Howie, Ross --- "Mr Justice Toohey Ends Term as Aboriginal land Commissioner" [1982] AboriginalLawB 35; (1982) 1(4) Aboriginal Law Bulletin 14

Mr Justice Toohey Ends Term as Aboriginal land Commissioner

by Ross Howie

The term of Mr Justice Toohey as Aboriginal Land Commissioner ended on 30 April 1982. He had been appointed on 7 April 1977. In his five years as first Commissioner under the Aboriginal Land Rights (NT) Act 1976 (Cth.), Justice Toohey heard and reported upon fourteen land claims: Borrorloola, Walpiri, Alligator Rivers 2, Darguragu Gurindji, Limmin Bight, Kaytej Warlpiri, Alyawarra, Uluru, Yingawunarri Mudbura, Utopia, Willowra, Finniss River, Warlmanpa Warlpiri and Roper Bar. He also heard jurisdictional arguments on the Kenbi claim and some closure of the seas applications. His reports are an impressive and significant achievement. The new Aboriginal Land Commissioner is Mr Justice W.J.F. Kearney who before his recent appointment as a Judge of the NT Supreme Court was Deputy Chief Justice of Papua New Guinea. Justice Kearney's appointment as Land Commissioner is for a period of three years.

Justice Toohey was the first holder of a unique judicial office. There were no precedents to guide him as to how the hearing of traditionall land claims should proceed. He established those procedures rationally, sensitively and with appropriate simplicity. The applicants in the first claim in which I appeared wished their claim to be heard on their own land at Utopia Station. They gave their evidence to the Judge seated in the dirt in the shade of a tree. It was hard not to be impressed by the Judge's negotiating cheerfully with an old man to share the trunk of the only tree as a back-rest. I wondered how many holders of judicial office would have been prepared to do that, or to make the demanding journeys necessary to view sites.

The Act required Justice Toohey to grapple with complex anthropological concepts about which anthropologists differed. He approached these issues with a genuine interest. He brought that same interest to the hearing of claims, along with great patience. He recognised the deeply serious nature of the disclosure of ritual matters by Aboriginal witnesses and was able to avoid the almost inevitable paternalism. His low-key approach subdued issues that fired passions, but Justice Toohey was not insensitive to historical injustice. He kept out of the arena properly belonging to counsel and treated all with complete fairness and courtesy.

It is not only a matter of giving credit where credit is due, but it is not difficult to imagine a judge behaving differently. Justice Toohey has provided an exemplary guide as to how the job should be done.

There can be no doubt that the Aboriginal Land Rights (NT) Act 1976 has dramatically altered the lives and hopes of many Aboriginals in the Territory. The Act is working and giving justice, at least to some Aboriginal people. Mr Justice Toohey has played a significant and critical role in that process.