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Editors --- "Raymond v Northern Territory of Australia - Case Summary" [2005] AUIndigLawRpr 5; (2005) 9(1) Australian Indigenous Law Reporter 33

Court and Tribunal Decisions - Australia

Raymond v Northern Territory of Australia

Federal Court of Australia Full Court (Black CJ, Moore and Hely JJ)

14 September 2004

[2004] FCAFC 258

Aborigines — land rights — traditional land claims — pastoral lease — effect of changes to the character of claimed land

Judicial review — decision of Acting Aboriginal Land Commissioner declining to exercise function in relation to land claim — where land held by Aboriginals at time claim was made — where land subsequently sold to non-Aboriginals — where Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ('the Act') provides that the claim shall not proceed in the absence of consent from the Aboriginal interest holders — whether Commissioner prevented from performing functions under the Act

Facts:

On 18 September 1980 the Northern Land Council, on behalf of Aboriginal people claiming to have a traditional land claim in respect of certain lands in the Northern Territory, made an application to the Aboriginal Land Commissioner (‘the Commissioner’) for a determination of their claim under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (‘the Act’).

The land in question had been held by the Bathern family for a considerable period. Henry Bathern held a lease over the land until his death in 1941, when his interests passed to his beneficiaries. These beneficiaries were all Aboriginal, but none were members of the group making the land claim. The beneficiaries did not, at any stage, grant the Northern Land Council permission to make the land claim.

At the time the land claim application was made, the sole surviving beneficiary of Henry Bathern was Hughey Bathern, who died in 1983. Hughey Bathern’s daughter married Andre Munckton, who is not Aboriginal. Munckton claimed that, by virtue of assignments dated 20 November 1986 and 21 March 1987, he had acquired the interests of all of the beneficiaries in Henry Bathern’s estate, except that of Hughey Bathern, which Munckton held in his capacity as executor of the estate of Hughey Bathern’s widow, Lyleen Bathern. Transfers of the land in question were subsequently registered on 18 October 1994 and 3 December 2002.

In December 2003, the Commissioner heard argument on the issue of whether the Commissioner had jurisdiction to exercise functions under s 50(1)(a) of the Act with regard to the traditional land claim application that had been made in 1980. The Commissioner declined to exercise these functions, stating that s 50(2C) of the Act, which commenced on 5 June 1987, prevented the Commissioner from exercising any function in relation to alienated Crown land held on behalf of Aboriginals who had not consented to the land claim application being made. Although the land was transferred to Munckton and his company after the commencement of s 50(2C), this did not reactivate the Commissioner’s jurisdiction.

The applicant sought review of the Commissioner’s decision.

Held, dismissing the application:

1. A subsequent change in the status of land which is subject to a land claim application does not deprive the Commissioner of his responsibility of determining the application: [26]. The Queen v Toohey; ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170, The Queen v Kearney; ex parte Northern Land Council [1984] HCA 15; (1984) 158 CLR 365, and The Queen v Kearney; ex parte Japanangka [1984] HCA 13; (1984) 158 CLR 395 followed.

2. The disposal of Aboriginal-held interests in land will not discharge or disable the Commissioner from performing his or her functions under s 50(1)(a) of the Act: [29].

3. The sale of Aboriginal interests in land would not defeat an earlier claim to the land, even though it was the existence of Aboriginal interests which enabled the land claim in the first place: [29]. The Queen v Toohey; ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170, The Queen v Kearney; ex parte Northern Land Council [1984] HCA 15; (1984) 158 CLR 365, and The Queen v Kearney; ex parte Japanangka [1984] HCA 13; (1984) 158 CLR 395 referred to.

4. If a land claim is made without the written consent of Aboriginals holding an interest in the land at the time the application was made, then from and after the enactment of s 50(2C) on 5 June 1987, the Commissioner is deprived of jurisdiction to deal with the traditional land claim. The deprival is not lifted if those Aboriginal interest holders dispose of their interest in the land: [36].

Case Extract:

26. The [land claim] application was competent when it was made, because the claimed land then satisfied the description of ‘alienated Crown land in which all estates and interests not held by the Crown are held ... on behalf of Aboriginals’: s 50(1)(a). It follows from the trilogy of cases earlier referred to that a subsequent change in the status of land the subject of an application does not deprive the Commissioner of his responsibility of determining the application (see, for example, The Queen v Kearney; ex parte Northern Land Council [1984] HCA 15; (1984) 158 CLR 365 at 373–374 (Gibbs CJ), 377 (Murphy J), 391–392 (Brennan J); The Queen v Kearney; ex parte Japanangka (1984) 158 CLR 394 at 403 (Gibbs CJ)). The making of the Beetaloo application therefore did not act to prevent those Aboriginals holding an interest in the subject land from disposing of that interest.

...

28. The interests of the Aboriginal holders were thus lawfully disposed of on 18 October 1994 when a non-Aboriginal purchaser became the holder of ... [the land].

29. But it does not follow that the Commissioner was discharged or disabled from performing his statutory function under s 50(1)(a) of the Act by reason only of the cesser of the Aboriginal interests. The three cases earlier referred to [The Queen v Toohey; ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170, The Queen v Kearney; ex parte Northern Land Council [1984] HCA 15; (1984) 158 CLR 365, and The Queen v Kearney; ex parte Japanangka [1984] HCA 13; (1984) 158 CLR 395] were concerned with actions taken by the Crown which (if valid) would have had the result that land which previously fell within the description of unalienated Crown land no longer answered that description, the same process of reasoning would lead to the conclusion (subject to the possible effect of s 50(2C)) that a sale of the Aboriginal interests would not defeat an earlier claim even though it was the existence of Aboriginal interests which enabled that claim to be made in the first place. Gibbs CJ, for example, put the matter succinctly at 158 CLR 374 when he said:

The Commissioner becomes obliged to perform his functions under s 50(1)(a) at the time when the application is made, if the land in respect of which the application is made at the time answers the requisite description. There is nothing in the Land Right Act that divests the Commissioner of his function if the land changes in character.

Observations were made by his Honour in Japanangka at 158 CLR 402, to similar effect.

30. Accordingly, the respondent’s submission [that after Aboriginal interests were disposed of by registered transfer to a non-Aboriginal purchaser the land was neither unalienated Crown land nor alienated Crown land in which all interests were held by or on behalf of Aboriginals and hence not within the jurisdiction of the Commissioner under s 50(1)(a)] ... is rejected.

31. In his report, Seven Years On, Toohey J directed attention to what he considered to be an unintended anomaly in the Act and recommended that it should be corrected. He noted in his report that the anomaly was present in the case of the Beetaloo claim. Subsection 50(2C) was intended to overcome the mischief identified by Toohey J, albeit not in precisely the same way as Toohey J had recommended.

32. In the Act’s unamended form, an application might be made under s 50(1)(a) by persons claiming to be the traditional owners of alienated Crown land, provided that all interests in the land were held by, or on behalf of, Aboriginals, even though the Aboriginal interest holders might be opposed to the claim succeeding. The Aboriginal holders of interests in the land were, in this respect, potentially subjected to a disability that was not imposed upon the members of any other race. The evident purpose of s 50(2C) was to remove this disability while at the same time enabling a traditional land claim to proceed if consent was given by the Aboriginal interest holders. An obvious situation in which consent may be envisaged is if the Aboriginal interest holders are, or form part of some larger group of, the traditional Aboriginal owners.

33. Section 50(2C) represents a policy choice between the traditional land claim and the property interests of Aboriginal people who hold an estate or interest in the claimed land. The subsection effects a significant change since it offers protection to the property interests by the introduction of the requirement of consent.

34. In interpreting the section, a distinction should be drawn between the object of the Act as a whole and the particular object that s 50(2C) seeks to achieve. The object of the Act as a whole is to create a scheme for the granting of traditional Aboriginal land in the Northern Territory for the benefit of Aboriginals. The evident object of s 50(2C) is to impose a limitation on the application of the scheme to one class of land, namely, land as to which an estate or interest is held by or on behalf of Aboriginals. Absent consent, the practical effect of the subsection is to exclude such land from the possibility of grant under the scheme. Thus the subsection does not give effect to the general object of the Act. Rather, it does the opposite.

35. It is implicit in the amendment, and clear from the extrinsic materials cited to us, that the intention was that non-consenting Aboriginal interest holders would be able to hold, enjoy and deal with their interests in the same way as interest holders of any other race. That intention would be frustrated if, upon a disposition of their interests, the jurisdiction of the Commissioner under s 50(1)(a) revived, as in a practical sense that would impede the ability of the Aboriginal interest holders to sell or transfer their interest.

36. Accordingly, if the Aboriginals holding an interest at the time the application was made do not give their written consent to the making of the application, then from and after 5 June 1987, s 50(2C) operates to deprive the Commissioner of jurisdiction to deal with the traditional land claim, and the deprival is not lifted if those interest holders dispose of their interest. Section 50(2C) is not expressed in terms which suggests that the jurisdiction of the Commissioner is merely suspended for so long as the land is held by non-consenting Aboriginal interest holders, and in any case to construe the section in that way would not be conducive to the achievement of the legislative purpose to which we have referred above.

37. However, s 50(2C) is expressed in the present tense; its operation is enlivened if it ‘appears to the Commissioner’ that an estate or interest in claimed land is held by, or on behalf of Aboriginals. That suggests as a possibility that the prohibition only operates when the Commissioner forms the requisite opinion, and that it is the Aboriginals who are the holders of interests in the land at that time whose consent is required if the statutory prohibition is to be lifted. That is, in effect, the applicant’s contention, with the refinement that as there were no Aboriginal interest holders at the time when the Commissioner gave his decision s 50(2C) never had any relevant operation.

38. The consent which is required to lift the statutory prohibition is consent to ‘the making of the application’, and the persons whose interests are potentially adversely affected by the making of the application at least include the interest holders at that time. It may well be that consent can be given after the application was made: see Alcoota Aboriginal Corporation v Gray [2003] NTCA 14. But that does not deny the fact that interest holders at the time when the application was made are in need of the protection which s 50(2C) was intended to provide, if they are to have the ability to enjoy their interest in the land in the same way as members of any other race.

39. It must have been apparent to the Commissioner on and from 5 June 1987, when s 50(2C) came into effect, that the conditions which enlivened its operation were satisfied. It was patent on the face of the application that all interests in the claimed land were held by, or on behalf of, Aboriginals, and at least some of the Aboriginal interest holders had declared their opposition to the claim proceeding. None had given their consent in writing (or at all) to the making of the application.

40. The Commissioner was not required to hold a hearing, or to deliver a judgment on the operation of s 50(2C). The claim was, however, before him in that it had been made. It was therefore a function of his office to proceed with the claim as s 50(1) required but subject to the limitation imposed by s 50(2C). In the circumstances, he became subject to a statutory duty not to proceed with the claim. The Aboriginal interest holders never consented, in writing (or, it seems, at all), to the making of the application. The fact that they disposed of their interests before the Commissioner formally confirmed that it was his duty not to proceed with the claim should not affect the matter. Otherwise s 50(2C) would have a capricious operation which might vary depending on accidents of timing, and that could not have been the intention of the Parliament.

41. The construction of s 50(2C) propounded by the applicant treats the words ‘it appears to the Commissioner’ as operating as a condition precedent such that the section is not enlivened until the Commissioner forms the requisite opinion. But there is no rational reason why the section should operate in that way, and if it did, the result would be manifestly absurd or unreasonable. In Whittaker v Comcare [1998] FCA 1099; (1998) 86 FCR 532 at 543–544 the Full Court said, in reliance upon the judgment of McHugh J in Saraswati v The Queen [1991] HCA 21; (1997) 172 CLR 1 at 22:

The court can call in aid wide powers when it has to try to give effect to confused statutory language. If a court concludes that the literal meaning of a provision does not confirm to the legislative purpose, the court can give effect to that purpose by addition to, omission from, or clarification of the particular provision.

42. We should point out that it is not the sale of the Aboriginal interests that is effective to defeat the land claim (which would be contrary to the outcome to be implied from the trilogy of cases earlier referred to); rather it is the introduction of s 50(2C) into the Act and the absence of a written consent on the part of the Aboriginal interest holders to the making of the claim that enables those interests to be transferred to a non-Aboriginal entity in a way that effectively renders the land free from the claim.

43. The Commissioner correctly concluded that he had no authority to exercise any function in relation to the application. The application to this Court should be dismissed with costs.

44. We note, by way of postscript, that a consequence of adopting the construction of s 50(2C) that we consider to be correct is that land claims can no longer be maintained or made in relation to Beetaloo Station. This is so because the original application could not proceed, in the absence of consent, when the last Aboriginal interest holders disposed of their interests, which occurred, at the latest, in 1994. And even if an interest in the Station were subsequently transferred to Aboriginals, no new application under the Act could be made, because s 50(2A) operates to prevent the Commission from considering any new claims made after 1 June 1997.

45. To some extent this might be seen as an unjust consequence, as no substantive determination has ever been made, or ever will be made, in relation to the original land claim application. However, any such injustice does not flow from s 50(2C) of the Act. Rather, it flows from the enactment of the sunset clause in s 50(2A) in 1987, and the passage of time thereafter.