Report. Although the Committee arrived at substantially the same conclusions as the Toohey Report about the status of the Malak Malak, it described the Kamu as descendants of ‘a common Kamu ancestor, namely Kitty Pan Quee’.
The Committee’s report was adopted by the NLC in 2003. In this matter, the Malak Malak people sought judicial review of on twelve separate grounds including alleged errors of law and of fact by the Committee. Although the Malak Malak submissions referred to the Judiciary Act 1903 (Cth), relief was sought only under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘the ADJR Act’).
1. The Committee did not err in characterising the inquiry they were to make as a ‘dispute among countrymen’, as it identified the question to be resolved, had regard to relevant evidence, reached a conclusion, and explained that conclusion: [57], [61].
2. The Committee did not err in failing to refer only to the concept of ‘traditional Aboriginal owners’ rather than the broader category, recognised in the case law and in ss 23(1) and 71 of the ALRA, of Aboriginal people who have traditional rights in relation to land, as the dispute was about traditional ownership rights only: [64].
3. Neither the definition of ‘traditional Aboriginal owners’ in s 3(1) of the ALRA nor any other part of the ALRA will indicate that ‘there may not be more than one local descent group which can comprise the traditional Aboriginal owners of certain land’: [72]–[74], [78]. Recognition of two groups of Aboriginal owners of particular sites will not frustrate the determination or implementation of ownership rights [81], [83].
4. The requirement of commonality of spiritual affiliation in the statutory definition is one which ‘members of the local descent group must enjoy as among themselves’: [84]. Therefore, the Committee did not err in proceeding on the basis that ‘there can be more than one ‘land-owning group’ in relation to a particular area of land in circumstances where the members of both groups do not hold spiritual affiliations in common with each other’: [86], [89].
5. The Committee’s deliberations and report disclose no error of fact which is reviewable under s 5(1) of the ADJR Act: [103], [108], [110].
…
57. The Malak Malak first contended (Ground 1 in the Amended Application) that the Committee, and hence the NLC, erroneously undertook its inquiry on the basis that the dispute concerned a `dispute among countrymen’ and that resolution of the dispute `must be based upon that understanding’. Those quotes come from the passage cited in [45] above.
58. The contention was not that the Committee could not use its knowledge and expertise to determine the issues before it. They may do so: Repatriation Commission v Strickland [1990] FCA 366; (1990) 22 ALD 10; Szelagowicz v Stocker (1994) 54 IR 302 at 306. The contention was (as explained by the Malak Malak reply submissions) that the Committee’s focus on those matters was irrelevant to the task at hand.
59. The Committee’s reference to what it called a `principle’ involved firstly an understanding of Aboriginal law and practice concerning country, involving no sharp country definitional lines but sometimes a `continuity’ between neighbouring countries where responsibility for country is shared. I do not understand the Malak Malak to contend either that the Committee could not hold that general understanding as a matter of fact, or could not use that general understanding as one starting point for its consideration. It says no more than its general knowledge permits, in appropriate circumstances, areas of shared or overlapping responsibility for country.
60. The next step in the Committee’s consideration was to conclude that the Malak Malak and the Kamu are countrymen. That is an abbreviated way of expressing a conclusion on a complex finding of fact which was contentious.
61. Once it was accepted that the Committee was obliged to address the competing claims of the Malak Malak and the Kamu under the ALRA and was not bound to adopt the conclusions in the Toohey Report (in accordance with the decision of Angel J in Tapgnuk), the Committee had to determine, among other things, whether the Kamu were a `local descent group’ who had common spiritual affiliations to a site or sites in the Land Trust area. Its abbreviated expression simply reflects its findings on that matter – a matter required to be addressed by the ALRA – and its findings that, in respect of some sites, within the Land Trust area, the Malak Malak also had common spiritual affiliations to certain of the same sites. I do not consider that its approach to the question posited by the definition of `traditional Aboriginal owners’ in the ALRA was infected by some misplaced pre-conception about how that task should be carried out. The Committee has identified the correct question. It has had regard to the evidence. And it has reached a conclusion on the issue it was required to address, and explained how it came to that conclusion.
62. Although the Malak Malak did not contend that the Committee could not use its general knowledge and experience, and did not contend (subject to the first mentioned contention above, which I have rejected) that as a matter of fact there could never be shared country between Aboriginal groups at the margins of neighbouring country, they nevertheless criticised the evidence identified in the Kamu submissions that in fact there was certain shared country between the Malak Malak and the Kamu. They did so because the evidence referred to was evidence also before Justice Toohey, but had not led to a conclusion in the Toohey Report that the Kamu continued to exist as traditional Aboriginal owners of part of the Land Trust area. I do not consider that criticism demonstrates any reviewable error on the part of the Committee. There was clearly such evidence before Justice Toohey. I do not need to refer to it. But the Committee was required to come to its own conclusions, and it did so having regard not only to the evidence before Justice Toohey (and the conclusions in the Toohey Report) but also to the additional evidence which it received and to which it referred. That further evidence went to the existence of the Kamu as a local descent group, and to that group’s common spiritual affiliations with certain sites within the Land Trust area.
63. I do not accept that the Committee’s report indicates that it failed properly to apply the requirements of the ALRA and somehow strayed into `some kind of middle ground’ to accommodate the interests of each party. Nor do I accept that the passages complained of reflect that the Committee assumed that, in the case of the competing claimants which it was considering, the solution should be some form of sharing. For the reasons I have given, upon my reading of the Committee’s report, it simply recognised the questions it had to address and, having addressed them, it concluded in fact that, in respect of certain sites, the responsibility and common spiritual associations of the Malak Malak and of the Kamu overlapped.
64. It was next argued for the Malak Malak that the Committee, and hence the NLC, had wrongly focused on the concept of `traditional Aboriginal owners’ without recognising the broader category of Aboriginal people who have traditional rights in relation to land.
65. The distribution between those two categories was recognised by Brennan J in Meneling Station at 358 and 360; by Wilson and Brennan JJ in Re Toohey; Ex parte Stanton (1982) 44 ALR 94 (Stanton) at 100 and 104 respectively; and by the Full Court in Northern Land Council v Olney at 479. It emerges clearly enough from provisions of the ALRA: see e.g. ss 23(1)(b), (c) and (e), and s 71. As the contentions of the Malak Malak point out, the Committee report does not explicitly refer to that broader category.
66. However, I do not consider that the failure of the Committee to advert to that broader category involves any reviewable error on its part. The dispute between the Malak Malak and the Kamu first arose from the Toohey Report. That report addressed the identification of the traditional Aboriginal owners of the area the subject of the claim. The Kamu said that, in respect of the eastern part of the Land Trust area, they were the traditional Aboriginal owners. From that point in time, that is the position they have maintained before the NLC. The NLC constituted the Committee to inquire into the question of who, according to the ALRA, are the traditional Aboriginal owners of the disputed part of the Land Trust area.
67. There was no particular reason, in the circumstances, why the Committee should have referred expressly to such a broader category of Aboriginal people. Its reasons indicate that it understood its function, and addressed the matter into which it was constituted to inquire. There is nothing to indicate that it misunderstood the definition of `traditional Aboriginal owners’ or that it somehow elided that concept with a broader category of Aboriginal people who may have a traditional right to use or occupy the land concerned. Nor do its reasons indicate that it slipped from the idea of `countrymen’ to `traditional Aboriginal owners’ for the reasons already given. In my view, in its terms, the Committee Report indicates that it addressed the steps which it was required to address by the definition of `traditional Aboriginal owners’.
68. There were several grounds of review raised by the Malak Malak which were interlinked. The starting point of the submissions was that there cannot be more than one `land owning group’ in relation to a particular area, that is there can only be one `local descent group’ of people who comprise the traditional Aboriginal owners of any particular site or area of country.
69. That issue invites careful consideration of the definition of `traditional Aboriginal owners’ in s 3(1) of the ALRA. The Malak Malak say that the use of the singular indefinite article `a’ before `local descent group’ and then the definite article `the’ to refer to the group in subpar(a) of the definition fortifies their contention.
70. The issue has not been the subject of direct judicial determination, although Justice Toohey as the Aboriginal Land Commissioner in his Report in the Finniss River Land Claim in 1981 appears to have accepted at [100], [218], [220], [225] and [234] that there may be more than one group of traditional Aboriginal owners of a particular site or area of country. I do not consider the observations of Brennan J in Meneling Station at 356-360 support the contention of the Malak Malak. That case relevantly concerned s 50(3) of the ALRA. If anything, in my view, his Honour’s remarks at 358 suggest that there may be more than one group of traditional Aboriginal owners. His Honour said of the Aboriginal Land Commissioner’s function under s 50(1) that it requires him:
to evaluate the spiritual affiliations and spiritual responsibility of any local descent group of Aboriginals who may claim to be traditional owners of the land in question or who may appear to have a traditional claim to that land. (my emphasis)
Moreover, Meneling Station concerned the Finniss River Land Claim Report, so that such an approach by the Aboriginal Land Commissioner may have attracted some judicial comment if it were not consistent with the ALRA. It also appears that the Full Court in Northern Land Council v Olney at 490 contemplated the possibility of there being more than one local descent group each having common spiritual affiliations to a site.
71. On the other hand, Wilson J (with whom Gibbs CJ and Mason J agreed) in Stanton at 98-99, when addressing the then appellants’ complaint that their respective claims were not separately addressed on their merits, said:
It is implicit in Mr Castan’s submission that the Act contemplates that there may be more than one local descent group of Aboriginals who satisfy the description of traditional Aboriginal owners in respect of the same area of land. Such a construction of the Act would, in my opinion, be somewhat surprising, having regard to the definition of such traditional ownership, which requires the group, inter alia, to 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”. It is difficult to contemplate two opposing groups, each of whom are placed at the same time under a primary spiritual responsibility for the same site and the same land. Certainly the claimants in this case each claimed traditional ownership to the exclusion of the other. In fact, the claims were not only competing, but mutually exclusive ...
The primary submission was rejected, so that those observations are not binding. It does not appear that the particular issue was argued in that case.
72. In my judgment, there is nothing in the ALRA which indicates that, in appropriate factual circumstances, there may not be more than one local descent group which can comprise the traditional Aboriginal owners of certain land. Indeed, if it be accepted that there is not, or not always, a sharp line defining the boundaries of country between neighbouring Aboriginal groups, it would seem to follow that there is in the `overlap’ country the prospect of each of those groups having common spiritual affiliations with that country or sites within it and having a primary spiritual responsibility for those sites.
73. The definition of `traditional Aboriginal owners’ accommodates, rather than excludes, such circumstances. If it were intended that, in respect of a particular site, there would be only one group of traditional Aboriginal owners, it would have been expressed to refer to `the’ local descent group rather than `a’ local descent group. In my view, the use of the indefinite article is intended to allow for more than one such group. The use of the definite article in subpar(a) of the definition before the word `group’ is then simply a reference back to the particular local descent group or groups found to exist and require that that particular group or groups have the characteristics specified. In addition, I consider that the use of the indefinite article before the words `primary spiritual responsibility’ also recognise that there may be more than one local descent group, otherwise that part of the definition would also refer to `the’ primary responsibility so as to exclude other local descent groups in respect of a particular site. See e.g. per Mason CJ and Deane J in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 289.
74. To the extent that it is necessary, reliance for such a construction may be derived from s 23(b) of the Acts Interpretation Act 1901 (Cth) which provides for the singular to include the plural. Neither text of the definition of `traditional Aboriginal owners’, nor its context in the ALRA, indicates that a contrary intention to that construction emerges.
75. That construction is consistent with a number of reports of Aboriginal Land Commissioners under the ALRA. They are noted in Neate, Aboriginal Land Rights Law in the Northern Territory, Alternative Publishing Co-operative Ltd, Sydney, 1989 at Ch 3 fn 298. Since 1989, a number of similar reports have been made, including Justice Gray in the Jawoyn (Gimbat Area) Land Claim Report, 1995 (especially at [4.28]) and Justice Olney in the Wakaya/Alawarre Land Claim Report, 1990 (especially at [5.8]). I note, as senior counsel for the Malak Malak pointed out, both those reports concerned claimant groups who were not competing with each other. Moreover, that construction in my view is consistent with giving the ALRA a broad construction so as to give effect to the beneficial purpose for which it was intended: see e.g. R v Kearney; Ex parte Jurlama [1984] HCA 14; (1984) 158 CLR 426 at 433; and Northern Land Council v Olney at 479. It is unlikely that the ALRA was intended either to exclude altogether from the traditional ownership both local descent groups if (for example) there were found to be two local descent groups each with the specified characteristics in relation to a particular site, or alternatively to force a decision between competing local descent groups on some unspecified basis when reach was found to have the specified characteristics in relation to a particular site.
76. The alternative contention of the Malak Malak was that the Committee erred in proceeding on the basis that there can be more than one land-owning group in relation to a particular part of country or a particular site in circumstances where each group claimed traditional Aboriginal ownership to the exclusion of the other.
77. I do not think that Stanton, upon which the Malak Malak rely, necessarily supports the contention. I have referred above to the relevant passage from the judgment of Wilson J (with whom Gibbs CJ and Mason J agreed). Reliance was also placed on the observations of Brennan J at 104 where his Honour said:
Thirdly, it is submitted that the Commissioner ought to have ascertained whether the Maranunggu people on the one hand and the Kungarakany and Warai peoples on the other were all traditional Aboriginal owners of area 1 and part of area 2. Clearly enough, the facts upon which the two groups respectively relied were inconsistent with both groups being the traditional Aboriginal owners. The Commissioner noted that each of the two groups was asserting, to the exclusion of the other, traditional ownership of the land ... He found in favour of the Maranunggu claim. The Commissioner explicitly rejected the Kungarakany claim in respect of area 1 (para 192) and area 2 (para 207). There is no substance in this ground.
78. It is apparent his Honour concluded that the relevant finding of the Aboriginal Land Commissioner that one of the competing groups was the traditional Aboriginal owners of the particular country in dispute was not infected with reviewable error. I do not think it excludes the possibility of there being two groups of traditional Aboriginal owners, or that in all circumstances where there are competing groups making exclusive claims there cannot as a matter of law be found to be two groups of traditional Aboriginal owners.
79. The so called exclusive claims of the Malak Malak and the Kamu in relation to particular sites in the Land Trust area must be seen in context. Although they were competing claims, the findings in the Toohey Report indicate that the basis of the Malak Malak claim to ownership of certain sites was passed on by Mrs Pan Quee on behalf of the Kamu. This is not a case where it had been found that the Kamu at no point in time had ownership of any of the disputed areas.
80. The NLC was required to fulfil its role under the ALRA, and established the Committee for the better performance of that function. The Committee concluded differently from the Toohey Report, that the Kamu continued to exist as a local descent group. It was then required to determine whether the Malak Malak or the Kamu or both satisfied the characteristics in the definition of `traditional Aboriginal owners’. There is nothing which, as a matter of law, obliged the Committee then to ignore its findings (which were positive in respect of the shared sites in the case of both the Malak Malak and the Kamu), or to find one or other group had a greater `primary spiritual responsibility’ than the other, or in some other way to conclude that -- despite both groups satisfying the definition in respect of particular sites -- one or other or neither of them should be so recognised. The consequences of their respective recognition as traditional Aboriginal owners in respect of particular sites is then simply governed by other provisions of the ALRA.
81. I do not accept that, by recognising two groups of traditional Aboriginal owners of particular sites, the determination of rights or their implementation would be frustrated. The NLC has certain consultation obligations with traditional Aboriginal owners, and with other Aboriginal persons in certain circumstances. The fact that the consent of the traditional Aboriginal owners is also required in respect of some proposed decisions (e.g. under ss 19(5)(a) and 46(6)) will not be impeded, although practically it may be more difficult. In respect of any groups of traditional Aboriginal owners, s 77A provides how the consent may be taken to have been given in the case of intra-group disputes. But if as a fact (as here found) there are in respect of a particular site two groups of traditional Aboriginal owners, then the consent of each group will need to be obtained where such consent is required by the Act. That is, in my view, consistent with the beneficial purposes of the Act as it gives each of the groups of traditional Aboriginal owners the `ownership’ or control of decision-making through the processes the ALRA contemplates.
82. Senior counsel for the Malak Malak pointed to a number of reports of Aboriginal Land Commissioners where the Commissioner has decided which of competing claim groups are the traditional Aboriginal owners of particular sites or country, including the report of Justice Gray in the Kenbi (Cox Peninsula) Land Claim, No 37 Report, December 2000. In my view, those decisions reflect no more than decisions on the particular facts. It will generally be true that, in the case of competing claim groups, one or other of them will be found to be the traditional Aboriginal owners of the disputed site or country. In some cases, there may be a finding that neither competing group has that status. In some cases, as here, there may be a finding that both groups have that status.
83. Once it is accepted that, as a matter of law, there may be two groups of persons who are each traditional Aboriginal owners of particular sites or country, the fact that there are competing groups making mutually exclusive claims is simply a matter the decision-maker must take into account. It doe not follow that the decision-maker, having taken all relevant material into account, will err in a reviewable way if both groups are found to be traditional Aboriginal owners. As the Full Court in Northern Land Council v Olney said at 487:
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.
84. The Malak Malak point out that the statutory definition of `traditional Aboriginal owners’ refers to `common’ spiritual affiliations to a site on the relevant country. That requirement of commonality is one which the members of a local descent group must enjoy as among themselves. It is not a requirement that, in the case of there being more than one local descent group, all the members of each local descent group must collectively enjoy commonality of spiritual affiliations. It is plain that subpar (a) of the definition prescribes a particular characteristic for a local descent group.
85. As I have indicated, the definition of `traditional Aboriginal owners’ is satisfied only if the group of Aboriginals who comprise a local descent group have `common spiritual affiliations’ to a site on the land. That requirement was explained by the Full Court in Northern Land Council v Olney at 485-488. It is clearly a requirement, or characteristic, which a local descent group must satisfy before it comes within the definition. Where a local descent group has that characteristic in relation to a site on the land (and also satisfies the other elements of the definition) it will qualify as traditional Aboriginal owners in relation to that land. If there are two local descent groups who so qualify, by the application of the statute, they each enjoy that status in relation to that land. There is no requirement in the definition that the members of each such group must then be found collectively to have `common spiritual affiliations’ with that land. It therefore is not to the point, in my view, at least in relation to this contention, that there are examples where the Malak Malak and the Kamu gave different evidence as to the nature of their respective common spiritual affiliations with particular sites such as Jebenyi or Ngulukmoenet/Kabamal or the area of Mt Hayward called Wani Alawun by the Malak Malak and Ngalyuwuy by the Kamu.
86. Those observations indicate why I also do not accept the further contention of the Malak Malak that the Committee erred in proceeding on the basis that there can be more than one `land-owning group’ in relation to a particular area of land in circumstances where the members of both groups do not hold spiritual affiliations in common with each other.
87. It is also convenient at this point to address a subsidiary contention of the Malak Malak that the Committee erred by not addressing the existence or otherwise of the common spiritual affiliations of the Kamu local descent group in the manner required. The pithy contention was that the Committee `made findings about the spiritual affiliations of each group rather than about those of their members’.
88. The approach to that aspect of fact finding was described by the Full Court in Northern Land Council v Olney at 487-488 as follows:
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.
89. In my view, the Committee is not shown to have departed from the proper decision-making process or to have misunderstood its task. In accordance with what the Full Court then went on to indicate at 488, the Committee recognised that the common spiritual affiliations have to be possessed by the individuals who comprise the group. I do not read [100] of the Committee Report as indicating any departure from that process. Its decision was based upon the evidence of individual members of the Kamu, given at a number of sites. It clearly recognised that the Kamu comprise a number of individuals who are descendants of Mrs Pan Quee. In my view, its focus when making its findings on this aspect was properly upon the Aboriginals who comprise the Kamu local descent group which it found to exist.
90. The next two submissions of the Malak Malak can conveniently be dealt with together. They contended that the Committee erred in holding that both the Malak Malak and the Kamu hold `joint primary spiritual responsibility’ for the shared sites. And they contended that it erred in finding that the shared sites identify a `shared area’ or zone between the country of the Kamu and the country of the Malak Malak which is an area `to which both groups have shared responsibilities and interests’.
91. The particular attack was upon [100] of the Committee Report (extracted above in part) which reads:
The committee accepts that these spiritual affiliations of each group place the members of each group under a spiritual responsibility to care for the sites, maintain knowledge of the significance of the sites and to act appropriately with respect to the sites. The committee did not consider that the responsibility of one group with respect to these sites was greater or of more importance than the responsibility of the other group in respect of the sites. In other words, the responsibility of one group did not have any primacy over the responsibility of the other group. Accordingly, the committee finds that both the Malak Malak group and the Kamu group have common spiritual affiliations to these sites which place them under a primary spiritual responsibility for the sites and for the land in the general vicinity.
92. In part, in my view, the contentions of the Malak Malak are a consequence of too critical a reading of the Committee Report. Its meaning is plain enough, particularly when seen in context. The Committee had decided that both the Malak Malak and the Kamu were local descent groups who each had common spiritual affiliations to particular sites. It had to decide whether each of their separate spiritual affiliations in respect of each site gave that group `a primary spiritual responsibility’ for that site. It made a finding about the nature of that spiritual responsibility, and that the nature of that spiritual responsibility in each instance was `a primary spiritual responsibility’ for each of the relevant sites. In the course of that unexceptionable process of consideration of the elements of the definition, the Committee recognised that the responsibility of one group in relation to a particular site might be such as to inform its conclusion about whether the spiritual affiliations of the other group to the land might also be such as to amount to `a primary spiritual responsibility’ for it. I do not consider that was an inappropriate consideration. It was a means of taking into account all the evidence, and not simply the evidence of the particular group, as to the nature of the spiritual affiliations of each group. It then concluded, as it was entitled to do as a matter of law, that the separate spiritual affiliations of each group gave each group a primary spiritual responsibility for those sites.
93. I reject the contentions that the use of the words `the members of each group’ in the first sentence extracted above indicates the Committee wrongly failed to focus on the particular group; that the use of the word `responsibility’ in the second sentence indicates the Committee wrongly failed to recognise it was to consider spiritual responsibility; and that the Committee was not addressing the definition of `traditional Aboriginal owners’ but was trying to resolve the dispute between the Malak Malak and the Kamu in relation to those sites in a way not mandated by the ALRA. The reference to a `joint’ primary spiritual responsibility in respect of those particular sites which the Committee remarked upon in its summary of its findings is but a manner of describing those detailed factual findings made in terms of the definition of `traditional Aboriginal owners’.
94. The second part of the Malak Malak contentions referred to above, regarding the identification of a `shared area’ or zone, was described in their written submissions as `dependent upon’ those concerning the matter I have first addressed. For the same reasons, I do not accept the contentions. The conclusion that the Malak Malak and the Kamu have shared common spiritual affiliations with a primary responsibility for certain sites is simply the practical consequence of its consideration of the respective claims of each of them in the terms required by the relevant definition.
95. The balance of the Malak Malak contentions involve a more immediate attack upon factual findings of the Committee adopted by the NLC, including in some respects adopting the `no evidence’ ground of review available under s 5(1)(h) of the ADJR Act. In approaching these grounds, I have borne in mind the explanation of Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 358-359 as to the interaction of subs 5(1)(e), (f) and (h) of the ADJR Act. I have also borne in mind that the High Court said in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 per Mason J at 39-41 about the scope of the grounds of review under subs 5(1)(e) and (2)(a) and (b) of the ADJR Act.
96. These contentions challenge the findings that the Kamu have:
97. The Malak Malak as a starting point refer to the facts, as the Committee found, that they have continued to reside upon and interrelate with the Land Trust land whereas for many years the Kamu did not do so and more recently have done so but in a less intense way. Justice Gray in the Kenbi (Cox Peninsula) Land Claim Report (referred to above) at [5.3.10] pointed out that applying the definition of `traditional Aboriginal owners’ to a particular claimant group is more readily done in the case of persons who are:
... embedded within a society in which substantial bodies of knowledge are held by senior people, in which knowledge is held by others to an extent commensurate with age and status, and in which such knowledge is reinforced regularly by practices such as the conduct of ceremonies.
98. The Committee’s findings concerning the site Jigirij were stated at [60].
99. The Malak Malak submissions emphasise that there was only evidence from one Kamu person, Francis Storer, about a willy wagtail dreaming which might support a spiritual affiliation with that site, and that the Committee did not have regard to the facts that the site Jigirij was not mentioned by name during the hearing before Justice Toohey (including that it was not referred to by Dr Rose, the anthropologist retained by the Kamu for the Committee hearing, in her first report); and that during the hearing before Justice Toohey, Mrs Pan Quee referred to the willy wagtail dreaming as also having a Malak Malak name; and that two other Malak Malak persons identified a wagtail dreaming as related to another place.
100. Hence, it was contended, the Committee’s findings were so unreasonable that no reasonable person could have so exercised its power in that way in relation to that site. There were other ways of expressing the contention in terms of other subsections of s 5(1) of the ADJR Act, but the point remained in essence the same.
101. Mr Storer’s evidence about the site, and the willy wagtail dreaming, was quite detailed. He identified the location of the site. The Kamu asserted it was the same site as one about which Mrs Pan Quee gave evidence before Justice Toohey. I was taken to the evidence and to the maps, as counsel for the Malak Malak suggested that the two locations were significantly different, but I did not perceive that to be the case. In the Toohey Report, the site of Jigirij was identified as being the area his Honour described as originally Kamu country. Dr Rose in her 1993 report identified the site as a Kamu site, in part upon the information of Elsie O’Brien, also a Kamu person, and she referred to it by name in her subsequent report of 2002. Mrs O’Brien’s evidence to Justice Toohey was also to that effect.
102. There is sometimes a fine line between a rational finding based upon evidence, and one which is either not supported by evidence at all or by evidence which rationally cannot support the finding. That is a matter for judgment in all the circumstances.
103. In respect of the site Jigirij, I am not persuaded that the Committee’s findings involve reviewable error under the ADJR Act. I think there was evidence which could rationally support its conclusions. It had the benefit of seeing and hearing all the evidence, in particular the evidence of Mr Storer taken at the site. It had regard to the evidence before Justice Toohey and the findings in the Toohey Report. It is not shown to have misapprehended any evidence, or to have attributed to it a significance which it was not rationally capable of bearing. It is not my function to reconsider all the relevant evidence on a topic to see if I would have come to a different view of the facts: see per Gleeson CJ in Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32; (2002) 210 CLR 222 at [26]. It is my function to determine, in respect of contentions such as those referred to above, whether the Committee erred in a way which s 5(1) of the ADJR Act identifies as reviewable error. In my judgment, it did not.
104. The further contentions attacked the factual findings of the Committee, adopted by the NLC, that the Kamu have common spiritual affiliations to the sites Jebenyi, Ngulukmoenet and Kabamal, the Mt Hayward area in particular Wani-Alawun or Ngalyuwuy, or Jigirij.
105. Again, the parties’ submissions have referred to the paucity (in the case of the Malak Malak) or the adequacy (in the case of the Kamu) of the evidence available to support the Committee’s findings as well as evidence from Malak Malak persons about the relationship of the Malak Malak to those sites. In some instances, the Malak Malak evidence was not referred to by the Committee in its reasons, although of course (with the exception of the sites in respect of which only the Kamu were found to have common spiritual affiliations) the Committee concluded that they were traditional Aboriginal owners in respect of those sites.
106. I do not intend to rehearse the detailed evidence in relation to each of those sites. It is correct that the Committee’s references to the evidence are not extensive, and its exposed process of reasoning thereby, before expressing its conclusions, relatively brief. That is so in respect of its conclusions about the status of the Malak Malak in relation to particular sites and country as well as in respect of its conclusions about the status of the Kamu in relation to particular sites and country.
107. I have considered all the evidentiary references to which my attention was drawn, as well as the extent to which evidence was or was not given about those sites during the hearing before Justice Toohey, and the findings in the Toohey Report. I have done so not to form my own view about the facts to which that material or the submissions were directed, but to identify whether the Committee’s impugned findings involve reviewable error on its part. I intend no discourtesy to the detailed and helpful submissions in not now reciting all of that material.
108. I have concluded that no reviewable error on the part of the Committee, and hence of the NLC, is made out. In my view, the Malak Malak contentions did not ultimately rise above an attack upon the merits of the factual conclusions of the Committee.
109. As I have said, there is sometimes a fine line to draw between such an attack and one which extends over that line into reviewable error. I do not consider that the Committee’s conclusions so transgressed. Its conclusions had an evidentiary base, including the benefit it had of seeing and hearing the oral evidence at certain sites. That evidentiary base was rationally capable of sustaining the conclusions it reached. Its failure to refer to particular evidence, including certain evidence given to Justice Toohey, or to refer in this section of its findings to the findings in the Toohey Report, does not indicate that it did not have regard to that material. Its analysis of all the evidence in its Report is quite brief, both in respect of findings made in favour of the Malak Malak and those made in favour of the Kamu. As I have said, I do not regard that as indicating a failure to have regard to all the relevant material. Indeed, the overall tenor of the Committee Report indicates that it undertook its task assiduously and conscientiously.
110. It is necessary to refer briefly to two other contentions on behalf of the Malak Malak, simply to indicate that I have not overlooked them. They concern the Committee’s failure to expressly refer to particular evidence given by Mrs Pan Quee, Mrs O’Brien, and two old and knowledgeable Malak Malak men to Justice Toohey, and in the case of the two old men by video taken in about 1993. I do not consider that the fact that the Committee did not expressly refer to that material, or the map prepared by Dr McWilliam in reliance on it, in the Committee Report indicates that it did not consider that material. Although its analysis of the evidence is quite brief, it does not follow that it did not have regard to evidence which it did not expressly mention. It is clear that the Committee gave particular weight to the contemporary oral evidence. It was entitled to do so. The weight it gave to other evidence was a matter for the Committee. There was, as senior counsel for the Kamu pointed out, other evidence which supported the findings of the Committee and upon which it could rationally have relied.
111. For those reasons, I am not persuaded that the Committee Report, or the NLC decision which adopted it, involved any reviewable error.
112. Accordingly, the application must be dismissed.
113. I will hear the parties as to costs, in particular as to the costs of the NLC.
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/2006/68.html