R v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327 (8 December 1982)

HIGH COURT OF AUSTRALIA

THE QUEEN v. TOOHEY; Ex parte MENELING STATION PTY. LTD. [1982] HCA 69; (1982) 158 CLR 327

Real Property - Aboriginal Lands - Administrative Law

High Court of Australia
Gibbs C.J.(1), Mason(2), Murphy(3), Wilson(4) and Brennan(5) JJ.

CATCHWORDS

Real Property - Grazing licence granted pursuant to statute - Not assignable - Terminable on notice by Minister - Whether estate or interest in land - Whether profit a prendre - Crown Lands Act 1931 (N.T.), s. 107(1) - Crown Land Regulations (N.T.), regs. 70, 71, 71A.

Aboriginal Lands - Traditional land claim - Unalienated Crown land - Application to Aboriginal Land Commissioner - Report - Findings - Comment - Aboriginal Land Rights (Northern Territory) Act 1970 (Cth), s. 50.

Administrative Law - Mandamus - Commissioner to ascertain whether Aboriginals traditional owners of land and if so to recommend grant of land - Findings to be reported to Minister - Requirement to have regard to various matters - Requirement to comment on other matters - Whether in deciding whether to recommend grant Commissioner bound to have regard to matters for comment - Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), s. 50.

HEARING

1982, June 15, 16; December 8. 8:12:1982
MANDAMUS and PROHIBITION.

DECISION

December 8.
The following written judgments were delivered: -
GIBBS C. J. This application for mandamus and prohibition raises for of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), as amended, ("the Act"). Section 50, so far as it is material, provides as follows:

"(1) The functions of the 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 findings to the Minister and to the
Administrator of the Northern Territory, and, where
he 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;

. . .

(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 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.

(4) In carrying out his functions the Commissioner shall have
regard to the following principles:

(a) Aboriginals who by choice are living at a place on the
traditional country of the tribe or linguistic group to
which they belong but do not have a right or entitlement
to live at that place ought, where practicable, to be able
to acquire secure occupancy of that place;

(b) Aboriginals who are not living at a place on the
traditional country of the tribe or linguistic group to
which they belong but desire to live at such a place
ought, where practicable, to be able to acquire secure
occupancy of such a place."

Section 11 of the Act deals with the consequences of a recommendation made under s. 50. At the time when the Commissioner made his report it provided, inter alia, as follows:

"(1) Where -

(a) the Commissioner recommends to the Minister in a
report made to him under paragraph 50(1)(a) that an area
of Crown land should be granted to a Land Trust for the
benefit of Aboriginals entitled by Aboriginal tradition to
the use or occupation of that area of land, whether or
not the traditional entitlement is qualified as to place,
time, circumstance, purpose or permission; and

(b) the Minister is satisfied that the land or any part of the
land should be so granted,

the Minister shall -

(c) establish a Land Trust under section 4 to hold that land,
or that part of that land, for the benefit of such
Aboriginals;

(d) where that land, or that part of that land, is, or includes,
alienated Crown land, ensure that the estates and
interests in that alienated Crown land of persons (other
than the Crown) are acquired by the Crown by surrender
or otherwise; and

(e) after any acquisition referred to in paragraph (d) has been
effected, recommend to the Governor-General that a
grant of an estate in fee simple in that land, or that part
of that land, be made to that Land Trust."

Section 12 empowers the Governor-General, on receipt of a recommendation under (inter alia) s. 11, to execute a deed of grant in favour of a Land Trust. (at p332)

2. The question which arises on the application for prohibition is whether land the subject of a grazing licence granted pursuant to the Crown Lands Act 1931 (N.T.), as amended, is "unalienated Crown land" within the meaning of s. 50. That expression is defined by s. 3 of the Act to mean "Crown land in which no person (other than the Crown) has an estate or interest, but does not include land in a town". (at p332)

3. I have had the advantage of reading the reasons prepared by my brother Mason, and those prepared by my brother Wilson, and agree with them that the holder of a grazing licence under the Crown Lands Act (N.T.) does not have an estate or interest in the land the subject of the licence, and that such land is accordingly "unalienated Crown land" within the meaning of s. 50. I could not usefully add to the reasons which they have given for reaching that conclusion. (at p332)

4. The question which is raised by the application for mandamus is whether the Commissioner, in making a recommendation, is bound to take into account the matters mentioned in pars. (a) to (d) of s. 50(3) of the Act, upon which the Commissioner is required to comment in making his report. It seems right to conclude that the recommendations made under s. 50(1)(a)(ii) will be contained in, or at least annexed to, the report which sets forth the findings on which the recommendations are based, and which must also contain the comments on the matters mentioned in pars. (a) to (d). The Commissioner himself (Toohey J.) was of the opinion that it was not his duty to have regard to the matters mentioned in pars. (a) to (d) in considering what recommendation he should make, but that his duty was only to 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 p333)

5. At first sight it seems somewhat strange that when the Commissioner is required to make a report which contains comments as well as a recommendation, he should not be obliged, when making the recommendation, to take into account the matters upon which he has commented. This is the more strange when one of the matters on which comment must be made (that mentioned in par. (a)) is closely allied to one of the things to which the Commissioner must have regard (that mentioned in the opening words of sub-s. (3)). However, the section draws a clear distinction between those matters to which the Commissioner "shall have regard" and those upon which he "shall comment". When the section directs the Commissioner to "have regard to" the strength or otherwise of the traditional attachment by the claimants to the land claimed (sub-s. 3), and to the principles set out in sub-s. 4, it requires him to take those matters into account and to give weight to them as a fundamental element in making his recommendation: cf. Reg. v. Hunt; Ex parte Sean Investments Pty. Ltd. [1979] HCA 32; (1979) 53 ALJR 552, at p 554. When the section directs him to comment on the matters mentioned in pars. (a) to (d) of sub-s. (3), it requires him to remark upon those matters and to express his views upon them. The change in language is so significant that notwithstanding the difficulties of the section I find it impossible to reach any conclusion other than that a significant change of meaning is intended, and that the matters which form the subject of the comment are not matters to which the Commissioner is bound to have regard in making his recommendation. (at p333)

6. Although the form of the section is curious, the result is understandable. The governing principles, expressed in sub-s. (4), are that Aboriginals who by choice live at a place on the traditional lands of their tribe or linguistic group, or who wish to live at such a place, should, where practicable, be able to acquire secure occupancy of that place, or of such a place, as the case may be. The Commissioner must, in making his recommendation, have regard to this general principle, and to the strength or otherwise of the traditional attachment of the claimants to the land claimed in the particular case. If he recommends that an area be granted to a Land Trust it then becomes a matter for the Minister, acting under s. 11, to decide whether or not he is satisfied that the land or any part of it should be so granted. The Minister is in no sense bound by the recommendation of the Commissioner, and in making his decision may wish to consider the matters mentioned in pars. (a) to (d), including the detrimental effect of acceding to the claims. To enable the Minister to give proper consideration to those matters, the Commissioner is required to comment, and it is to be expected that he will do so 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. But the ultimate weight to be given to these matters is for the Minister to decide. (at p334)

7. For these reasons I consider that the Commissioner did not misconceive the nature of his functions. (at p334)

8. I would refuse the application for prohibition and mandamus. (at p334)

MASON J. This application for a writ of mandamus and for a writ of prohibition arises from a land claim known as the Finniss River Land Claim made by the Northern Land Council. In 1979 the Council lodged with the Aboriginal Land Commissioner, the first respondent, in respect of certain land in the Northern Territory, a claim under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("the Act"). The Commissioner recommended that there be grants to two Land Trusts of the relevant land. The Minister for Aboriginal Affairs, the second respondent, has not yet announced any decision as to whether he proposes to make a grant of land pursuant to the recommendations. (at p334)

2. The Finniss River Land Claim was made on behalf of Aboriginals claiming to have a traditional land claim to a broad sweep of land from the mouth of the Finniss River in a south-easterly direction to the Adelaide River and the Stuart Highway. (at p334)

3. Section 50 of the Act, to which I shall refer in more detail later, provides that where application is made to the Commissioner by or on behalf of Aboriginals claiming to have a traditional land claim to an area of unalienated Crown land, or alienated Crown land in which all estates and interests are held by or on behalf of Aboriginals, the Commissioner shall ascertain who are the traditional Aboriginal owners of the land and make recommendations to the Minister for the granting of the land or part of the land in accordance with ss. 11 and 12. Section 50(3)(b) requires the Commissioner to "comment" in his report on the detriment to persons or communities that might result if the claim were acceded to in whole or in part. (at p335)

4. Section 11(1) provides that, where the Commissioner recommends to the Minister that land should be granted to a Land Trust and the Minister is satisfied that the land should be so granted, the Minister shall, inter alia, establish a Land Trust to hold the land for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of the land and he shall recommend to the Governor-General that a grant of an estate in fee simple in the land be made to the Land Trust. Section 12 deals with the execution of the deed of grant by the Governor-General. (at p335)

5. The Commissioner furnished a report to the Minister on 22 May 1981. He found that there are Aboriginals who are traditional owners of the area claimed, these traditional owners being entitled by Aboriginal tradition to the use or occupation of the land in question. The Commissioner proceeded to recommend to the Minister that there be a grant to two Land Trusts of all of the unalienated Crown land in the area claimed. He found that the land the subject of a number of grazing licences, covering the western portion of the area claimed and affecting substantially other sections, was "unalienated Crown land". The Commissioner also made comments on the topics specified in s. 50(3)(a)-(d), such as the likelihood of detriment to persons which might result from the Minister's adoption of his recommendation (par. (b)). (at p335)

6. Pursuant to an order made by Wilson J. the applicants applied by notice of motion to the Full Court for a writ of mandamus directed to the Commissioner and a writ of prohibition directed to the Minister. The applicants sought a writ of mandamus commanding the Commissioner to exercise according to law the functions conferred an imposed upon him by s. 50 of the Act on the ground that the Commissioner merely commented upon, but failed to actually take into account, the detriment to persons including the applicants that might result if the Minister acceded to the claim, and a writ of prohibition prohibiting the Minister from proceeding further upon the Commissioner's recommendations and, in particular, from implementing those recommendations to the extent that they relate to lands the subject of grazing licences. (at p335)

The Commissioner's Duty Under Section 50.

7. Section 50, in so far as is presently material, provides:

"(1) The functions of the 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 findings to the Minister and to the
Administrator of the Northern Territory, and, where
he 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;

. . .

(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 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.

(4) In carrying out his functions the Commissioner shall have
regard to the following principles:

(a) Aboriginals who by choice are living at a place on the
traditional country of the tribe or linguistic group to
which they belong but do not have a right or entitlement
to live at that place ought, where practicable, to be able
to acquire secure occupancy of that place;

(b) Aboriginals who are not living at a place on the
traditional country of the tribe or linguistic group to
which they belong but desire to live at such a place
ought, where practicable, to be able to acquire secure
occupancy of such a place." (at p336)

8. The Commissioner held that the four matters enumerated in pars. (a)-(d) inclusive of sub-s. (3) were not to be taken into account by him in the making of his recommendation under s. 50(1)(a)(ii) and that they were intended to be the subject of comment only on his part, the weight to be attached to them being a matter for the Minister alone in making his decision under s. 11. (at p337)

9. The Commissioner attached significance to the difference between the expressions "shall have regard to" and "shall comment on" in the opening words of sub-s. (3), the former phrase being repeated in subs. (4). The applicants, on the other hand, urge that the difference in the expressions is of little moment, contending that the Commissioner is required to base his recommendations on all the considerations mentioned in sub-s. (3) as well as those in sub-s. (4). (at p337)

10. Although s. 50(1)(a)(ii) speaks of the Commissioner's duty to report his findings to the Minister, it is clear that, when this provision is read with sub-s. (3), the Commissioner's report will also set out his recommendations. Under sub-s. (1)(a)(ii) the Commissioner is bound to make recommendations for the granting of the land or part of it once he finds that there are Aboriginals who are the traditional Aboriginal owners of the land. In any event it would be artificial to suggest that the Commissioner's report is to be confined to his findings with the consequence that sub-s. (3) has no application to his recommendations. (at p337)

11. The Commissioner might be justified in refusing to find that the claimants are the traditional owners of the land if he concluded that the traditional attachment by the claimants to the land was very slight. However, he could, if he were so minded, use the slightness of the claimants' traditional attachment to the land, not as a ground for refusing to make a finding in their favour, but as a ground for recommending that part only of the land be granted to them. Sub-section (3) makes it clear that the Commissioner's regard to the strength of the traditional attachment is to be had in the course of making his report and the wording of sub-s. (1)(a)(ii) indicates a close relationship between that report and the functions of finding and recommending. In other words, the expression "have regard to" in sub-s. (3) introduces a factor which is material to the Commissioner's functions in finding and recommending. (at p337)

12. The change in language from "shall have regard to" to "shall comment on" in sub-s. (3) and the subsequent reversion to "shall have regard to" in sub-s. (4) is disconcerting to say the least of it. But the change in language, surprising though it is, does not justify an inference or implication that the expression "shall comment on" was intended to exclude from the Commissioner's discretion each of the four matters enumerated in the succeeding paragraphs. Indeed, it is almost a contradiction in terms to say that in making his report (which consists in essence in making a finding and a recommendation) the Commissioner shall comment on these factors but shall nevertheless not take them into account in discharging his statutory function. (at p338)

13. Had sub-s. (1)(a) stood on its own there would have been no doubt that the Commissioner's discretion in making a recommendation would have extended to all the matters mentioned in sub-ss. (3) and (4). By requiring the Commissioner to have regard to the strength or otherwise of the traditional attachment sub-s. (3) ensures that this factor will become a central element in the Commissioner's report. But I do not see that it provides a sound basis for going further so as to impliedly exclude regard for other factors. In this setting the additional requirement that the Commissioner shall comment on the four matters mentioned in pars. (a) to (d) inclusive gives emphasis to the need for him to cover them specifically in his report. The object of the requirement, it may be conceded, is to ensure that the Minister is better informed, but this in itself is entirely consistent with the comments forming part of the Commissioner's exercise of his statutory discretion. (at p338)

14. It is a matter of some importance that the matter referred to in par. (a) is virtually indistinguishable from the factor mentioned in the opening words of sub-s. (3). It could scarcely be suggested that, consistently with the opening words, the Commissioner could not have regard to the matter mentioned in par. (a). Yet, in substance this is the effect of the respondents' argument. They say "shall comment on" means "shall comment on but shall not take into account". And when we look ahead to par. (b) there is a strong case for saying that the strength of the traditional attachment by the claimants to the land is not something that can be assessed in isolation, without regard to detriment of the kind mentioned in par. (b). (at p338)

15. Some support for the applicants' case is provided by the word "recommendations" in s. 50(1)(a)(ii). If the Commissioner is to exclude from his consideration the matters in s. 50(3)(a)-(d), a recommendation for the granting of the land would flow automatically from a finding of traditional Aboriginal ownership. The word "recommendations" seems inapt in such a context for the word usually connotes a proposal or course of action favoured by the person making the recommendation after he has considered the relevant arguments and alternatives. This argument is partly, but not entirely, met by the requirement in s. 50(3) that the Commissioner shall "have regard to the strength or otherwise of the traditional attachment by the claimants to the land claimed". The duty to "make recommendations to the Minister for the granting of the land" seems to go beyond a mere examination of the strength of the traditional attachment to the land and to call for a consideration of the consequences of the granting of the land, consequences which fall within pars. (a)-(d). (at p339)

16. In the result I take the view that, in imposing the duty upon the Commissioner to comment on the four matters in pars. (a)-(d) in making his report, Parliament was at pains to ensure that comment on those matters emerged in the report. The four matters were clearly seen as the four crucial considerations which could countervail the fairness and justice of making a grant to a Land Trust. By ensuring comment by the Commissioner on these matters Parliament sought to avoid the possibility that important matters of policy would be overlooked. But I see no sound basis for imputing to Parliament an intention that the Commissioner should not take into account in making his recommendations the comments which it requires him to make. (at p339)

17. The Commissioner relied upon the structure of s. 11 in forming his view as to the construction of s. 50. The two pre-conditions to the Minister making a grant to a Land Trust pursuant to s. 11(1) are that -

"(a) the Commissioner recommends to the Minister in a report
made to him under paragraph 50(1)(a) that an area of
Crown land should be granted to a Land Trust for the
benefit of Aboriginals entitled by Aboriginal tradition to
the use or occupation of that area of land, whether or not
the traditional entitlement is qualified as to place, time,
circumstance, purpose or permission; and

(b) the Minister is satisfied that the land or any part of the
land should be so granted".

The Commissioner thought that, if the matters in s. 50(3)(a)-(d) were matters to be taken into account by him in arriving at his recommendation, the situation could arise where the Commissioner may base his recommendations on matters to which the Minister would give a distinctly different weight. If the Commissioner attributed such great weight to the matters that he recommended that no grant should be made, the Minister would be deprived of the power to make a grant because the pre-condition in s. 11(1)(a) would not be satisfied, even if he disagreed to such an extent with the Commissioner on the weight to be attributed to the relevant matters that he would himself have been inclined to make the grant. This, thought the Commissioner, unnecessarily restricts the Minister's discretion in s. 11(1)(b). (at p339)

18. However, this argument is met by implications arising from the nature of the Commissioner's position. The Commissioner must be a judge of the Supreme Court of the Northern Territory (s. 53(1)). This suggests that the Commissioner will be no less qualified to balance the relevant considerations than the Minister. Moreover, it is the Commissioner, not the Minister, who conducts an inquiry into a land claim. As he is the person who personally sees and hears the witnesses and reviews all the evidence, it is natural that he should be called upon in the first instance to evaluate the various competing considerations which are relevant to the recommendation which he is required to make. In saying this, I do not depreciate the importance of the Minister's discretion under s. 11(1)(b). But, for the reasons that I have given, I do not think that the fact that a negative recommendation by the Commissioner deprives the Minister of the power to exercise any discretion at all was a result necessarily unintended by Parliament. (at p340)

19. If, as I conclude, the Commissioner was bound to take into account s. 50(3)(a)-(d) in making his recommendations then he is a public official who has failed to perform a public duty (R. v. War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228, at pp 242-243) and mandamus will lie at the instance of those with sufficient standing to compel him to perform it. If he had taken into account the factors enumerated in s. 50(3)(a)-(d), and in particular s. 50(3)(b), in making his recommendations it is at least possible that his recommendations would have been more favourable to the applicants. Indeed, in par. 425 of his report the Commissioner acknowledged that the excision of certain land from the area claimed "would remove any likelihood of detriment" to the applicants. In these circumstances the applicants have a real and substantial interest in compelling the Commissioner to perform his duty according to law. (at p340)

20. I would therefore make the order for mandamus commanding the Aboriginal Land Commissioner for the time being (the first respondent having ceased to be the Commissioner) to deal with the land claim according to law. (at p340)

The Grazing Licences.

21. Section 50 of the Act confers jurisdiction on the Commissioner in respect of land claims to "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". The land the subject of grazing licences in the area claimed does not fall into the latter category and the only question is whether it is "unalienated Crown land". (at p340)

22. Section 3(1) defines "unalienated Crown land" as meaning "Crown land in which no person (other than the Crown) has an estate or interest . . .". The sub-section gives a complementary definition of "alienated Crown land". The crucial question, then, is whether the persons holding grazing licences over parts of the area claimed have "an estate or interest" in the land by virtue of their grazing licence. Section 3(2) states that, unless the contrary intention appears "a reference in this Act to an estate or interest in land includes a reference to an interest by way of a right against the Crown to a grant of an estate or interest in land" and excludes certain interests which are not presently material. (at p341)

23. The grazing licences are granted pursuant to s. 107 of the Crown Lands Act 1931 (N.T.). Section 107(1) provides:

"The Minister may, under and subject to the regulations,
grant licences to persons to graze stock or any particular kind of
stock, on any Crown lands, which are not held under a lease or
licence granted under this or any other Ordinance, or on any
reserved or dedicated lands, for such period, not exceeding one
year, as is prescribed." (at p341)

24. Division 1 of Pt VII of the Crown Lands Regulations deals with grazing licences. The amount payable for a grazing licence is calculated at the rate of $0.02 per month per 2.6 square kilometres of land (reg.64(4)) subject to the Minister, in his discretion, making a determination in accordance with the formula laid down by reg. 73. A grazing licence shall include a condition prescribing the maximum number and type of stock which may be depastured on the land and may include any other conditions which the Minister may think necessary or desirable in any particular case (reg.66). An applicant for a grazing licence may, if he has not commenced to graze stock on the land, withdraw his application if he is not satisfied with the conditions imposed by the Minister (regs. 67(3) and 68(2)). A grazing licence ceases to be in force on 30 June each year (reg. 70) but may be renewed, at the Minister's discretion, for a further period not exceeding twelve months (reg. 72(1)). Failure to comply with a condition of the licence may lead to forfeiture of the licence (reg. 71) and a licence may be cancelled if the Minister gives three months' notice in writing of his intention to cancel it (reg. 71A). There is also provision for surrender of a grazing licence (reg. 71B). (at p341)

25. The applicants' argument is that a grazing licence created under the Crown Lands Act is a profit a prendre and constitutes an interest in land. The respondents do not dispute that a profit a prendre constitutes an interest in land at common law. Their submission is that a grazing licence created under the Crown Lands Act is not a profit a prendre; that the statute gives a clear indication that a grazing licence does not carry with it an interest in land. (at p342)

26. There is no question that the phrase "estate or interest" in s. 3(1) of the Act has, in its ordinary and natural usage, a proprietary connotation: see Stow v. Mineral Holdings (Aust.) Pty. Ltd. [1979] HCA 30; (1977) 51 ALJR 672, at p. 679; Harada v. Registrar of Titles (1981) VR 743, at p. 748. No one who has a merely personal right in relation to land can be said to have an "estate or interest" in that land. Here the natural and ordinary meaning of the expression is reinforced by the circumstance that it is a constituent element in the definition of "unalienated Crown land". The definition gives emphasis to the notion that Crown land remains unalienated unless and until the Crown grants to another some proprietary interest in the land. (at p342)

27. In National Provincial Bank Ltd. v. Ainsworth [1965] UKHL 1; (1965) AC 1175, at pp. 1247-1248, Lord Wilberforce said:

"Before a right or an interest can be admitted into the category
of property, or of a right affecting property, it must be
definable, identifiable by third parties, capable in its nature of
assumption by third parties, and have some degree of
permanence or stability." (at p342)

28. In my opinion, the rights of the holder of a grazing licence created under the Crown Lands Act fall short in two respects of the concept of property or proprietary rights expressed by Lord Wilberforce. Regulation 71 (the Minister's power to forfeit a grazing licence where the licensee fails to comply with a condition of the licence after having been given notice to do so) and reg. 71B (the right of a licensee to surrender his licence) are not inconsistent with the notion that a grazing licensee holds an interest in land. But reg. 71A represents a substantial obstacle to the applicants' case. That regulation enables the Minister to cancel a licence, the only pre-condition being that he give three months' notice in writing of his intention to do so. No default on the part of the licensee is necessary. The regulation suggests that the licensee has no interest in the land at all. The future of his right to graze stock is by virtue of the Minister's power to cancel, absolutely in the hands of the Minister and beyond his own control. A right terminable in the manner permitted by reg. 71A lacks that degree of permanence of which his Lordship spoke. (at p342)

29. Assignability is not in all circumstances an essential characteristic of a right of property. By statute some forms of property are expressed to be inalienable. Nonetheless, it is generally correct to say, as Lord Wilberforce said, that a proprietary right must be "capable in its nature of assumption by third parties": see generally the discussion by Dawson and Pearce, Licences Relating to the Occupation or Use of Land (1979), p. 220. (at p343)

30. There is nothing in the Crown Lands Act to indicate that a grazing licence is assignable. In fact, all indications are to the contrary. There is provision in s. 26 for the transfer of a lease granted under that Act, but no corresponding provision in relation to grazing licences. Moreover, the regulations, to the extent that they deal with applications for licences, do not seem to leave much room for assignability. Regulation 65, which vests in the Minister the discretion to grant or refuse applications for grazing licences, is couched in the widest terms. Regulation 66(d) enables him to impose any conditions he thinks necessary or desirable on a licence. When the regulations so carefully place with the Minister the discretion to grant applications it is difficult to conclude that it was intended that successful applicants could later, completely outside the control of the Minister, assign the licence. (at p343)

31. Section 107A gives further emphasis to the personal nature of the right conferred by the grant of a grazing licence. That section provides that a licensee must apply for permission if he wishes to make or erect improvements on the land. This is a very strong indication that property in the land remains in the Crown and does not pass to the licensee. In Quinane v. Browne (1901) 27 VLR 100, Hood J. had to consider whether a person having the right to depasture sheep and cattle on land under licence from the Crown under s. 123 of the Land Act 1890 (Vict.) was "holding any land" under the Vermin Destruction Act 1890 (Vict.). In concluding that the licensee had no title to the land his Honour was influenced by the fact that the licence conferred no right to build or cultivate or, without the permission of the Minister, to construct dams and erect fences (1901) 27 VLR, at p. 103. (at p343)

32. Earlier, in Shire of Wimmera v. Brimacombe (1897) 23 VLR 217, Hood J. was faced with the question whether land over which there was a grazing licence under the Land Act was unoccupied Crown land under the Local Government Act 1890 (Vict.). He held that the Local Government Act dealt with occupiers "having some right in the land itself" and thought that a grazing licensee under the Land Act was not such a person (1897) 23 VLR, at p 219 That decision is of relevance here because, in so concluding, his Honour had regard to a condition in the licence that the land could be alienated or reserved by the Crown at any time and a further condition restricting improvements by the licensee. I have referred to the significance of s. 107A of the Crown Lands Act, which imposes a condition respecting improvements. The former condition is akin to reg. 71A in the present case, the similarity being that it tends to undermine the permanence and stability of the licensee's right. (at p344)

33. Much argument was directed to the significance of exclusive possession in the characterization of grazing licences. Ultimately, however, I do not think that it is an issue which takes the applicants very far, even if it be the case that exclusive possession is very often a characteristic of a proprietary right. The applicants contend that the grazing licensee is given exclusive possession of the interest granted in the sense that a grazing licence cannot be granted to another which would interfere with the exercise of the original licence. Even if the applicants are correct in submitting that more than one grazing licence cannot be granted over the same land at the same time because Crown land over which there is a grazing licence is "held under a . . . licence" within s. 107 of the Crown Lands Act, I do not think that it follows that a grazing licence confers on the licensee a right to exclusive possession. The terms and conditions of the licence do not suggest that it confers such a right. (at p344)

34. My conclusion is that the intention evinced by the Crown Lands Act and the Crown Lands Regulations is that all that should pass to a grazing licensee is a personal right and no right of a proprietary nature. I say this notwithstanding the similarity between the rights conferred by a grazing licence and the classical definition of a profit a prendre:

". . . a profit a prendre confers a right to take from the servient
tenement some part of the soil of that tenement or minerals
under it or some of its natural produce, or the animals ferae
naturae existing upon it . . ." (Alfred F. Beckett Ltd. v.
Lyons (1967) 1 Ch 449, at p 482, per Winn L.J.)

The grazing licence is the creature of statute forming part of a special statutory regime governing Crown land. It has to be characterized in the light of the relevant statutory provisions without attaching too much significance to similarities which it may have with the creation of particular interests by the common law owner of land. (at p344)

35. It follows that the Commissioner was correct in concluding that the land the subject of grazing licences in the area claimed is "unalienated Crown land". (at p344)

36. In the result I would refuse the application for a writ of prohibition. (at p344)

MURPHY J. I agree generally with Wilson J.'s conclusions and reasons. (at p345)

2. An estate or interest within the meaning of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), as amended ("the Act"), refers to something much more substantial than the grazing licences authorized by the Crown Lands Act 1931 (N.T.), which are not assignable and are relatively ephemeral. It is immaterial whether in another context a grazing licence would be a profit a prendre. The ground for prohibition is not made out. (at p345)

3. The interpretation of s. 50 of the Act is difficult. One reasonable view is that in making his recommendations, the Commissioner is not bound to, but may, have regard to matters in (a) to (d) of s. 50(3) of the Act, but whether or not he does so, he must comment on them so that the Minister, in making his decision, may have regard to them. On that interpretation, the Commissioner misdirected himself in deciding that he could not have regard to those matters, but this was harmless error because it is clear from his decision that had he decided that he was entitled but not bound to do so, he would not have had regard to them. (at p345)

4. However, the purpose of s. 50 is to open up the possibility of a grant of land which has traditional Aboriginal ownership, not to close it. For this reason, s. 50 should be read as requiring the Commissioner to comment on the matters in (a) to (d) but to have no regard to them in making his reccomendation. (at p345)

5. The application should be refused. (at p345)

WILSON J. In this proceeding the applicants seek the issue of two prerogative writs. They ask that a writ of mandamus be directed to the Aboriginal Land Commissioner (Toohey J.) commanding him to exercise according to law the functions conferred and imposed upon him by s. 50 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), as amended ("the Act"), in relation to the claim called the Finniss River Land Claim. In the second place they apply for a writ of prohibition directed to the Commonwealth Minister of State for Aboriginal Affairs to prohibit him from proceeding further upon the recommendations concerning the Finniss River Land Claim made by the Commissioner on 22 May 1981 and, in particular, from implementing the recommendations so far as they relate to lands the subject of certain grazing licences. It is convenient to deal separately with each application. (at p345)

1. Mandamus.

2. The sole ground on which it is argued for the applicants that a writ of mandamus should issue is that the learned Commissioner failed to perform his functions according to law in that he failed, in making recommendations to the Minister under s. 50(1)(a)(ii) of the Act, to take into account the detriment to persons, including the applicants, that might result if the claim was acceded to in whole or in part. The problem is raised by the uncertain wording of the relevant provisions of s. 50. Those provisions are:

"(1) The functions of the 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 findings to the Minister and to the
Administrator of the Northern Territory, and, where
he 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;

. . .
(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 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.

(4) In carrying out his functions the Commissioner shall have
regard to the following principles:-

(a) Aboriginals who by choice are living at a place on the
traditional country of the tribe or linguistic group to
which they belong but do not have a right or entitlement
to live at that place ought, where practicable, to be able
to acquire secure occupancy of that place;

(b) Aboriginals who are not living at a place on the
traditional country of the tribe or linguistic group to
which they belong but desire to live at such a place
ought, where practicable, to be able to acquire secure
occupancy of such a place."

Sections 11 and 12 provide the machinery whereby a grant of an estate in fee simple in land may be made to a Land Trust, provided that two conditions precedent are satisfied. Those conditions are, first, that the Commissioner recommends to the Minister that a grant of a specified area of Crown land be made and, secondly, that the Minister is satisfied that the land or any part of the land should be so granted. (at p347)

3. The competing submissions advanced for the applicants and the respondents did not more than repeat arguments which have been ventilated at length in several different hearings of land claims by the Commissioner: see the reports known as the Borroloola Report (pars. 15-24), the Warlpiri Report (pars. 9-12), and the Finniss River Report (pars. 244-255), and the Annual Reports of the Commissioner for the years 1978 and 1979. (at p347)

4. In the Borroloola Report (par. 24) the Commissioner summarized his functions in respect of a claim to unalienated Crown land as follows:

"1. I am to ascertain who are the traditional Aboriginal
owners of the land claimed, if there be such.

2. I am to have regard to the strength or otherwise of their
traditional attachment to that land.

3. I am to have regard to the principles spelled out in
subs. (4).

4. That done, I am to make recommendations to the Minister
for the granting of land, if it be appropriate.

5. I am then to comment on the matters mentioned in
paragraphs (a) to (c) of sub-s. (3), but in doing so I shoud make
some evaluation of those matters in such a way as to assist the
Minister in deciding whether to act on my recommendations."

His Honour reiterated and defended this view of his functions in the Finniss River Report. (at p347)

5. Mr. Conti, counsel for the applicants, argues that the Commissioner has misconceived his function. He submits that his task is to take into account all of the matters set out in sub-s. (3) when considering whether to recommend a grant. The sub-section directs what he shall do in making his report. It is only sensible that his recommendation should be grounded on the totality of the report. The Minister should have the benefit of the exercise of a judicial discretion to guide him in the final decision as to whether a grant should be made. In the present case, therefore, the Commissioner should have taken into account the detriment which a grant of the whole area claimed would cause to the applicants; had he done so, he could conveniently have harmonised the competing interests by recommending the grant of part only of the land. (at p348)

6. The problem is wholly one of construction of a novel piece of legislation. There are no precedents. The long title recites, inter alia, that it is an Act "Providing for the granting of Traditional Aboriginal Land in the Northern Territory for the benefit of Aboriginals . . . ". The fulfilment of the statutory scheme is embodied, as I have already indicated, is ss. 11 and 12, when the Minister having received a recommendation and a report from the Commissioner is satisfied that a grant should be made. He will then establish a Land Trust and advise the Governor-General to execute a grant. (at p348)

7. The Commissioner makes clear in the reports to which I have referred the considerations which led him to the view which is now under challenge. At the risk of failing to do justice to those reasons, I would summarize them as follows:

1. The structure of s. 50(1)(a) is to gear the making of a recommendation to a finding of traditional Aboriginal ownership, rather than to the range of matters canvassed by pars. (a) to (d) in sub-s. (3). The making of a recommendation for the granting of land is dependent upon such a finding. It is qualified only by the obligation to have regard to the strength or otherwise of the traditional attachment of the claimants to the land claimed.

2. It is not possible to ignore the shift in the language of sub-s. (3) from "shall have regard to" to "shall comment on". A difference of function is indicated.

3. The Minister has no power to effect a grant unless the Commissioner first makes a recommendation. The scope of the Minister's discretion would be unnecessarily restricted if the Commissioner were to take into account discretionary considerations to which the Minister might attach different weight.

4. The Act provides no criteria whereby the Commissioner could make a judicial assessment of competing interests which are so diverse as traditional ownership and the detriment which a grant might cause to other persons. If the Commissioner must weigh up all the matters stated in s. 50 in determining whether to make a recommendation, there is no guidance in the Act as to the priority to be accorded to competing interests or as to the manner in which conflicts between them are to be resolved. (at p348)

8. In my opinion, the Commissioner has adopted the correct approach to his task. In weighing up the competing considerations which are provoked by the working of s. 50, I am influenced particularly by the fact that s. 11 controls the scope of the discretion accorded to the Minister, indeed its very existence, by reference to a recommendation of the Commissioner. In my opinion, the Act recognizes the political character of a decision to grant traditional Aboriginal land in the Northern Territory for the benefit of Aboriginals. It is consistent with that recognition to require the Commissioner to determine judicially the existence of traditional owners and the strength of their attachment and then, applying the principles stated in s. 50(4), to make recommendations for the granting of the land claimed or any part of it. Those matters, and hence the recommendation, determine whether any grant at all can be made. If the Commissioner's recommendation was to be made in the exercise of a judicial discretion which had regard to the matters listed in pars. (a) to (d) of s. 50(3), it might sometimes be the case that notwithstanding the satisfactory proof of a strong traditional claim, the Commissioner would be led by considerations extraneous to that claim to refrain from making a recommendation. In that case, whatever the Minister's wishes might be, he would be precluded from even considering the making of a grant. The policy of the Act being to facilitate the grant of land for the benefit of Aboriginals who have a strong traditional claim to it, that construction of s. 50 should be adopted which will secure to the Minister the widest possible discretion as to whether, given such a claim, a grant should be made. The matters which are listed in s. 50(3) as the subject of comment in the report are matters which expose for the consideration of the Minister the implications of a decision by him to make a grant. (at p349)

9. I would refuse the application for a writ of mandamus. (at p349)

2. Prohibition.

10. In the Finniss River Report, the Commissioner recommends that grants be made of areas of land which include land which is the subject of grazing licences granted pursuant to the Crown Lands Act 1931 (N.T.), as amended. The applicants argue that the grant of a grazing licence is the grant of an estate or interest in land within the meaning of that expression in the Land Rights Act, which I shall continue to refer to as "the Act". If this is so, then the land in question is not "unalienated Crown land" and the Commissioner has no jurisdiction to make a recommendation relating to such land. It follows that the Minister has no power to act on that part of the recommendation that relates to land the subject of such licences. (at p349)

11. The Crown Lands Act deals generally with the administration and alienation of Crown lands in the Northern Territory. Part III of the Act deals with the grant of estates in fee simple, of leases and of easements. Part VI deals with the grant of licences bearing the description of grazing licences, occupation licences and miscellaneous licences respectively. Section 107(1) empowers the Minister to "grant licences to persons to graze stock . . . on any Crown lands . . . for such period, not exceeding one year, as is prescribed". The holder of such a licence may apply to the Minister for permission to make specified improvements on the land. In such a case, on the expiration or determination of the licence, the licensee is entitled to be compensated for those improvements (s. 107A). Regulations made pursuant to the Act require the payment of a fee on the application for a licence (reg. 64) and rent calculated in the manner provided. The licence will prescribe the maximum number and type of stock which may be depastured on the land in respect of which it is granted and may include any other conditions which the Minister may think necessary or desirable in any particular case (reg. 66). Subject to forfeiture or cancellation, a grazing licence remains in force until 30 June next following the date of the grant of the licence and may, at the discretion of the Minister, be renewed from time to time for a period not exceeding twelve months (regs. 70, 72). Where the licensee has failed to comply with a condition of the licence, the Minister may, inter alia, forfeit the licence (reg. 71). It may also be cancelled by the Minister at the expiration of three months' notice in writing (reg. 71A). A licence may be surrendered but in that event no compensation is payable for improvements (if any) on the land and no part of the fee or rental is refunded (reg. 71B). (at p350)

12. The Commissioner concluded that the rights conferred by the Act and regulations were given to a particular individual to make use of land for a specified purpose, conferring no right to the land itself. He considered that the personal nature of the right was emphasized by the power to revoke or cancel. (at p350)

13. The case for the applicants is that a grazing licence confers an estate or interest in land within the meaning of the Act, with the result that land the subject of such a licence is not available for claim by its traditional Aboriginal owners. It is said that the licence confers a right in the nature of a profit a prendre, the profit being the right to graze a specified number of stock on the land. (at p350)

14. The Act does not define the expression "estate or interest" which appears in the definition of "alienated Crown land" and "unalienated Crown land" in s. 3(1). However, sub-s. (2) of s. 3 should be mentioned. That sub-section, so far as material, provides:

"(2) Unless the contrary intention appears, a reference in this
Act to an estate or interest in land . . . does not include a
reference to -

(a) a mining interest;

(b) an interest arising out of the operation of the Atomic
Energy Act 1953 or any other Act authorizing mining
for minerals;

(c) an interest arising out of the taking possession, mining or
occupation of land by virtue of a miner's right; or

(d) an interest by way of the occupation or use, with the
licence or permission of the Crown, of land by an
Authority or a mission."

"Authority" means an authority established by or under a law of the Commonwealth or a law of the Northern Territory (s. 3(1)). I mention these express exclusions only to avoid misunderstanding. It might be thought that, should some analogy be capable of being drawn between a grazing licence and "an interest by way of the occupation or use" of land, that the express exclusion of the latter implied an intention to include the former within the expression "estate or interest in land". In my opinion, no such implication can be drawn. In the first place, one cannot draw an analogy between the two interests without knowledge of the precise rights attaching to a licence or permission, granted to an Authority or a mission, to occupy or use the land. In the second place, the express exclusions in sub-s. (2) are offset by their express inclusion in the term "an estate or interest in Aboriginal land" in s. 66 of the Act. In the third place, the Act makes express provision to meet the situation when an estate in fee simple is vested in a Land Trust in land which is being occupied or used by an Authority (s. 14) or by a mission (s. 18), with the licence or permission of the Crown. (at p351)

15. In Stow v. Mineral Holdings (Aust.) Pty. Ltd. [1979] HCA 30; (1977) 51 ALJR 672, at p 679, Aickin J., after noting the fact that the expression "estate or interest in land" was not defined in any Act relevant to the matter there under consideration, said:

"In my opinion the ordinary meaning of the compound
expression 'estate or interest in land' is an estate or interest of a
proprietary nature in the land. This would include legal and
equitable estates and interests, for example, a freehold or a
leasehold estate, or incorporeal interests such as easements,
profits a prendre, all such interests being held by persons in
their individual capacity."

This is the sense in which the term is to be construed in the present Act. There is no ambiguity about it, and no basis for seeking an alternative meaning such as there was in considering the meaning of the expression "on behalf of", where it appears in s. 50, in Reg. v. Ross; Ex parte Attorney-General (N.T.) [1980] HCA 2; (1980) 54 ALJR 145, at p 151 (at p351)

16. It is unnecessary to engage in lengthy consideration of the rights which have been found to constitute a profit a prendre. It is a right to enter another's land to take some portion of the soil or of its natural produce. The grant may confer an exclusive right, or it may be a right enjoyed in common with others. It may be granted either in perpetuity or for a fixed term and presumably it may by agreement be terminable on specified notice: cf. Unimin Pty. Ltd. v. The Commonwealth (1974) 22 FLR 299. The right of pasture may be the subject of a profit a prendre; the taking and carrying away is effected by means of the mouths and stomachs of the cattle in question: Megarry and Wade, The Law of Real Property, 4th ed. (1975), p. 881; Halsbury's Laws of England, 4th ed., vol. 14, par. 242; White v. Williams (1922) 1 KB 727; White v. Taylor (No 2) (1969) 1 Ch 160, at p. 177; Bromell v. Robertson (1886) 12 VLR 560. Profits are classed as incorporeal hereditaments and may be assigned. They may properly be described as interests in land. (at p352)

17. A mere licence is clearly distinguishable from a profit a prendre. "A dispensation or licence properly passeth no interest, nor alters or transfers property in any thing, but only makes an action lawful, which without it had been unlawful.": Thomas v. Sorrell [1673] EWHC J85 (KB); [1673] EWHC J85 (KB); (1673) Vaugh 330, at p 351 [1673] EWHC J85; (124 ER 1098, at p 1109). It is a personal privilege conferring no interest in the land. It is not transferable, nor can it be granted in perpetuity. It is generally revocable and merely excuses a trespass until it is revoked: Halsbury, vol, 14, par. 252. (at p352)

18. The right which is under consideration here is a statutory creation. It is more than a mere licence. The answer to the problem must be found in the view taken of the totality of the legal rights conferred by the statute set against the question, not whether a grazing licence confers a right corresponding to the common law category of a profit a prendre, but whether it is "an estate or interest in land" within the meaning of that term in the Act. (at p352)

19. I find the resolution of the issue more than ordinarily difficult. On the one hand, the licence confers a right on the licensee to graze a specified number of and type of stock on the land and this necessarily implies a right to remove certain of the natural produce of the land. The fact that it does not confer an exclusive right to possession of the land, essential as that is to distinguish a tenancy from a licence (cf. Radaich v. Smith [1959] HCA 45; (1959) 101 CLR 209), is not essential in the case of a licence of this kind. The concept of forfeiture for breach of conditions of the licence is language appropriate to an interest in land. The right of the licensee, with the permission of the Minister, to erect improvements on the land and to be secured in compensation for their value on termination of the licence emphasizes its significance yet without making a decisive contribution to the question whether it confers an estate or interest in land. Again, the grant of a licence for a period not exceeding one year is equivocal. All these features are consistent with a conclusion that a grazing licence confers an interest in the land. (at p353)

20. On the other hand, in my view, there are powerful considerations that tend to a contrary conclusion. The Crown Lands Act draws a clear distinction between estates in fee simple, leases and easements, all of which are estates or interests in land, and licences. Again, a licence is subject to cancellation unilaterally by the Minister on three months' notice. Irrevocability is an important feature of an estate or interest in land: Unimin (1974) 22 FLR, at p 308. In O'Keefe v. Williams [1910] HCA 40; (1910) 11 CLR 171, the appellant was the holder of annual occupation licences under the N.S.W. Crown Lands Act of 1884 and 1895. The licences were renewable at the option of the licensee. There was no general right of termination in the Minister. Griffith C.J. said (1910) 11 CLR, at p 191:

"As to the nature and duration of the tenure under these
licences it is sufficient for the present purpose to say that the
right of occupation is exclusive, and that the tenure is
terminable in certain defined events only. In my opinion the
substantial relation between the Crown and the holder of an
occupation licence is that of landlord and tenant."

The discretion in the Minister in the present case to terminate the licence unilaterally and more or less summarily, without compensation (save as to improvements erected with the permission of the Minister), tends strongly to deny to the licence the character of an interest in land. Furthermore, the Crown Lands Act does not contemplate, in my opinion, any assignment of the licence. It remains personal to the grantee of the licence, I say this because there is no mention of transferability in that Act or the regulations. Leases are transferable, but only with the permission of the Minister. It would be extraordinary if the legislation placed such a control on the assignment of leases while allowing grazing licences to be freely transferable without permission or even notice to the Minister. (at p353)

21. After weighing up these consideration, I have come to the conclusion that a grazing licence does not confer an estate or interest in land within the meaning of the Act. I am fortified in this conclusion by the thought that a different result would make the conduct of inquiries by the Commissioner pursuant to s. 50 much more difficult. One of the features of a grazing licence is its unpredictable duration. Unless renewed, it expires on 30 June following the grant, the renewal lies in the relatively unfettered discretion of the Minister, and it may be cancelled at any time on three months' notice, all without any default on the part of the licensee. If the existence of the Commissioner's jurisdiction is to depend upon this potentially variable state of affairs with regard to grazing licences the situation could be chaotic. He could reject part of a claim at the commencement of an inquiry as outside his jurisdiction because the land was the subject of a grazing licence only to find in the course of the inquiry that the licence had expired or been cancelled whereupon he would presumably be obliged to readmit that part of the claim and reorganize the course of the inquiry. (at p354)

22. In my opinion, therefore, the learned Commissioner was correct in holding that a grazing licence created a right to go upon Crown land to pasture stock, a right which is not capable of assignment, a right personal to the licensee for a limited time and for a limited purpose. In other words, it is a right which does not confer an interest in land. The land the subject of such grazing licences retained the character of unalienated Crown land within the meaning of the Act and the Commissioner was seized with jurisdiction to proceed as he did. (at p354)

23. I would refuse the application for a writ of prohibition. (at p354)

BRENNAN J. The Aboriginal Land Rights (Northern Territory) Act 1976 ("the Act") was enacted by the Parliament of the Commonwealth consequent upon the final Report made by the Hon. Mr. Justice A. E. Woodward under a Commission to inquire into and report upon, inter alia, the appropriate means to recognize and establish the traditional rights and interests of Aboriginals in and in relation to land. The stimulus for the inquiry was the judgment of Blackburn J., then a judge of the Supreme Court of the Northern Territory, in Milirrpum v. Nabalco Pty. Ltd. (1971) 17 FLR 141. In that case, Blackburn J. had held that the traditional rights and interests of Aboriginals in land situated on the Gove Peninsula in the Northern Territory were not capable of recognition by the common law as property or, alternatively, that no Aboriginal rights or interests in land had survived the Crown's acquisition of the radical title to the land in dispute (1971) 17 FLR, at pp 147, 198, 244, 245, 247, 252, 262, 273, 274. (at p354)

2. The long title of the Act reads:

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

The Act provides for the restoration of some areas of land within the Northern Territory to Aboriginal control and gives legislative recognition to Aboriginal rights and interests in that land. The Act does not confer or authorize the Crown to confer proprietary rights upon particular Aboriginals beneficially: Land Trusts are created to hold the title to an estate in fee simple in Aboriginal land (s. 4). "Aboriginal land" is defined by s. 3(1) to mean -

"(a) land held by Land Trust for an estate in fee simple; or

(b) land the subject of a deed of grant held in escrow by a
Land Council;"

Paragraph (a) of this definition relates to land granted pursuant to s. 12(1)(a); par. (b) relates to land granted pursuant to s. 12(1)(b). When land is granted pursuant to s. 12(1)(a), there is no estate or interest in that land outstanding in the hands of any person other than the Crown; when land is granted pursuant to s. 12(1)(b), there is such an estate or interest outstanding and the deed of grant or an estate in fee simple in held in escrow by the Land Council until all such estates and interests come to an end, whereupon the deed of grant is delivered to the Land Trust. The granting of land under the Act vests in the hands of Aboriginal Land Trusts proprietary rights which, unlike the traditional usufructuary rights which Blackburn J. held not to be property, are recognized by the common law. Those proprietary rights are carved out of the Crown's radical title. Generally speaking, the title to land which passes from the Crown under a deed of grant executed and delivered to a Land Trust under s. 12 neither impairs nor affects any estate or interest outstanding in the hands of a third person. Any such estate or interest must be acquired before a recommendation is made under s. 11(1) or must come to an end before delivery of the deed under s. 12(1)(b). A particular exception, immaterial for present purposes, was introduced by an amending Act in 1978. (at p355)

3. The Act provides for the grant of title to two classes of Crown land. The first class consists in the parcels of land described in Sch. 1 (ss. 10 and 12). That land substantially comprises the Aboriginal reserves in the Northern Territory. The second class consists in other areas of Crown land in respect of which the Aboriginal Land Commissioner has made a recommendation to the Minister under s. 50(1)(a) that that area be granted to a Land Trust (ss. 11 and 12).

The functions of the Commissioner, who is a judge of the Supreme Court of the Northern Territory (s. 53(1)), include the functions set out in s. 50(1)(a):

"(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 findings to the Minister and to the
Administrator of the Northern Territory and, where
he 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;" (at p356)

4. To understand the nature of these functions, it is necessary to appreciate the concept of "traditional Aboriginal owners", a term defined in s. 3(1). As that definition requires reference to "Aboriginal tradition", defined in the same sub-section, it is convenient first to refer to the definition of that term:

"'Aboriginal tradition' means the body of traditions, observances,
customs and beliefs of Aboriginals or of a community or
group of Aboriginals, and includes those traditions, observances,
customs and beliefs as applied in relation to particular
persons, sites, areas of land, things or relationships . . ." (at p356)

5. Aboriginal traditions, observances, customs and beliefs applied in relation to sites and areas of land are different from non-Aboriginal traditions, observances, customs and beliefs. Upon the evidence placed before him in Milirrpum, Blackburn J. commented (1971) 17 FLR, at p 167:

"As I understand it, the fundamental truth about the
(Aboriginals' relationship to the land is that whatever else it is,
it is a religious relationship."

The religious relationship of particular Aboriginal groups with their "country" (the term customarily used to describe the land with which there is a traditional connexion) invests the country of each group with a unique significance for that group. The significance to an Aboriginal group of their country was felicitously explained by the late Professor W.E.H. Stanner in his Boyer Lectures "After the Dreaming" delivered in 1968 and reproduced in the book of his essay, White Man Got No Dreaming (1979), p. 230:

"No English words are good enough to give a sense of the links
between an Aboriginal group and its homeland. Our word
'home', warm and suggestive though it be, does not match the
Aboriginal word that may mean 'camp', 'hearth', 'country',
'everlasting home', 'totem place', 'life source', 'spirit centre' and
much else all in one. Our word 'land' is too spare and meagre.
We can now scarcely use it except with economic overtones
unless we happen to be poets. The Aboriginal would speak of
'earth' and used the word in a richly symbolic way to mean his
'shoulder' or his 'side'. I have seen an Aboriginal embrace the
earth he walked on. To put our words 'home' and 'land'
together into 'homeland' is a little better but not much. A
different tradition leaves us tongueless and earless towards this
other world of meaning and significance. When we took what
we call 'land' we took what to them meant hearth, home, the
source and locus of life, and everlastingness of spirit. At the
same time it left each local band bereft of an essential constant
that made their plan and code of living intelligible. Particular
pieces of territory, each a homeland, formed part of a set of
constants without which no affiliation of any person to any
other person, no link in the whole network of relationships, no
part of the complex structure of social groups any longer had all
its co-ordinates. What I describe as 'homelessness', then, means
that the Aborigines faced a kind of vertigo in living. They had
no stable base of life; every personal affiliation was lamed;
every group structure was put out of kilter; no social network
had a point of fixture left." (at p357)

6. This explanation renders intelligible and logical the statutory definition of "traditional Aboriginal owners", a definition which reflects the spiritual and cultural significance of land for Aboriginals. The term "traditional Aboriginal owners" is defined by s. 3(1) to mean -

"a local descent group of Aboriginals who -

(a) have common spiritual affiliations to a site on the land,
being affiliations that place the group under a primary
spiritual responsibility for that site and for the land; and

(b) are entitled by Aboriginal tradition to forage as of right
over that land. . ." . (at p357)

7. Owners of land under Anglo-Australian law are understood to be vested with a bundle of rights exercisable with respect to land: (cf. per Rich J. in Minister for the Army v. Dalziel [1944] HCA 4; (1944) 68 CLR 261, at p 285. The term "traditional Aboriginal owners" has a very different connotation. A traditional right to forage is the only "right" included as an element in the definition, but even that right is not necessarily exclusive of the foraging rights of others. Foraging rights apart, the connexion of the group with the land does not consist in the communal holding of rights with respect to the land, but in the group's spiritual affiliations to a site on the land and the group's spiritual responsibility for the site and for the land. Aboriginal ownership is primarily a spiritual affair rather than a bundle of rights. (at p358)

8. Traditional Aboriginal land is not used or enjoyed only by those who have primary spiritual responsibility for it. Other Aboriginals or Aboriginal groups may have a spiritual responsibility for the same land or may be entitled to exercise some usufructuary right with respect to it. Mr. Graeme J. Neate in his article "Legal Language Across Cultures: Finding the Traditional Aboriginal Owners of Land", Federal Law Review, vol. 12 (1981), p. 187, gives some examples of the difficulties encountered in determining which group among those Aboriginals who have a connexion with a tract of country fulfils the statutory criteria of traditional Aboriginal ownership. To ascertain the existence and identity of "traditional Aboriginal owners" of land it is necessary to inquire into the spiritual affiliation with sites and spiritual responsibility for sites and land, a daunting task for one who tradition, if unexpanded by experience or research, would leave him "tongueless and earless towards this other world of meaning and significance". Yet the Commissioner is directed by s. 50(1)(a) to make that inquiry, and the Act thus requires him to evaluate the spiritual affiliations and spiritual responsibility of any local descent group of Aboriginals who may claim to be traditional owners of the land in question or who may appear to have a traditional claim to that land. (at p358)

9. However, if the Aboriginal Land Commissioner finds that "there are Aboriginals who are the traditional Aboriginal owners of the land" and recommends that land be granted in accordance with ss. 11 and 12, and if the land is granted under s. 12 and becomes Aboriginal land, any Aboriginal has or any Aboriginal group have his or their traditional rights restored - not in a form unrecognized by law, but in the form of rights conferred by statute. Subject to the proprietary rights of third parties (not being a Land Trust or an Aboriginal Council or corporation) Aboriginals are entitled to their traditional rights of entry, occupation and use with respect to Aboriginal land (s. 71). Section 71(1) provides:

"Subject to this section, an Aboriginal or a group of Aboriginals
is entitled to enter upon Aboriginal land and use or occupy that
land to the extent that that entry, occupation or use is in
accordance with Aboriginal tradition governing the rights of
that Aboriginal or group of Aboriginals with respect to that
land, whether or not those rights are qualified as to place, time,
circumstances, purpose, permission or any other factor."

The Act thus protects the exercise of those usufructuary rights which Aboriginal tradition either required certain groups of Aboriginals to exercise or allowed certain groups to enjoy with respect to land. (at p359)

10. The usufructuary rights of Aboriginals in respect of Aboriginal land, once acquired, might be overridden by the granting of a lease or licence by a Land Trust (s. 19(3)), or by a surrender of that land to the Crown (s. 19(4)), but any of those events requires the approval of the traditional Aboriginal owners, and of any Aboriginal community or group that might be affected thereby (s. 19(5)(a) and (b)). The Aboriginal people connected with a tract of country were thus made competent to use their country in a non-traditional way if and when an Aboriginal consensus to do so should be established. (at p359)

11. This brief conspectus of some of the provisions of the Act reveals the nature of the Commissioner's function. His inquiry is a step in the restoration of land to Aboriginals who have retained their Aboriginal traditions with respect to that land, and the inquiry which he makes is for the purpose of determining whether the primary criterion for the granting of Crown land other than Schedule 1 land is fulfilled. That criterion - the existence of traditional Aboriginal owners - is a test of need as much as it is a test of entitlement. The strength of the putative traditional owners' spiritual affiliation and responsibility is the measure of the extent to which the deprivation of that land would leave or has "left (the) local band bereft of an essential constant that made their plan and code of living intelligible". (at p359)

12. As Aboriginal tradition within a local descent group is eroded or renewed with the passing of time, so the strength of the group's spiritual affiliations to sites on their land and their spiritual responsibility for those sites and for that land may wane or wax. When spiritual affiliation and spiritual responsibility are the determinants of traditional Aboriginal ownership, a finding of ownership necessarily involves an evaluation of the strength of that affiliation and responsibility. Thus it is that s. 50(3) provides, inter alia, that "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 . . . ." The Commissioner is therefore bound to find whether the local descent group's spiritual affiliation with its sites and responsibility for those sites and for its land has remained so strong or has had its strength so renewed that it is right to regard that group as traditional Aboriginal owners. It is implicit in a finding of traditional Aboriginal ownership that the local descent group would be deprived of a "stable base of life", culturally and socially, if they were not permitted their traditional access to and use of the land. A finding of traditional Aboriginal ownership determines that, as between the local descent group and the Crown, it is right that a grant be made. And so s. 50(1)(a)(ii) directs the Commissioner, where he makes a finding "that there are Aboriginals who are the traditional Aboriginal owners of the land", to recommend the grant of the fee simple in that land so as to permit them to have access to and to use that land in accordance with Aboriginal tradition and to do so as of legal right. In that way, the law recognizes the traditional rights of Aboriginals with respect to Aboriginal land - chiefly the rights of the local descent group, but the rights of other Aboriginals also. (at p360)

13. In the present case, the Commissioner (Toohey J.) found that there are traditional Aboriginal owners of Crown land situated in the Finniss River area in the Northern Territory and he made a recommendation pursuant to s. 50(1)(a)(ii) that certain land, described in par. 267 of his Report, be granted to two Land Trusts in accordance with ss. 11 and 12. However, the applicants submit that his Honour declined and failed to take into account in making his recommendation the detriment to persons including the applicants that might result if the Land Claim were acceded to in whole or in part. The applicants' argument is based on the direction contained in s. 50(3) in the words immediately following those cited above. It is provided that the Commissioner, in making a report -

"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." (at p360)

14. It is not said that the Commissioner failed to comment upon these matters in his Report, but that he failed to take them into account in making his recommendation. If the Commissioner were required or entitled to have regard to these matters in making his recommendation, his function would be very different from the function of determining whether there is a local descent group whose traditional attachment to the land makes it right that a grant of land be made. The factors referred to in pars. (a) to (d) of s. 50(3) are factors which are relevant to a political decision, a decision which has regard to all circumstances relevant to the question whether a grant should be made. The political decision and the administrative action required to implement it are functions reposed in the Minister by s. 11(1). That sub-section provided:

"Where -

(a) the Commissioner recommends to the Minister in a
report made to him under paragraph 50(1)(a) that an area
of Crown land should be granted to a Land Trust for the
benefit of Aboriginals entitled by Aboriginal tradition to
the use or occupation of that area of land, whether or
not the traditional entitlement is qualified as to place,
time, circumstance, purpose or permission; and

(b) the Minister is satisfied that the land or any part of the
land should be granted,

the Minister shall -

(c) establish a Land Trust under section 4 to hold that land
or that part of that land for the benefit of such
Aboriginals;

(d) where that land, or that part of that land, is, or includes,
alienated Crown land, ensure that the estates and
interests in that alienated Crown land of persons (other
than the Crown) are acquired by the Crown by surrender
or otherwise; and

(e) after any acquisition referred to in paragraph (d) has
been effected, recommend to the Governor-General that
a grant of an estate in fee simple in that land or that part
of that land be made to that Land Trust." (at p361)

15. In making his decision, the Minister needs to have knowledge of the several matters referred to in pars. (a) to (d) of s. 50(3). He needs to have knowledge of other Aboriginals who would become entitled under s. 71 to access to and use of the land if a grant were made (par. (a)), of any countervailing detriment to others (par. (b)), of the effect of a grant on existing or proposed land usage (par. (c)) and of the likely cost involved in getting in estates or interests outstanding in the hands of third parties (par. (d) and see s. 11(1)(d). These matters are of concern to Aboriginals other than the local descent group, to others who wish to have access to or use of the land (e.g., miners or graziers), to the Government of the Nothern Territory and to the owners of any estate or interest which might be acquired pursuant to s. 11(1)(d). The Commissioner can, usefully and appropriately, be asked to ascertain the facts relating to these matters and to comment upon them in the light of the knowledge he has necessarily acquired and the sensitivities he has necessarily developed in the course of his duties. (at p361)

16. But the weighing of the considerations specified in sub-s. (3) and of all other relevant considerations in deciding whether a grant should be made is appropriately a matter for a Minister, not for a judge - particularly when the question for decision is pregnant with political controversy. (at p362)

17. Section 50(3) distinguishes between the Commissioner's approach to the strength of traditional attachment by the claimants to the land claimed and his approach to the matters referred to in pars. (a) to (d). He is directed to have regard to the former, and to comment on each of the latter. The difference in language rightly reflects the difference between the recommendation which the Commissioner is to make under s. 50(1) and the recommendation which the Minister is to make under s. 11(1). The Minister's recommendation is not a mere affirmation or rejection of the recommendation made by the Commissioner. The Minister, having regard to the Commissioner's recommendation that it would be right for the Crown to grant the land in satisfaction of the traditional owner's needs and entitlement, must decide whether other factors warrant refusing the grant recommended, and in reaching his decision the Minister is bound to have regard also to the Commissioner's comments upon the matters referred to in pars. (a) to (d) of s. 50(3). (at p362)

18. In commenting, the Commissioner is required to have regard to the principles expressed in s. 50(4):

"In carrying out his functions the Commissioner shall have
regard to the following principles:

(a) Aboriginals who by choice are living at a place on the
traditional country of the tribe or linguistic group to
which they belong but do not have a right or entitlement
to live at that place ought, where practicable, to be able
to acquire secure occupancy of that place;

(b) Aboriginals who are not living at a place on the
traditional country of the tribe or linguistic group to
which they belong but desire to live at such a place
ought, where practicable, to be able to acquire secure
occupancy of such a place."

These principles affect the interests of a wider group of Aboriginals than the local descent group, for the tribe or linguistic group comprehends more than one local descent group, or may do so. If the Commissioner recommends a grant of land pursuant to s. 50(1), however, the grant of that land may afford to the tribe or linguistic group to which the traditional Aboriginal owners belong a place where they may live, secure in their occupancy of that place. In commenting, the Commissioner should have regard to that fact. (at p362)

19. The direction given to the Commissioner by s. 50(4), though expressed generally, is not susceptible of application to the carrying out of a function which must be performed in a particular way irrespective of the principles. For example, the function of establishing and maintaining a register of traditional land claims (s. 50(1)(c)) could not be affected by the principles. Nor could the function of recommending a grant under s. 50(1)(a)(ii). Under that provision, the Commissioner is directed to make a recommendation "where he finds that there are Aboriginals who are the traditional Aboriginal owners of the land", so that the finding brings the recommendation in its wake irrespective of the principles set out in s. 50(4). However, the Commissioner must have regard to those principles in making his comments for the Minister's consideration. (at p363)

20. The Commissioner performed the functions entrusted to him by s. 50 in accordance with the opinion he expressed in pars. 244 to 255 of his Report. Paragraph 253 sets out his Honour's approach to his function under s. 50:

"In my opinion the Commissioner's function is to determine
questions concerning traditional ownership and the strength of
attachment to the land, to make an evaluation of the evidence
concerning those other matters set out in s. 50(3) and leave the
resolution of competing interests to government, by such
criteria as are thought to be relevant in the light of that
evaluation."

His Honour correctly conceived the function which he was performing in making his recommendation, and no error appears to support the applicants' challenge to the recommendation or to the action which the Minister may take to implement it. The application for a writ of mandamus directing the Commissioner to exercise according to law the functions imposed upon him by s. 50 in relation to the Finniss River Land Claim therefore fails. (at p363)

21. The applicants seek also a writ of prohibition directed to the Minister prohibiting him from proceeding further upon the Commissioner's recommendation for the granting of the land described in par. 267 of the Commissioner's Report, and particularly from implementing the recommendation so far as it relates to lands the subject of certain grazing licences upon the ground "that the lands the subject respectively of the said grazing licences were not at any material time unalienated Crown land within the meaning of the Act and that accordingly neither did the (Commissioner) have any jurisdiction or power to make any recommendation for the grant of the said lands under the Act nor does the (Minister) have any power or authority to make any such grant". Of course, the Minister does not have power to make a grant: that power is vested in the Governor-General (s. 12). But the substance of the applicants' objection may be applied, mutatis mutandis, to the exercise of the Minister's powers under s. 11. The substance of the objection is that a grazing licence granted pursuant to s. 107 of the Crown Lands Act 1931 (N.T.) is a proprietary interest in land in the nature of a profit a prendre, and is therefore "an estate or interest" in land within the meaning of that phrase in the definitions of "unalienated Crown land" in s. 3(1) of the Act. If the application had been made in respect of land which was not unalienated Crown land, so the argument ran, a condition affecting the Commissioner's jurisdiction under s. 50(1)(a) was not fulfilled. (at p364)

22. For the reasons stated by Mason J., which I have had the advantage of reading, I am of the opinion that grazing licences granted pursuant to s. 107 of the Crown Lands Act are not proprietary interests. (at p364)

23. I would therefore dismiss the application both for the writ of mandamus and the writ of prohibition. (at p364)

ORDER

Application for a writ of mandamus and a writ of prohibition refused with costs.