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Ex Parte Northern Land Council
Re Kearney
Re Kearney:
Ex Parte Dick Riley Japanagka
Re Kearney:
Ex Parte Donald Nangkayarri Jurlama
High Court of Australia
23 March 1984
Casenote by Garth Nettheim
On 23 March, 1984, the High Court of Australia handed down three important decisions on the Aboriginal Land Rights (Northern Territory) Act, 1976 (Cth.). The cases are reported at (1984) 58 A.L.J. 218, 231 and 243; (1984) 52 A.L.R. 1, 24 and 31.
After the Jawoyn (Katherine area) Aboriginal land claim had been lodged, the land in question was incorporated as part of the town of Katherine by virtue of regulations made under the Planning Act, 1979 (N.T.). The Aboriginal Land Commissioner accordingly held that the land ceased to be claimable as "unalienated Crown land" by virtue of section 3(1) of the Aboriginal Land Rights. The NLC successfully challenged this ruling in proceedings for mandamus to require the Commissioner to proceed with consideration of the claim.
The High Court held unanimously that the mere lodging of an Aboriginal land claim to unalienated Crown land does not impose a "freeze" so as to prevent the Northern Territory government from changing the status of that land by alienating it or by making it part of a town. But, according to the majority (Gibbs C.J., Murphy, Brennan and Deane JJ; (Wilson J. dissenting) if the land was unalienated Crown land at the time that claim was lodged, any subsequent change in its status would have no effect on the jurisdiction of the Aboriginal Land Commissioner to consider the claim. The Commissioner was ordered to exercise his powers in relation to the areas of land in question.
In this case, too, the Aboriginal Land Commissioner had ruled that he had no jurisdiction to proceed with the Warramungu/Alyawarra land claim in regard to areas of land near Tennant Creek. His main reason was that, after the claim had been lodged and, indeed, after he had commenced his inquiry, the N.T. Minister for Lands had granted leases in perpetuity of the areas in dispute to the Northern Territory Development Land Corporation. Gibbs C.J. and Murphy J. held in accordance with Re Kearney, Ex Parte Northern Land Council, that the granting of these leases did not affect the Commissioner's jurisdiction to hear the claim. Brennan J. went further and decided that the lodging of an Aboriginal land claim had the legal effect of preventing any valid grant by the N.T. government of a lease over land the subject of a claim; Deane J. agreed with him, but added that some leases or interests might validly be created over claimed land if the effect of such leases or interests would not be such as to impede the operation of the Land Rights Act. Wilson J. dissented.
Another issue concerned the status of the areas in dispute at the time the land claim was lodged. They had been set apart, formally or informally, for use as reserves of various kinds, particularly as stock routes, stock reserves and water conservation reserves under Territory legislation. The argument was that they ceased, thereby, to be claimable as "Crown land" which the Land Rights Act s.3(l) defines to exclude "land set apart for, or dedicated to, a public purpose under the Lands Acquisition Act 1955 or under any other Act ...". Gibbs C.J., Murphy and Wilson JJ. rejected the argument, holding that the reference to "land set apart ... under. .. any other Act" was a reference to action taken directly under Commonwealth Acts, not Territory legislation.
However, Gibbs CJ, Brennan and Wilson JJ held that there was no jurisdiction for the claim to proceed in regard to the"Devil's Marbles Conservation Reserve". This had been vested in the N.T. Conservation Land Corporation before it had been claimed under the Land Rights Act, the Corporation was not the Crown, so therefore that land was not "unalienated Crown Land" so as to be claimable. Subject to that qualification the Commissioner was ordered to proceed with the land claim.
This case concerned that portion of a land claim made by one of the twelve local descent groups (Group 11) of the Gurindji people. Most of the traditional country of Group 11 and all the relevant sites lay outside the claim area because it was pastoral leasehold land and not claimable under the Land Rights Act. The Aboriginal Land Commissioner held, therefore, that Group 11 could not be regarded as traditional owners of the portion of land inclued in the Gurindji claim. According to Gibbs CJ the issue was
" ..whether the claimants, to be entitled to apply under s.50( I )la), must be the traditional Aboriginal owners of the land in respect of which the claim is made, in the sense that there must be sites on that land, or whether it is enough that they are the traditional owners of a larger area of which the land the subject of the claim forms part."
The Chief Justice accepted the second view of the matter.
It is enough that the Aboriginals are the traditional Aboriginal owners of the land claimed, because it forms part of a larger area of which they are, without a doubt, the traditional Aboriginal owners. If the section is ambiguous it should in my opinion by given a broad construction, so as to effectuate the beneficial purpose which it is intended to serve.
Murphy, Brennan, Deane and Dawson JJ. agreed.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1984/12.html