Re Attorney-General of the Northern Territory of Australia v the Honourable Gerard Leslie Hand, Minister of Aboriginal Affairs; the Honourable Howard William Olney, Aboriginal Land Commission and Northern Land Council [1989] FCA 519 (20 December 1989)

FEDERAL COURT OF AUSTRALIA

Re: THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY
OF AUSTRALIA
And: THE HONOURABLE GERARD LESLIE HAND, MINISTER FOR
ABORIGINAL AFFAIRS; THE HONOURABLE HOWARD WILLIAM OLNEY,
ABORIGINAL LAND COMMISSION and NORTHERN LAND COUNCIL
No. N G 214 of 1989
FED No. 789
Aboriginal Land Rights
91 ALR 125
23 FCR 442

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart(1), Wilcox(1) and Gummow(1) JJ.

CATCHWORDS

Aboriginal Land Rights - Recommendation by Aboriginal Land Commissioner of grant of land containing a cattle research station - Research station conducted by Northern Territory Government on unalienated Crown land - Whether Commissioner required to comment on effect of grant on the research station - Whether research station is a use for a "community purpose" so as to exclude any obligation by Northern Territory Government to pay rent to the Land Council after grant - Meaning of "community purpose" - Whether Commissioner was required to assess an appropriate rent for the site.

Aboriginal Land Rights (Northern Territory) Act 1976 ss.3, 14, 15, 50.

Acts Interpretation Act 1901 s.22.

HEARING

SYDNEY
20:12:1989

Counsel for the Applicant: Sir Maurice Byers QC with

Mr J D Barrett

Solicitors for the Applicant: Freehill Hollingdale & Page Counsel for the

First and
Second Respondents: Ms C E Backhouse QC with

Mr C J Stevens

Solicitors for the First

and Second Respondents: Australian Government Solicitor

Counsel for the Third

Respondent: Mr R Howie

Solicitors for the Third
Respondent: Piggott Stinson

ORDER

1. The application be dismissed.
2. The applicant pay to the respondents their costs of
the proceeding.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

This proceeding arises out of a report by the Aboriginal Land Commissioner, Olney J, recommending the grant to an Aboriginal Land Trust, pursuant to the Aboriginal Land Rights (Northern Territory) Act 1976 ("the Land Rights Act"), of land in the Kidman Springs/Jasper Gorge area. The proceeding is brought by the Attorney-General of the Northern Territory under the Administrative Decisions (Judicial Review) Act 1977. The matter comes before a Full Court because the Commissioner, a Judge of this Court, is named as the second respondent: see s.20 of the Federal Court of Australia Act 1976. The first respondent is the Honourable G L Hand, the Minister for Aboriginal Affairs. The third respondent, added by an Amended Application filed during the course of the hearing before us, is the Northern Land Council, representing the Aboriginal claimants to the land.
The issues

2. The land claim which gave rise to the Commissioner's recommendation was first made in 1979. The claim was amended in 1983, and again in 1985, in each case so as to extend the area of the claim, and in 1986, so as to amend its description. Documents lodged with the Commissioner identified a total of 168 claimants.

3. The report of the Commissioner describes the claimed area as comprising three elements: Northern Territory Portion 824 ("NTP 824"), a central area roughly rectangular in shape upon which is located the Victoria River Research Station; Northern Territory Portion 2025, being portion of the Auvergne stock route immediately west of NTP 824; and Northern Territory Portion 2198, being portion of the Auvergne stock route which lies to the east of NTP 824. The Commissioner recommended a grant of the first two of these three areas, but not the third.

4. One of the matters considered by the Commissioner during the course of his inquiry was the effect of any land grant upon the future operation of the Victoria River Research Station. It appears that this facility is conducted by the Northern Territory Government on unalienated Crown land. As such, the land is available for claim; but the Commissioner took the view that he was required by s.50(3)(b) of the Land Rights Act to comment on the detriment to the Northern Territory Government which might result from any accession to the claim in respect of the research station site. Section 50(3) is as follows:

"50. (3) In making a report in connexion with
a traditional land claim the Commissioner shall
have regard to the strength or otherwise of the
traditional attachment by the claimants to the land
claimed, and shall comment on each of the following
matters:
(a) the number of Aboriginals with
traditional attachments to the land
claimed who would be advantaged, and the
nature and extent of the advantage that
would accrue to those Aborignals, if the
claim were acceded to either in whole or
in part;
(b) the detriment to persons or communities
including other Aboriginal groups that
might result if the claim were acceded to
either in whole or in part;
(c) the effect which acceding to the claim
either in whole or in part would have on
the existing or proposed patterns of land
usage in the region; and
(d) where the claim relates to alienated
Crown land--the cost of acquiring the
interests of persons (other than the
Crown) in the land concerned."

5. Both before the Commissioner and before us there was a question whether the view adopted by the Commissioner was correct. The answer depends upon whether the Northern Territory Government is a "person" within the meaning of s.50(3)(b). As to this, we note that the word "person" is not defined in the Land Rights Act. However, s.22 of the Acts Interpretation Act 1901 provides that, in any Act, unless the contrary intention appears, the word "person" "shall include a body politic or corporate as well as an individual". The Northern Territory Government is a body politic; and, therefore, a "person" within the meaning of s.50(3)(b). We discern no contrary intention in the Land Rights Act. The Commissioner was clearly correct in addressing this issue.

6. It is not necessary to reproduce in these reasons the whole of the discussion in the Commissioner's report on the matter of detriment to the Northern Territory Government. The Commissioner noted that, in one sense, the Northern Territory Government suffers a detriment whenever a land claim is granted. The only land which may be made the subject of a grant is unalienated Crown land or alienated Crown land in which all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals: see s.50(1)(a) and ss.11 and 12 of the Land Rights Act. Ex hypothesi, therefore, any grant will diminish the stock of land vested in the Northern Territory Government. If that be a detriment, it is one inherent in the system established by the Act. We agree with the Commissioner's comment that this is not the type of detriment contemplated by s.50(3)(b).

7. However, the Commissioner appreciated that, in the present case, another issue of detriment arose: the effect upon the future conduct of the research station. The Commissioner did not see the effect of a grant as being to preclude the future occupation of the land as a research station. His reason was the terms of ss.14 and 15 of the Land Rights Act which relevantly provide:

"14. (1) Where, on the vesting in a Land Trust
of an estate in fee simple in land, the land is
being occupied or used by the Crown or, with the
licence or permission of the Crown, by an
Authority, the Crown or the Authority is entitled
to continue that occupation or use for such period
as the land is required by the Crown or the
Authority.
(2) During the period for which, by virtue of
sub-section (1), the Crown or an Authority is
entitled to the occupation or use of land, any
buildings and improvements on that land shall be
deemed to be the property of the Crown or the
Authority.
(3) Nothing in this section prevents the
granting by a Land Trust of a lease of land
referred to in sub-section (1) to the Commonwealth,
the Northern Territory or an Authority and, if such
a lease is granted, the land ceases to be land to
which this section applies.
(4) ...
15. (1) Where an occupation or use of
Aboriginal land to which section 14 applies is for
a purpose that is not a community purpose, the
Crown shall pay to the Land Council for the area in
which the land is situated amounts in the nature of
rent for that occupation or use at such rate as is
fixed by the Minister having regard to the economic
value of the land.
(2) For the purposes of sub-section (1)--
(a) an occupation or use of land by the Crown
for forestry purposes shall be deemed to
be an occupation or use for a purpose
that is not a community purpose; and
(b) the economic value of land shall not
include the value of any royalties that
are, or may be, payable in connexion with
forestry operations on the land."

8. The view of the Commissioner was that the "detriment" to the Northern Territory Government which would arise from any grant of the site of the research station would be the obligation to pay to the relevant Land Council amounts in the nature of rent, as determined by the Minister; that is, the federal Minister for Aboriginal Affairs. In reaching that conclusion, the Commissioner considered, at least in a tentative way, the question whether the relevant use was a use for a "community purpose", so as not to attract the obligation to pay money in the nature of rent under s.15(1). In respect of that matter the Commissioner said this:

"Whether or not the present use of NTP 824 by
the Department of Primary Industry and
Fisheries is a 'community purpose' within the
meaning of that term as defined in s.3(1) of
the Act (i.e. a purpose that is calculated to
benefit primarily the members of a particular
community or group) is a question which falls
outside the functions of the Commissioner to
finally determine. By way of comment,
however, and without intending to usurp the
proper function of those who may hereafter be
obliged to make some binding determination of
the issue, it seems to me that 'the cattle
industry' does not constitute a particular
community or group and if that is so, then the
present use of NTP 824 is not for a community
purpose. The consequence of that conclusion
(if it is correct) is that upon the granting
of title to NTP 824 to a land trust, the Crown
would become liable to pay rent in accordance
with s.15(1) of the Act. I am unable from the
evidence available to me to make any comment
as to the likely quantum of such rent."

9. As the last sentence in this passage suggests, the Commissioner did not regard it as any part of his task to attempt to quantify the rent which would be likely to be payable or to make any prediction as to the view which the Minister might take about that matter.

10. In the present proceeding the applicant does not call into question the recommendation of the Commissioner that the land be granted. But he does complain of the Commissioner's treatment of the matter of detriment. He contends that, in order to discharge his duty under s.50(3)(b) of the Act, the Commissioner was obliged to make up his mind whether the use of the land was for a "community purpose", within the meaning of s.15(1), and, if it was not, to comment on the amount of an economic rent payable under that sub-section. To the extent that the Commissioner did express a view upon the question whether the land was used for a community purpose, the applicant says that he was wrong. The applicant seeks the following substantial relief:

"8. A declaration that upon the proper
construction of the Aboriginal Land
Rights (Northern Territory) Act 1976
(Cth) the use and occupation of the said
Victoria River Research Station by the
Crown in right of the Northern Territory
of Australia is for a 'community purpose'
in terms of sub-section 15(1) of the
Aboriginal Land Rights (Northern
Territory) Act 1976 (Cth).
9. An order setting aside paragraph 13.2.11
of the report of the Second Respondent
AND referring the matter back to the
Second Respondent to determine whether
the use and/or occupation by the Crown of
Northern Territory Portion 824 is for a
community purpose.
10. Subject to clause 8 above, an order
referring the matter back to the Second
Respondent directing him to comment upon
the detriment according to law."

"Community purpose"

11. In his report the Commissioner set out the history of the research station. The station was established in 1966, on former leasehold land which had been surrendered for that purpose. Research work commenced in 1969.

12. The station is financed and managed by the Northern Territory Department of Primary Industry and Fisheries. Part of the site is elevated and stoney and is of little or no value to stock. The productive area of the site is fenced into paddocks, which hold a total of about 1,200 cattle. In relation to the significance of the station, the Commissioner said:

"A substantial amount of evidence was called to
establish the nature and importance of the
past, present and planned research at VRRS.
It is unnecessary to refer to the evidence in
detail; rather it is sufficient to say that
VRRS is engaged in activities of a research
and experimental nature aimed at improving
husbandry within the cattle industry and to
some extent to develop methods of pasture
improvement and soil conservation. I am
satisfied that VRRS plays a useful part in the
development of the cattle industry in the NT."

13. The essence of the submission made on behalf of the applicant is that the Commissioner fell into error in treating the purpose of the research station as "the development of the cattle industry" in the Territory. This led the Commissioner, according to counsel, to ask himself the wrong question when he came to consider whether the use was for community purposes. It was simply inapt, it is said, to say that "'the cattle industry' does not constitute a particular community or group", so that "the present use of the NTP 824 is not for a community purpose". Counsel contend that the proper way to look at the matter is to say that the land is used for research into beef production in the semi-arid tropical interior of the Northern Territory and that the community or group who primarily benefit by that activity are pastoralists raising cattle in those areas, who receive advice, demonstrations on their properties and visits from the Research Station officers.

14. We observe that this description of the function of the research station is somewhat different to the description given in evidence before the Commissioner by Mr A T Allwood, the Assistant Secretary of the Industry Support Division of the Northern Territory Department of Primary Industry and Fisheries, the only witness to attempt a description of function. In his affidavit Mr Allwood detailed the type of research done at the station and he said that this research was disseminated through the extension service of his Department. He detailed how this was done. Mr Allwood went on to say that "(i)n addition to providing a service to the pastoral industry directly, the Research Station has a further role as a participant in the broader scientific community". He detailed that role, referring to joint projects with CSIRO and other organisations. Mr Allwood then dealt with the importance of the pastoral industry to the Northern Territory economy and the importance of research to the pastoral industry. Mr Allwood concluded his account of the purpose of the station by saying:

"Research programs are implemented primarily to
assist the pastoral industry and as such
reflect the needs of the industry."

15. The submission to the Commissioner of the Department of Primary Industry and Fisheries stated the objective of the station's research program in these terms:

"To improve and maintain the productivity of
the cattle industry of the region by
developing ecologically sound management
systems based on native pastures which
incorporate the need for sustainability of the
resource and improvement of previously
degraded areas while meeting the economic
requirements of the grazing industry."

16. Having regard to this material, it seems to us that the Commissioner was amply justified in describing the purpose of the research station in the terms which he used. Of course, to say that the research station plays a useful part in the development of the cattle industry in the Northern Territory is not to deny its importance to individual pastoralists. But it is simply to make the point that the research station was set up to benefit a particular industry, and through that industry the whole Northern Territory community, rather than pastoralists as individuals or a group of individuals.

17. Section 3 of the Aboriginal Land Rights (Northern Territory) Act contains a definition of "community purpose", in these terms:

"'community purpose' means a purpose that is
calculated to benefit primarily the members of
a particular community or group;".

18. Having regard to the evidence before him, we think that the Commissioner was justified in rejecting the view that the purpose of the station was primarily to benefit pastoralists. Consequently, there is no question of a benefit primarily to members of a particular community or group.

19. But, in any event, it seems to us that the words of the definition are not intended to cover a group of persons as loosely defined and geographically scattered as "pastoralists". It is true that, in one sense, it is possible to speak of "the pastoral community". But the word "community" generally connotes physical proximity. Thus the primary meaning ascribed to the word in the Macquarie Dictionary is "a social group of any size whose members reside in a specific locality, share government, and have a cultural and historical heritage". The second edition of the Oxford English Dictionary gives the following relevant definitions, under the heading "A body of individuals":

"6. The body of those having common or equal
rights or rank, as distinguished from the
privileged classes; the body of commons; the
commonalty.
7. A body of people organized into a
political, municipal, or social unity:
a. A state or commonwealth.
b. A body of men living in the same locality.
c. Often applied to those members of a civil
community, who have certain circumstances of
nativity, religion, or pursuit, common to them, but
not shared by those among whom they live; as the
British or Chinese community in a foreign city, the
mercantile community everywhere, the Roman Catholic
community in a Protestant city, etc., the Jewish
community in London, familiarly known to its
members as 'The Community'."

20. Similarly, the primary meaning of the word "group", according to the Macquarie Dictionary, is "any assemblage of persons or things; cluster; aggregation". The relevant Oxford English Dictionary definitions are:

"2. gen. An assemblage of persons, animals, or
material things, standing near together, so as to
form a collective unity; a knot (of people), a
cluster (of things).
3. A number of persons or things regarded as
forming a unity on account of any kind of mutual or
common relation, or classed together on account of
a certain degree of similarity."

21. Those definitions reinforce the impression, which we would anyway have gained from the context, that the words "community" and "group" are intended to refer to an aggregation of identifiable people living in proximity to each other. The use of the word "particular" is a telling indication that Parliament did not have in mind the whole of the Australian, or Northern Territory, community; but rather a specific section of it.

22. In s.15 the term "community purpose" is used to refer to a purpose of occupation or use of Aboriginal land. So the members of the relevant particular community or group must be persons who benefit from that occupation or use.

23. Counsel for the Northern Land Council points out that, in a number of places, the Act uses the term "Aboriginal community or group": see s.19(5)(b), s.23(3)(b), s.35(1)(b), s.35A, s.41(7), s.42(2)(b), s.46(4)(b), s.48A(4)(b) and s.68(2)(b). In each of these cases this term is used in a context appropriate to a cohesive, identifiable body of persons who are associated with particular land. In some of these cases the concept is of an incorporated Aboriginal community or group; others contemplate notice being given to the community or group. It seems to us to be reasonable to construe the words in the definition of "community purpose" in the same sense as when those same words are used in the Act to refer to an Aboriginal community or group. The reason, no doubt, why the word "Aboriginal" does not appear in the definition contained in s.3 is that the particular community or group which benefits from a particular purpose may be a racially mixed group. To adopt some examples given by counsel, if Aboriginal land is occupied or used for a school, a clinic, a police station, an airstrip or an electricity generator, that use is intended to benefit the whole of the local community, Aboriginal and non-Aboriginal alike. It would not be accurate to describe a racially mixed community as an "Aboriginal community or group"; yet it would be reasonable to deny rental, in relation to such a use, to the relevant Land Trust. Ex hypothesi the land is Aboriginal land, that is land of which particular Aboriginal claimants have demonstrated a traditional ownership. So the local community is likely to contain a good number of Aboriginals. It might have been thought to be unfair to require the Northern Territory Government, having provided a facility to that local community, also to pay rent for the use and occupation of the site of the facility.

24. In contrast, if the word "community" be construed in the broad manner contended by the applicant, there is little logic in s.15(1). In the case of any public facility one can identify, in a broad sense, particular beneficiaries: for a university, students and their teachers; for a gravel pit, motorists; for stock yards, pastoralists and cattle buyers. But, in many cases, such beneficiaries are a fluid class of widely dispersed people. Very often, the facility could be placed in any one of numerous locations. There is no logical reason why a particular Aboriginal community, denied the use of part of its land because it is the site of such a facility, should also be denied a payment of rental. The facility benefiting the wider community, it is logical that the whole community should pay for the use of the land.
Failure to quantify the rent

25. The basis of the submission that the Commission was under an obligation to estimate the rental value of the research station is that the Commissioner is obliged, under s.50(3), to comment on the detriment that might result to the Northern Territory Government if the claim were granted.

26. There is no doubt that the Commissioner is obliged to offer comment upon any matters of detriment discovered by him during the course of his inquiry: see The Queen v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327 at pp 333, 338-339, 345, 348, 360-361. But the obligation is merely to comment. In Meneling Station the High Court of Australia upheld the sufficiency of what had been done by the then Aboriginal Land Commissioner (Toohey J), and which the Commissioner described as "comment on those matters in a way that would be likely to assist the Minister in deciding whether or not to act on the recommendation." At p 333 Gibbs CJ said that s.50(3) "requires (the Commissioner) to remark upon those matters" (that is the matters mentioned in paras.(a) to (d) inclusive) "and to express his views upon them". At p 334 his Honour spoke of an expectation that the Commissioner will comment "in a way that will enable the Minister to understand the issues involved and the judgment which the Commissioner has formed with regard to the matters upon which the comment is made". At p 361 Brennan J spoke of the need for the Minister "to have knowledge of the several matters referred to in paras.(a) to (d) of s.50(3)". None of the members of the High Court suggested that the Commissioner was obliged to attempt a precise quantification of the degree of detriment -- a task which would be often difficult, in the absence of knowledge of the extent and timing of any grant.

27. There is nothing in the Act to suggest that the Commissioner has any role in fixing the amount payable to the Land Trust in the nature of rent. On the contrary, this is a function entrusted to the Minister by s.15(1) of the Act. It is not a matter about which the Commissioner is required to offer advice. It would be difficult for him to do so. The rent is to be fixed having regard to the economic value of the occupied land. At the time of writing his report, the Commissioner cannot know whether, and if so to what extent, any land recommended for grant will actually be granted. Nor can he know when the grant will be made or whether the value of the land will change in the meantime. These matters are all fundamental to the determination of value as at the date of the grant. Moreover, the Crown, or the relevant Authority, may cease to use the land before grant, so that no rental will be payable. Or the Land Trust may grant a lease pursuant to s.14(3).

28. It seems to us that the relevant obligation of the Commissioner is to identify any use by the Crown which will or may persist after any grant is made and to point out to the Minister that, if the use does persist, the Crown may be placed under an obligation to pay rent. It will be for the Minister to assess the likely significance of that obligation in determining whether to recommend a grant of the land.

29. In the present case the Commissioner discharged the obligation we have described. There is no substance in this point.

30. The Application should be dismissed, with costs.