Raymond v Northern Territory of Australia [2004] FCAFC 258 (14 September 2004)

Last Updated: 15 September 2004

FEDERAL COURT OF AUSTRALIA

Raymond v Northern Territory of Australia [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






Aboriginal Land Rights (Northern Territory) Amendment Act 1987 (Cth)
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) s 3(1), 11, 12, 50, 50(1)(a), 50(3), 50(2A), 50(2C), 50(2D), 67A
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Judiciary Act 1903 (Cth) s 39B


Alcoota Aboriginal Corporation v Gray [2003] NTCA 14 discussed
The Queen v Toohey; Ex parte Attorney General (Northern Territory) [1980] HCA 2; (1980) 145 CLR 374 cited
Saraswati v The Queen [1991] HCA 21; (1997) 172 CLR 1 referred to
The Queen v Toohey; ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170 considered
The Queen v Kearney; ex parte Northern Land Council [1984] HCA 15; (1984) 158 CLR 365 followed
The Queen v Kearney; ex parte Japanangka [1984] HCA 13; (1984) 158 CLR 395 considered
Whittaker v Comcare [1998] FCA 1099; (1998) 86 FCR 532 applied





POMPEY RAYMOND v NORTHERN TERRITORY OF AUSTRALIA & ORS
D 4 OF 2004



BLACK CJ, MOORE & HELY JJ
14 SEPTEMBER 2004
MELBOURNE (HEARD IN DARWIN)

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	D 4 OF 2004

BETWEEN:	POMPEY RAYMOND APPLICANT
AND:	NORTHERN TERRITORY OF AUSTRALIA FIRST RESPONDENT YARABALA PTY LTD SECOND RESPONDENT HONOURABLE HOWARD OLNEY QC AS ACTING ABORIGINAL LAND COMMISSIONER THIRD RESPONDENT
JUDGES:	BLACK CJ, MOORE & HELY JJ
DATE OF ORDER:	14 SEPTEMBER 2004
WHERE MADE:	MELBOURNE (HEARD IN DARWIN)

THE COURT ORDERS THAT:

1. The application be dismissed with costs.











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

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	D 4 OF 2004

BETWEEN:	POMPEY RAYMOND APPLICANT
AND:	NORTHERN TERRITORY OF AUSTRALIA FIRST RESPONDENT YARABALA PTY LTD SECOND RESPONDENT HONOURABLE HOWARD OLNEY QC AS ACTING ABORIGINAL LAND COMMISSIONER THIRD RESPONDENT

JUDGES:	BLACK CJ, MOORE & HELY JJ
DATE:	14 SEPTEMBER 2004
PLACE:	MELBOURNE (HEARD IN DARWIN)

REASONS FOR JUDGMENT

THE COURT:

1 The long title of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (‘the Act’) is:

‘An Act providing for the granting of Traditional Aboriginal Land in the Northern Territory for the benefit of Aboriginals, and for other purposes.’

‘Aboriginal’ is defined in s 3(1) of the Act to mean a person who is a member of the Aboriginal race of Australia.

2 The procedure laid down by the Act for the achievement of that objective involves a three stage process. The first stage is the performance by an Aboriginal Land Commissioner (‘the Commissioner’) of the functions assigned to a Commissioner by s 50 of the Act. Depending upon the Commissioner’s findings and recommendations and the response of the Commonwealth Minister, the matter may move to the second stage, which is the establishment, in accordance with s 11 of the Act, by the Commonwealth Minister of a Land Trust for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of the relevant area of Crown land. The third stage involves the grant by the Governor-General of an estate in fee simple in the relevant land to the Land Trust in accordance with s 12 of the Act.

3 Section 50(1)(a) of the Act provides:

‘(1) The functions of a Commissioner are:

(a) on an application being made to the Commissioner by or on behalf of Aboriginals claiming to have a traditional land claim to an area of land, being 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:

(i) to ascertain whether those Aboriginals or any other Aboriginals are the traditional Aboriginal owners of the land; and

(ii)

to report his or her findings to the Minister and to the Administrator of the Northern Territory, and, where the Commissioner finds that there are Aboriginals who are the traditional Aboriginal owners of the land, to make recommendations to the Minister for the granting of the land or any part of the land in accordance with sections 11 and 12.’

4 Section 50(3) of the Act provides:

‘(3) In making a report in connexion with a traditional land claim a 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 Aboriginals, 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 Only Crown land (other than land in a town) may be the subject of a traditional land claim. ‘Crown land’ is defined in s 3(1) of the Act (subject to some extensions and qualifications which are immaterial for present purposes) to mean land in the Northern Territory that has not been alienated from the Crown by a grant of an estate in fee simple in the land. Unalienated Crown land (ie Crown land in which no person, other than the Crown, has an estate or interest) may be the subject of a traditional land claim. Alienated Crown land (ie Crown land in which a person, other than the Crown, has an estate or interest) may also be the subject of a traditional land claim, but only if all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals.

6 Thus, when originally enacted, the Act allowed for a traditional land claim (ie a claim by or on behalf of the traditional Aboriginal owners of the land arising out of their traditional ownership) to proceed to finality in respect of ‘alienated Crown land’, but only where all the estates and interests in that land were held by or on behalf of Aboriginals. Otherwise, alienated Crown land was outside the scope of the Act. Two consequential effects of this scheme should be noted here. First, Aboriginals who held interests in Crown land, such as the holders of a pastoral lease, but who did not claim to be the traditional owners of that land, were potentially in a disadvantaged position by reason of their membership of what the Act describes as the ‘Aboriginal race of Australia’. Second, Aboriginal leaseholders might themselves be claimants, seeking to enlarge their interest into a fee simple held for their benefit by a Land Trust: The Queen v Toohey; Ex parte Attorney General (Northern Territory) [1980] HCA 2; (1980) 145 CLR 374 at 389-390 (Stephen, Mason, Murphy and Aickin JJ).

7 On 18 September 1980, the Northern Land Council, on behalf of Aboriginals claiming to have a traditional land claim in respect of the lands comprised in Pastoral Lease No (PL) 640 in the Northern Territory, made an application to the Commissioner for a determination of their claim. The status of the land the subject of the claim was described in the application as follows:

‘All the land described above is alienated Crown Land in which all the estates and interests are held for and on behalf of Aboriginal people by Bagot’s Executor and Trustee Company Limited ... ad (sic) executor of the will of the late Henry Murray Bathern.’

8 The claimed land (otherwise known as Beetaloo Station, or simply as Beetaloo), had been held by members of the Bathern family for a considerable period. In 1941, the then leaseholder, Henry Murray Bathern, died. Probate of his will and a codicil was granted to Bagot’s Executor & Trustee Company Ltd (‘Bagot’s’) in February 1942. There were five beneficiaries of the estate, all of whom were Aboriginal. Of those beneficiaries only Hughey Bathern survived until the application was made in 1980. He died in 1983. The interests of the deceased beneficiaries all passed initially to family members who were Aboriginal.

9 On 11 November 1980, after becoming aware of the application, some of the beneficial owners of Beetaloo wrote to Mr Tuxworth, the then Member for Barkly in the Northern Territory Legislative Assembly. They said, inter alia:

‘We have no knowledge of the claim and we object [to] the claim being lodged because the land is held as a family and not because we are Aboriginal.’

10 On 29 May 1981 family members wrote to the then Commissioner (Toohey J) saying:

‘Bulwaddy Bathern set up a family trust many years ago not an Aboriginal trust and we regard ourselves as owning a pastoral lease just like the White man does. We think that it is wrong that other Aboriginals can claim our station. We have had the lease in our family for 90 years.

We do not want you to hear the claim because we do not regard ourselves as members of an (sic) trust under the Aboriginal Land Rights Act.’

11 The application first came before the Commissioner (Kearney J) on 17 November 1982. The issue then under consideration was whether all non-Crown estates and interests in the claimed land were held by Bagot’s on behalf of Aboriginals. That matter was not resolved at the first hearing nor was any formal finding made at subsequent hearings on 7 April 1983, 1 July 1983, 15 September 1983 and 1 May 1984. On the last of those occasions, the Northern Land Council successfully applied for an order that the matter be stood out of the list, to be restored on application being made by some interested party. One of the reasons why the parties did not wish to proceed with the application on 1 May 1984 was the real possibility that the Act would be amended to require the consent of the beneficial owners before the application could proceed. That possibility existed because of a report on the operation of the Act which Toohey J had submitted to the Minister for Aboriginal Affairs in December 1983.

12 The report (‘Seven Years On’) included the following:

222. There is, however, one aspect of para 50(1)(a) that calls for attention now. Where alienated Crown land is held by, or on behalf of, Aboriginals who are not the traditional owners, those Aboriginals will lose title to the land in the event of a successful land claim by the traditional owners.

223. This matter first arose during the hearing of the Borroloola land claim in relation to the occupation by the Johnston family of a special purposes lease on Vanderlin Island. At para 131 of the report of that claim I commented:

"A curious situation arises here. A special purposes lease is ordinarily alienated land but s 50(1)(a) permits an application to be made for alienated Crown land in which all estates and interests are held by Aboriginals. ‘Aboriginal’ is defined by s 3(1) to mean "a person who is a member of the Aboriginal race of Australia". The Johnstons, I think, answer this description, hence their special purpose lease may be claimed. It is unlikely that Parliament had such a situation in mind when framing the terms of s 50(1)(a), nevertheless the language of the statute is clear enough."

224. The matter has arisen, I understand, in the Beetaloo land claim presently before the Aboriginal Land Commissioner.

225. There is an anomaly which should be corrected. It can be done by amending para 50(1)(a) to make it clear that no claim may be made to alienated Crown land held by, or on behalf of, Aboriginals without the consent in writing of the registered proprietor.

226. Where that consent is given, para 11(1)(d) will require the Minister to ensure that all estates and interests are acquired by the Crown by surrender or otherwise. Acquisition must be on just terms and that is appropriate where the registered proprietor is not a traditional owner and will lose the benefit of the land. Where however the land is held by or on behalf of Aboriginals who, whether identified by name or more generally, are the traditional owners and will therefore continue to be the beneficiaries of the land, compensation is not appropriate.’

13 In the period between December 1981 and March 1984 the High Court decided what were referred to by counsel as a ‘trilogy of cases’. Each case in the trilogy involved an attempt on the part of the Northern Territory Government to deprive the Commissioner of jurisdiction to determine a traditional land claim by taking steps designed to change the status of the land such that in consequence of those steps the land ceased to be ‘unalienated Crown land’ which could be the subject of a traditional land claim. The decisions in question are:

• 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.

In each of the cases the attempt failed. The High Court held that as long as the land satisfied the description contained in s 50(1)(a) at the time when the application was made, any subsequent change in the status of the land did not deprive the Commissioner of his power and duty to exercise his functions in relation to the application. Only Wilson J (in dissent) favoured the view that a change in the status of the land subsequent to the making of an application whereby the land ceases to fit the description in s 50(1)(a) necessarily has the effect of depriving the Commissioner of any further function in respect of it: see [1981] HCA 74; (1981) 151 CLR 170 at 275; see also (1984) 158 CLR at 388-389.

14 In 1987 the Act was amended by the Aboriginal Land Rights (Northern Territory) Amendment Act 1987 (Cth) which came into effect on 5 June 1987. The amending Act introduced s 50(2C) and (2D) into the Act. Those sections provide:

‘(2C) Where:

(a) an application referred to in paragraph (1)(a) has been made to a Commissioner; and

(b) it appears to the Commissioner that an estate or interest in the land is held by or on behalf of Aboriginals;

the Commissioner shall not perform, or continue to perform, a function under that paragraph in relation to the application as it relates to that land unless the Aboriginals who hold that estate or interest have, or the body which holds that estate or interest on their behalf has, consented, in writing, to the making of the application.

(2D) Where:

(a) an application referred to in paragraph (1)(a) has been made to a Commissioner (whether before or after the commencement of this section);

(b) the whole or part of the land to which the application relates was reserved, dedicated or otherwise set aside under a law of the Northern Territory, with effect from a time before the commencement of this subsection, as a stock route or stock reserve; and

(c) if the application was made before the commencement of this subsection – the Commissioner had not, before that commencement, commenced an inquiry under paragraph (1)(a) in relation to the application in respect of that land or that part;

the Commissioner shall not perform, or continue to perform, a function under paragraph (1)(a) in relation to the application in respect of that land or that part.’

15 In his Second Reading Speech the Minister said in relation to s 50(2C):

‘An anomaly will be rectified whereby pastoral leases held by Aboriginals can be claimed by Aboriginal people other than the landholders, without their consent. In future, such consent will be required before a hearing can proceed.’

16 At the same time, s 67A was introduced into the Act. In very general terms, s 67A provides that any grant of an estate or interest in land that is the subject of a traditional land claim which has not been finally disposed of is ineffective. In the Second Reading Speech, the Minister said of this amendment:

‘The amendment effectively will freeze the status of land at the date on which a claim was or is lodged with a commissioner. So, for example, were the Northern Territory to purport the grant an estate or interest in land which is the subject of a traditional land claim, such a purported alienation would be deemed to be of no effect.’

Section 67A(5) provides that a traditional land claim shall be taken "not to have been finally disposed of insofar as it relates to a particular area of land" until one of the events specified in the subsection has occurred.

17 One of the beneficiaries of the estate of the late Henry Bathern was Hughey Bathern. Andre Milton Munckton (who is not an Aboriginal) was married to Hughey Bathern’s daughter, Sheila. He claimed that by assignments dated 20 November 1986 and 21 March 1987 he had acquired the interests of all of the beneficiaries in Henry Bathern’s estate other than that of Hughey Bathern which he (Munckton) held in his capacity as executor of the estate of Hughey Bathern’s widow, Lyleen Bathern. Litigation ensued in the Northern Territory Supreme Court. That litigation was settled pursuant to a deed of settlement made on 19 July 1994. By this time, PL 640 had become a perpetual pastoral lease (PPL 1059). On 14 October 1994 Ministerial consent was given to the transfer of PPL 1059 from Bagot’s to Beetaloo Station Pty Ltd and on 18 October 1994 that transfer was registered. On 3 December 2002 a transfer of PPL 1059 from Beetaloo Station Pty Ltd to Yarabala Pty Ltd (the second respondent in these proceedings) was registered. The consideration payable for that transfer was $6 million.

18 On 5 December 2003 the Commissioner (the Honourable Howard Olney QC, Acting Commissioner) heard argument on the issue of whether the Commissioner had jurisdiction to exercise functions under the Act in respect of the application under s 50(1)(a) of the Act made some 23 years earlier. On 24 March 2004 the Commissioner decided that by virtue of s 50(2C) of the Act, the Commissioner may not perform any function under s 50(1)(a) of the Act in relation to the Beetaloo land claim.

19 The application presently before the Court is an application pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth) to review that decision. By direction of the Chief Justice, the application was heard by a Full Court. The factual narrative outlined above is largely taken from the Commissioner’s reasons for decision.

The reasons for decision

20 It was common ground before the Commissioner that at the time the application was made, the claimed land was, for the purposes of the Act, alienated Crown land in which all estates and interests not held by the Crown were held on behalf of Aboriginals; and further that at no time had the Aboriginals on whose behalf the land was held, nor the body which held the land on their behalf, consented in writing to the making of the application.

21 The process of reasoning by which the Commissioner came to his conclusion can be summarised as follows:

• s 50(2C) applies to all unresolved applications of the type indicated in the subsection whether made before or after 5 June 1987;
• as at 5 June 1987 the Commissioner ceased to have either the power or the duty to exercise any function in relation to the Beetaloo land claim because the claimed land was alienated Crown land held on behalf of Aboriginals who had not consented to the application being made;
• when Bagot’s transferred the land to Beetaloo Pty Ltd, Aboriginals ceased to have any estate or interest in the claimed land, but that did not reactivate the Commissioner’s jurisdiction which had been dormant since 5 June 1987; and
• it defies logic to suggest that such a change should enable the Commissioner to exercise functions which he was prohibited from exercising when the land was held on behalf of Aboriginals. If the contrary were so, it would give rise to an even more curious situation than that referred to by Justice Toohey in his report on the Borroloola Land Claim.

The proceedings in this Court

22 The parties lodged written outlines of their submissions. The applicant’s written outline was constructed on the premise that the Aboriginal interest holders had disposed of their interests in the claimed land in favour of Andre Milton Munckton prior to the commencement of subs 50(2C) on 5 June 1987, hence, on the commencement of that section, it could not have appeared to the Commissioner that any estate or interest in Beetaloo Station was then held by or on behalf of Aboriginals. No finding to that effect was made by the Commissioner, although he did refer in his reasons for decision to the claim by Andre Munckton that between 20 November 1986 and 21 March 1987 he had taken assignments of rights in the estate of the late Henry Bathern. The Commissioner also referred to the fact that various members of the Bathern family had challenged the assignments in the Northern Territory Supreme Court. It is apparent, from a reading of the Commissioner’s decision, that the case argued by the applicant before the Commissioner proceeded upon the basis that it was the transfer of the claimed land to Beetaloo Station Pty Ltd on 18 October 1994 which produced the result that the claimed land was not held on behalf of Aboriginal interests.

23 In his oral submissions, counsel for the applicant, Mr Basten QC, retreated from the position adopted in the written outline, and accepted that this Court could not proceed upon the hypothesis that Aboriginal interests in the claimed land were disposed of before 5 June 1987. Rather, he put the applicant’s case on the basis that s 50(2C) is expressed in the present tense; it requires the formation of a subjective opinion by the Commissioner, and it could not have appeared to the Commissioner when he came to consider the matter in December 2003 or March 2004 that any estate or interest in the claimed land was then held by or on behalf of Aboriginals. Therefore s 50(2C) had no relevant application. In Mr Basten’s submission, s 50(2C) will protect an Aboriginal landholder against claims to which he does not consent. But if he exercises his right to sell his interest, his successor remains subject to a land claim which could not be pursued against the Aboriginal landholder. This result is said to follow from the ‘trilogy of cases’ to which we earlier referred.

24 A consequence of the applicant’s construction of the subsection is, in the respondent’s submission, that if a favourable recommendation were made by the Commissioner, and if the Commonwealth Minister were satisfied that there should be a grant under the Act, the Minister would be obliged to ensure that the estates and interest in the land of persons other than the Crown (ie the estate or interests of Yarabala Pty Ltd as lessee of PPL 1059) are acquired by the Crown by surrender or otherwise (the Act s 11(1)(d)). In the respondents’ submission, this produces the absurd result that non-Aboriginal purchasers of the land may be subject to compulsory divestment of their interest in the land in order to grant the land as ‘Aboriginal land’ in circumstances where the land does not fall within either category of land in respect of which an application under the Act can be made. The respondents also submitted that there is no bar in the Act on a transfer of the land to non-Aboriginal interests; this is in contrast with the bar created by s 67A on the making of grants by the Crown of an estate or interest in areas of land affected by a traditional land claim where the claim has not been finalised.

25 In the respondents’ submission:

(a) the interests of the Aboriginal holders were lawfully disposed of by registered transfer on 18 October 1994 to a non-Aboriginal purchaser;
(b) thereafter the land was neither unalienated Crown land nor alienated Crown land in which all estates and interests were held by or on behalf of Aboriginals and hence was not within the jurisdiction of the Commissioner under s 50(1)(a); and
(c) when s 50(2C) commenced on 5 June 1987, the Commissioner was statutorily barred from performing any functions in respect of the application. That is to say, he was deprived of jurisdiction to deal with the claim even though the land retained its status of land in respect of which an application could be made under s 50(1)(a) of the Act.

Our reasoning on the application

26 The 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.

27 It was not submitted by any party that s 67A of the Act operates to prevent Aboriginal interest holders from disposing of their interest in land the subject of a claim. Whether a transfer on sale would involve the ‘grant of an estate or interest’ in the affected land within the meaning of s 67A may be debateable, particularly having regard to the definition of ‘grant’ in s 3. In Alcoota Aboriginal Corporation v Gray [2003] NTCA 14 Mildren J (with whom Bailey J agreed) appears to have assumed that this may be so, but expressed the view (obiter) that s 67A(2) must be read down so that it has no application to cases where the Commissioner is deprived of jurisdiction to proceed with the land claim by virtue of s 50(2C). Whilst we agree, with respect, that s 67A should not receive a construction which would cut down the intended operation of s 50(2C), which was introduced at the same time, it is not necessary for us to pursue this question further, as nobody contended that s 67A operated to preclude a transfer of Aboriginal interests in the land the subject of the claim.

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 PPL 1059.

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 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 (b) above 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.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 14 September 2004

Counsel for the Applicant:	J Basten QC, S Glacken
Solicitor for the Applicant:	Northern Land Council
Counsel for the First Respondent:	T Pauling QC, R Webb
Solicitor for the First Respondent:	Solicitor for the Northern Territory
Counsel for the Second Respondent:	I Barker QC, P McNab
Solicitor for the Second Respondent:	Noonans Lawyers
Date of Hearing:	25-26 May 2004
Date of Judgment:	14 September 2004