Neate, Graham --- "Town Planning Regulations: Kenbi Aboriginal Land Claim" [1989] AboriginalLawB 10; (1989) 1(36) Aboriginal Law Bulletin 16

• Town Planning Regulations: Kenbi Aboriginal Land Claim
• The Decision
• The Facts
• The Issue
• Reasons For Decision
• Conclusion

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Town Planning Regulations: Kenbi Aboriginal Land Claim

Casenote by Graham Neate

The Decision

In a decision delivered on 8 December 1988, the Aboriginal Land Commissioner (Mr Justice Olney) concluded that the Town Planning Regulations made by the Administrator of the Northern Territory in December 1978 were not a valid exercise of the regulation making power conferred by the then Town Planning Act. Consequently, the Cox Peninsula land, which is part of the Kenbi land claim made under the Aboriginal Land Rights (Northern Territory) Act 1976 (the "Land Rights Act") on 20 March 1979 was not, at that time, land in a "town" within the meaning of that term in the Land Rights Act. Therefore the land was not excluded from the scope of the definition of "unalienated Crown land".

The Aboriginal Land Commissioner can proceed to hear the claim made on behalf of people claiming to be the traditional Aboriginal owners of that land nearly ten years after the claim was lodged.

The Facts

The order of events in which the matter in issue arose can be summarised as follows:

• 26 January 1977 - the Land Rights Act commenced to operate, allowing traditional land claims to be made to "unalienated Crown land" (defined to exclude land in a "town");
• On 23 December 1976 - the Northern Land Council (NLC) wrote to the Interim Aboriginal Land Commissioner, and on 26 September 1977 and 14 March 1978 to the Lands Branch of the Northern Territory, foreshadowing that claims would be made to vacant Crown land on Cox Peninsula and surrounding islands and requesting that such land not be alienated until the claim was determined by the Aboriginal Land Commissioner;
• 29 June 1978 - the NLC, on behalf of Aboriginals claiming to have a traditional land claim to Dum-In-Mirrie Island, lodged with the Aboriginal Land Commissioner a claim pursuant to section 50(l)(a) of the Land Rights Act;
• 22 December 1978 - the Administrator of the Northern Territory made Town Planning Regulations pursuant to the Town Planning Act 1964 which, among other things, treated land on the Cox Peninsula as land within the town of Darwin;
• 29 December 1978 - notice was given in the Northern Territory Government Gazette of the making of the Regulations;
• 20 March 1979 - the NLC, on behalf of Aboriginals claiming to have a traditional land claim to vacant Crown land on Cox Peninsula and surrounding islands, lodged with the Aboriginal Land Commissioner a claim pursuant to section 50(1)(a) of the Land Rights Act.

The Issue

The issue before the Aboriginal Land Commissioner was whether land claimed on 20 March 1979 is available for claim as "unalienated Crown land" within the meaning of the Land Rights Act. The Act excludes from "unalienated Crown land" land in a "town". "Town" is defined to have:

The same meaning as in the law of the Northern Territory relating to the planning and developing of towns and the use of land in or near towns, and includes an area that, by virtue of regulations in force under that law, is to be treated as a town.

The regulations made in December 1978 pursuant to the Town Planning Act 1964 purported to have the effect of treating the Cox Peninsula land (which became part of the Kenbi land claim) as land within the town of Darwin. Schedule 1 of the regulations described four areas, each with a common boundary with a town to which it was said to be adjacent. The towns referred to were Darwin (4,350 square kilometres), Alice Springs (295 square kilometres), Tennant Creek (710 square kilometres) and Katherine (4,690 square kilometres).

At early hearings in connection with the Kenbi land claim, the NLC challenged the validity of the regulations insofar as they affected that land claim. In 1981 the High Court held that the Aboriginal Land Commissioner could examine the purpose for which the regulations were made in order to determine whether they were valid. (R v Toohey; ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170).

Reasons for Decision

Numerous judicial decisions on town planning and related matters were cited in argument by counsel before the Commissioner. His Honour, however, avoided expressing his finding as to the purpose of the town planning regulations in terms of the various tests adopted in those cases. In his view, the "facts of this case and the rather unique legislative framework in which they arise renders unsatisfactory the application of principles derived in quite different circumstances." Instead, he confined his analysis to the tests laid down by the High Court in R v Toohey; ex part e Northern Land Council.

His Honour wrote:

The issue for me to decide is whether the Town Planning Regulations made by the Administrator ... were:

• in fact designed to defeat the traditional land claim of the Aboriginals (per Gibbs CJ);
• made for a purpose wholly alien to the (Town) Planning Act (per Stephen J);
• made for an extraneous purpose (Mason J);
• made for purposes or with intentions which are irrelevant to the proper exercise of power or contrary to the purposes of the grant of power (Aickin);
• made for the ulterior purpose of placing the Cox Peninsula beyond the reach of a land rights claim (Wilson J).

This exercise requires first an understanding of the true or proper purpose of the Town Planning Act and second a finding, based upon the evidence, as to whether the purpose for which the Town Planning regulations was made fits the foregoing descriptions. The onus of proof that the regulations were made for an unauthorised person lies on the NLC. (Gibbs CJ p.193)

In his opinion, the objective facts did not speak for themselves. Neither the fact that the Town Planning Regulations were made at a time when a land claim had been foreshadowed, nor the extent of the area of land included in the Darwin regulation area, entitled one to draw an inference of ulterior motive.

In looking to the evidence to determine if facts have been proved which would give rise to the inference that there was an ulterior purpose, His Honour accepted that it is "the subjective intention of the members of the executive government rather than the intention of the public servants charged with the responsibility of advising the government, and implementing its decisions, to which regard must be had." That was not to say, however, that what was done and said by public officials was completely irrelevant. "It may well be that the conduct of public officials will provide some evidence to indicate the state of mind of the relevant minister".

Mr Justice Olney paid particular attention to a ministerial briefing (headed "Protection of Urban Environs Against Claims Under the Aboriginal Land Rights (NT) Act") which recommended the preparation of regulations under the Town Planning Act, and to a request to the legislative draftsman to prepare those regulations. Each document was signed by Mr Marshall Perron (then the Minister for Lands and Housing) on 30 November 1978.

Mr Justice Olney wrote:

Without any further explanation and viewing the documents in isolation, Mr Perron's approval of the ministerial ... and his acceptance of the recommendation ... gives rise to a strong inference that as at 30 November 1978 when the machinery for the making of the Town Planning Regulation was put into motion, it was used to prevent any further Aboriginal land claims being made to land, as yet unidentified, outside but generally adjacent to the proclaimed boundaries of the towns of Darwin, Alice Springs, Tennant Creek and Katherine.

From the evidence of Mr Persons and others, it was clear that he had previously been interested in the long term future planning of the Darwin region and that the prospect of an Aboriginal land claim had precipitated the making of the town planning regulations.

Mr Justice Olney decided that there was never any intention that a town planning scheme under the Town Planning Act be adopted or even proposed, for the Darwin regulation area. Rather, what seems to have been under contemplation was something in the nature of a regional plan, and no-one had suggested that such a plan could fit the description of a town planning scheme. Indeed, his Honour noted, it was the unsuitability of the Town Planning Act to facilitate that type of planning in that and other similar areas which was one of the reasons for requiring new planning legislation. (The Town Planning Act was replaced by the Planning Act in 1979.)

His Honour found on the evidence "that the regulations were planned and implemented, from start to finish, to ensure that no Aboriginal land claim could be made to the areas specified. That was the sole reason for making the regulations. The question of planning controls had to abide the passing of the new legislation."

Mr Perron's evidence made it clear that what he had in mind was a rural plan and not a town planning scheme. He was aware that the Town Planning Act was an inappropriate vehicle for implementing such a plan. Although there was evidence that planning considerations were involved, his Honour could not accept that the regulations were made for the purpose of carrying out or giving effect to the Town Planning Act. Rather, the regulations were made in an attempt to ensure that the authority of the Northern Territory legislature and executive government over the Darwin regulation area would not be diminished or otherwise inhibited by the making of an Aboriginal land claim in respect of that land. And whether the test be expressed in terms of an improper or ulterior purpose or a purpose entirely alien to the legislation under which the regulations were made, the result must be the same.

Mr Justice Olney said that one of the more troublesome factors of the case was that, on the evidence, it appeared that the drawing of the boundary for the Darwin regulation area was left entirely to a senior public servant without any directions being given by the Minister.

Other evidence was given by Mr Paul Everingham (then the Chief Minister of the Northern Territory, Attorney-General and Minister having responsibility in Aboriginal affairs; during Mr Perron s absence from Darwin between 30 November 1978 and 21 December 1978 he was also acting Minister for Lands and Housing), Mr Jim Robertson (then Minister for Community Development and Education) and Mr Roger Steele (then Minister for Industrial Development and Transport and Works).

His Honour reviewed their evidence in relation to the "Cabinet decision, made under a Westminster system of government, to recommend to the Administrator in Executive Council the making of regulations under a statute falling under the administrative control of the Minister for Lands and Housing".

He said that the "reality of the situation is ... that when a minister brings forward a technical matter within his own portfolio, unless there is some extraordinary reason for doubting it, the other ministers would tend to accept that it was proper." There was, in his opinion, a "very strong inference to be drawn" that the other members of the Cabinet were "content to adopt the regulations without question and that therefore the only purpose proved is that of Mr Perron". In any event, on the evidence he found that at least three members of the Cabinet were motivated by a purpose other than the carrying out or giving effect to the Town Planning Act.

Conclusion

Mr Justice Olney concluded that the Town Planning Regulations were not a valid exercise of the regulation making power conferred by section 73 of the then Town Planning Act. It follows that the land described as Cox Peninsula, which forms part of the Kenbi land claim, was not, at the time the claim was lodged with the Aboriginal Land Commissioner, land in a "town" within the meaning of the Land Rights Act and was not excluded from the scope of the definition of "unalienated Crown land".

It is not known whether the Northern Territory will seek a review of this decision by the Federal Court.