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Editors --- "Northern Territory of Australia v Honourable Justice Olney - Case Summary" [2002] AUIndigLawRpr 60; (2002) 7(4) Australian Indigenous Law Reporter 31

Court and Tribunal Decisions - Australia

Northern Territory of Australia v Honourable Justice Olney

Federal Court of Australia (Black CJ, French and RD Nicholson JJ)

3 September 2002

[2002] FCAFC 280

BC200205086

Land rights — traditional land claim — judicial review of recommendation for grant by Aboriginal Land Commissioner — effect of s 50(4) Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) — whether s 50(4) applicable to land claimed where no actual or desired occupancy of land or adjacent land — factors to determine ‘traditional owners’ — wider purpose of Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)

Facts:

The Northern Territory Government applied to the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth), seeking judicial review of recommendations for grant made by the Aboriginal Land Commissioner. The Commissioner recommended three coastal regions for grant in exercise of his functions under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (Land Rights Act). The areas subject to the recommendation were three coastal regions: the McCarthur River (and part of the Manangoora), Maria Island and Lorella Region. They included intertidal zones, riverbeds and riparian lands.

These regions and adjacent lands were unoccupied and not intended for occupancy by the traditional owners. The attachment of the traditional owners to their respective regions was based on spiritual affiliation, and hunting/fishing rights and access to the natural resources. The Commissioner concluded that s 50(4) of the Land Rights Act, which dealt with intended occupancy of claimed areas, had no bearing on the exercise of his functions in the instant case. The Northern Territory claimed that the Commissioner had erred in failing to consider give any weight to the principles in s 50(4) directed to securing areas for occupation by traditional owners, which if invoked could act to deny a claimants’ status as traditional owners if they had no actual or desired occupancy of the land.

Held (by Black CJ, French and RD Nicholson JJ), dismissing the application:

1. The Aboriginal Land Commissioner did not err in law in failing to take account of s 50 (4) of the Land Rights Act when reporting to the Minister under s 50(1)(a)(ii): [34].

2. The Commissioner considered s 50(4) in regards to each grant to determine whether the principles were applicable according to their respective factual circumstances. Since the regions in question were not subject to actual or intended occupancy by Aboriginal people, s 50(4) was irrelevant: [34]. R v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327 at 333 and 362 distinguished.

3. Section 50(4) was enacted to give a broader definition to ‘living at a place’, so as to recognise the complex and spiritual connection that Aboriginal people have with their country: [29]. R v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327 at 357-8 applied.

4. Section 50(4) must not be construed as derogating from, and thereby frustrating, the wider purpose of the Act, which is to benefit Aboriginal people through returning possession of their traditional lands: [29].

5. Section 50(4) has no bearing on the function of ascertaining who are the traditional Aboriginal owners (s 50 (1)(a)(i)) or the functions conferred by s 50(1)(b) and (c): [29]. ?