Beacroft, Laura --- "Attorney-General for the Northern Territory v Minister for Aboriginal Affairs, George Brown Jungarrayi and Lawrence Kelly Jakamarra" [1986] AboriginalLawB 52; (1986) 1(22) Aboriginal Law Bulletin 6

• Attorney-General For The Northern Territory V Minister For Aboriginal Affairs, George Brown Jungarrayi And Lawrence Kelly Jakamarra
• In The Matter Of Keytej; Walpiri And Warlmanpa Land Claim, And Warlmanpa, Mudbura, Walpiri And Waramungu Land Claim

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Attorney-General for the Northern Territory v Minister for Aboriginal Affairs, George Brown Jungarrayi and Lawrence Kelly Jakamarra

In the matter of Keytej; Walpiri and Warlmanpa Land Claim, and Warlmanpa, Mudbura, Walpiri and Waramungu Land Claim

Federal Court of Australia (NSW District), Wilcox J

13 August 1986

Casenote by Laura Beacroft

In the matter of Kaytej; Walpiri and Warlmanpa Land Claim, and the Warlmanpa, Mudbura, Walpiri and Warumungu Land Claim.

The Kaytej, Warlpiri and Warlmanpa Land Claim ('Kaytej Claim') involves 14,400 sq. kms of unalienated crown land south west of Tennant Creek. (See [1983] 11; 1(7)pg14). The Warlmanpa, Warlpiri, Mudura and Waramungu Land Claim ('Warlmanpa Claim') involves 50,000 sq. kms of unalienated crown land north west of Alice Springs ([1982] AboriginalLB 72; 1(22)pg14). Toohey J recommended that there be a grant of both claims under the Aboriginal Land Rights (NT) Act 1976 (NT) (the Act). In his report to the Minister for Aboriginal Affairs, Mr Holding, he raised the matter of the Water Control Districts occupying part of each claim (since constituted as the Tennant Creek Water Control District under the Controls of WaterAct (NT)).

Toohey J commented: 'To the extent that the town and adjacent areas are dependent upon water, it is important that some arrangement be made guaranteeing the supply of water in the event that the land becomes Aboriginal land'.

Mr Holding accepted the report prepared by Toohey J, and notified the NT government of this. Some time later he informed the NT Attorney General that title would not be granted for either claim until the NT had had sufficient time to settle the details of an agreement on the supply of water. After 9 months no such agreement had been negotiated. Mr Holding then notified the AG of the NT (Mr Tuxworth) that both the Warlmanpa & Katyej land claims, including the Tennant Creek Water Control District would be granted. Mr Tuxworth sought administrative review of the Minister's decision.

Wilcox J of the Federal Court concluded that a decision to execute deeds of grant in favour of traditional owners (s12(1) of the Act) is reviewable under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act). A decision made under S21(1) of the Act is made by the Governor General in Council with the Minister of Aboriginal Affairs, and is therefore deemed to be a decision to which the ADJR Act applies (S3(3)).

Wilcox J based his conclusion on comments (obiter dicta) made in Re Kearney: exparte Northern Land Council (1980) 52 ALR 1 at p. 5 and Minister for Aboriginal Affairs v Peko-Wallsend, HC of A 13 July, 1986, unreported. He distinguished Thongcha v VAG Full Ct of Fed Ct, 17 May 1986. The relevant provision in that case, S19A Crimes Act, is excluded from review because the advice of the AG is only a part of the final decision (albeit an essential part), whereas S12 of the Act is an enactment for the making of a recommendation before a decision is made. Wilcox J also cited the 2nd reading speech on the ADJR Act in support of the application of that Act to S12 decisions.

On reviewing Mr Holding's decision, Wilcox J found no grounds for overturning it. The disputed letter sent by Mr Holding to Mr Tuxworth did not state all matters relevant to the decision because it was not intended to be a formal statement of grounds. Other matters raised by Mr Holding in that letter, although irrelevant to a decision under SS11, 12 of the Act, were not crucial to his decision, i.e. Minister encouraging negotiations on water supply before title granted, referring to proposed Commonwealth legislation, alleged political motives of Mr Tuxworth, and difficulties of retrospectively altering the Commonwealth government's policy on grants of land used for public purposes such as water districts.