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Editors --- "Risk v Northern Territory - Case Summary" [2001] AUIndigLawRpr 15; (2001) 6(2) Australian Indigenous Law Reporter 19

Court and Tribunal Decisions – Australia

Risk v Northern Territory

Federal Court of Australia (French, Keifel and Merkel JJ)

8 December 2000

(2000) 105 FCR 109; (2000) 180 ALR 705; [2000] FCA 1779

Land rights — Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) — claimable land — whether seabeds of bays and gulfs unalienated Crown land — meaning of ‘land’

Facts:

In May 1997, pursuant to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (Land Rights Act), the applicant lodged a claim to land located on the seabed of Beagle Gulf and part of Van Dieman Gulf. These gulfs (including bays along the coastline therein) are located between the mainland of the Northern Territory and Bathurst and Melville Islands.

Under the Land Rights Act claims may be made to ‘unalienated Crown land’ located in the Northern Territory. At first instance the Aboriginal Land Commissioner, Olney J, determined as a preliminary issue that land located on the seabed seaward of the low water mark is not land that may properly be the subject of an application pursuant to s 50 of the Land Rights Act.

The applicant sought judicial review of the determination under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and under s 39B of the Judiciary Act 1903 (Cth).

Held:

1. Per French and Keifel JJ, Merkel J dissenting: The application for judicial review was dismissed: to define ‘land’ in s 50 as covering the seabed of bays and gulfs within the limits of the Northern Territory would be to artificially extend both the ordinary and ordinary legal meaning of the word.

2. Per French and Keifel JJ, Merkel J contra: The legislative history of the Land Rights Act shows a legislative intention to exclude the seabed below the low water mark from the operation of the Land Rights Act.

3. Per French and Keifel JJ: The definition of ‘land’ in s 22(1) of the Acts Interpretations Act 1901 (Cth) does not limit the definition of ‘land’ in the Land Rights Act because it is inclusive: Goldsworth Mining Ltd v Commissioner of Taxation [1975] HCA 3; (1975) 132 CLR 463 referred to.

4. Per French and Keifel JJ, Merkel J contra: The beneficial purpose of the Land Rights Act does not alter the conclusion that the seabed is not included in the definition of ‘land’. The Act represents a balance of interests and it is inconceivable that it was intended to extend to the seabed yet failed to make that explicit.

5. Per Merkel J: The legal meaning of the term ‘land’ is broad and inclusive and includes the seabed: Acts Interpretation Act; per Mason J in Goldsworth Mining Ltd, above. The legislative history of the Land Rights Act shows either that no consideration was given by the legislature as to whether ‘land’ includes seabeds or that the legislature left the issue for determination by the courts.

Note:

On 14 September 2001 the High Court granted special leave to appeal the Federal Court’s decision.