Attorney-General (NT) v Hand [1991] HCA 17; (1991) 172 CLR 185 (22 May 1991)

HIGH COURT OF AUSTRALIA

ATTORNEY-GENERAL (N.T.) v. HAND [1991] HCA 17; (1991) 172 CLR 185

F.C. 91/014

Aboriginal Lands

High Court of Australia

Mason C.J.(1), Deane(1), Toohey(1), Gaudron(1) and McHugh(1) JJ.

CATCHWORDS

Aboriginal Lands - Traditional land claims - Recommendation that land be granted to Land Trust - Land occupied by Crown as research station - Crown obliged to pay rent unless occupation for community purpose - Whether research station purpose community purpose - Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), ss. 3 "community purpose", 14(1), 15.

HEARING

1991, March 6, May 22. 22:5:1991

APPEAL from the Federal Court of Australia.

DECISION

MASON C.J., DEANE, TOOHEY, GAUDRON and McHUGH JJ. The Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("the Act") is expressed in its long title to be "An Act providing for the granting of Traditional Aboriginal Land in the Northern Territory for the benefit of Aboriginals, and for other purposes". The scheme of the legislation has been discussed in a number of decisions of this Court: see, for instance, The Queen v. Toohey; Ex parte Attorney-General (N.T.) (1980) 145 CLR 374; The Queen v. Toohey; Ex parte Meneling Station Pty. Ltd. [1982] HCA 69; (1982) 158 CLR 327; The Queen v. Kearney; Ex parte Northern Land Council [1984] HCA 15; (1984) 158 CLR 365; The Queen v. Kearney; Ex parte Japanangka [1984] HCA 13; (1984) 158 CLR 395; The Queen v. Kearney; Ex parte Jurlama [1984] HCA 14; (1984) 158 CLR 426.

2. The present appeal concerns a fairly narrow aspect of the legislation, though, to explain how the issue arises, some reference to the wider scheme is called for.

3. The Act provides for the establishment of Aboriginal Land Trusts:

"to hold title to land in the Northern Territory for the

benefit of Aboriginals entitled by Aboriginal tradition to

the use or occupation of the land concerned, whether or not

the traditional entitlement is qualified as to place, time,

circumstance, purpose or permission": s.4(1).

the Act. Otherwise, Land Trusts are established to give effect to acceptance by the federal Minister for Aboriginal Affairs of a recommendation by the Aboriginal Land Commissioner 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 or land, whether or not the traditional entitlement is qualified in the sense referred to in s.4(1): see generally s.50, read with s.11.

4. By reason of s.14(1) of the Act:

"Where, on the vesting in a Land Trust of an estate in fee

simple in land, the land is being occupied or used by the

Crown or, with the licence or permission of the Crown, by

an Authority, the Crown or the Authority is entitled to

continue that occupation or use for such period as the land

is required by the Crown or the Authority."

5. A reference in the Act to "the Crown" is a reference to the Crown in right of the Commonwealth or the Northern Territory or both, as the case requires: s.3(6). "Authority" means an authority established by or under a law of the Commonwealth or a law of the Northern Territory: s.3(1).

6. The purpose of s.14(1) of the Act is clearly to protect occupation and use by the Crown or an Authority so long as that occupation or use is required, although otherwise the effect of vesting the land in a Land Trust would be to terminate that occupation or use. During the period of statutory entitlement to occupation or use, all buildings and improvements on the land "shall be deemed to be the property of the Crown or the Authority": s.14(2).

7. As compensation for this continued occupation or use of Aboriginal land, the Crown (or the Authority) is obliged to pay to the Land Council for the area in which the land is situated "amounts in the nature of rent for that occupation or use at such rate as is fixed by the Minister having regard to the economic value of the land": s.15(1). Payment is made to the relevant Land Council rather than to the Land Trust in which the land is vested because the Act entrusts to each Land Council the "management" of Aboriginal land within its area: see s.23. The Land Council is obliged to pay an amount equal to the rent "to or for the benefit of the traditional Aboriginal owners of the land": s.35(4).

8. The obligation to pay rent under s.15(1) is imposed by that sub-section only where the occupation or use "is for a purpose that is not a community purpose". It is those words that have given rise to this appeal. Before turning to the facts of the case, it should be noted that s.3(1) defines "community purpose" to mean "a purpose that is calculated to benefit primarily the members of a particular community or group".

9. On 31 March 1989 Olney J., as Aboriginal Land Commissioner, reported on the Kidman Springs/Jasper Gorge Land Claim. The claim was to three areas of land. The Commissioner recommended a grant of two areas, on one of which stands the Victoria River Research Station which is conducted by the Northern Territory Government. In his report the Commissioner was required to comment on any detriment that might result from a grant of land to a Land Trust, including the area occupied by the Research Station. Section 50(3)(b) of the Act requires the Commissioner, in making a report on a traditional land claim, to comment on:

"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".

10. Although before the Commissioner and the Full Court of the Federal Court there was a question as to whether the Commissioner was right in his approach to the extent of his obligations under s.50(3)(b), so far as concerned the Research Station, there was no such question before this Court. There was no challenge to the view the Commissioner took in his report of the implications of s.50(3)(b) of the Act.

11. Because the occupation or use of the land by the Northern Territory Government was protected by s.14(1), the detriment likely to arise from a grant of land to a Land Trust was any rent the Crown in right of the Northern Territory was obliged to pay for its continued occupation or use, being rent that it was not obliged to pay while the land remained Crown land. Whether there was an obligation to pay rent depended on whether the occupation or use was "for a purpose that is not a community purpose". If the occupation or use was for a community purpose, no rent was payable, hence no detriment could arise to the Crown in that regard.

12. Before the Full Court submissions were directed at the question whether it was possible to identify "a particular community or group" to which "a community purpose" might be attached within the terms of s.15(1). The respondents contended that, however the activities of the Research Station might be described, it was just not possible to find in them a purpose calculated to benefit primarily the members of a particular community or group. The appellant disputed this contention though his counsel had some difficulty in defining the group, except as pastoralists in the Northern Territory. As the argument developed before us, the respondents added another string to their bow, contending that there could be no particular community or group for the purpose of determining a community purpose unless its members were in the main Aboriginals. To some extent this argument was put as one of the proper construction of the Act, in particular, construction of "community purpose". But in the end it was offered as an inevitable consequence of the way in which the Act operates.

13. In dealing with these matters, it may be enough to refer to "group" rather than "community or group", for, if any qualifying number of persons is to be found, it is more likely that those persons will constitute a group rather than a community. The latter term suggests persons who are gathered in a particular locality; it carries with it a sense of place. In that sense, it is not possible to say of pastoralists in the Northern Territory that they constitute a particular community. See generally the definition of "community" in The Oxford English Dictionary, 2nd ed (1989), vol 3, pp 581-582; The Macquarie Dictionary, 2nd rev ed (1987), p 380. The former work defines "group" inter alia as an "assemblage of persons ... standing near together, so as to form a collective unity", a "number of persons ... regarded as forming a unity on account of any kind of mutual or common relation, or classed together on account of a certain degree of similarity": vol 6, p 887. The latter speaks of "any assemblage of persons or things": p 776. Both terms indicate a cohesiveness in the persons said to constitute the community or group. The need for cohesiveness is strengthened by the qualifier "particular", making it clear, as the Full Court observed, that "Parliament did not have in mind the whole of the Australian, or Northern Territory, community; but rather a specific section of it".

14. The conclusion of the Full Court was that "the words of the definition are not intended to cover a group of persons as loosely defined and geographically scattered as 'pastoralists'". With that conclusion we agree and the appellant's case is not advanced by some limitation such as pastoralists in the semi-arid zone. The activities of the Research Station are designed to improve husbandry within the cattle industry. Its work benefits pastoralists wherever they may be, though it is financed and managed by the Northern Territory Department of Primary Industry and Fisheries. Those who benefit may be individuals or companies; they may be absentee owners or those who are directly involved in the day-to-day running of their stations; they may be managers or other employees. While the issue is not resolved by the use of labels, the expression "cattle industry" does give a reasonably accurate guide to what is involved in the work of the Research Station, making it quite impossible to say that the purpose for which the land is occupied or used is calculated to benefit primarily the members of a particular community or group.

15. This conclusion makes it unnecessary to consider the respondents' further submission that a community purpose is one calculated to benefit primarily Aboriginals having a traditional entitlement to the use or occupation of the land in question. But, as the issue is one of importance in the operation of the Act, we shall say something about it.

16. The Act uses the expression "Aboriginal community or group" (or the plural) on a number of occasions: ss.19(5)(b), 23(3)(b), 35(1)(b), 35A, 41(7), 42(2)(b), 46(4)(b), 48A(4)(b) and 68(2)(b). Speaking generally, these provisions relate to Aboriginal land and are designed to ensure that a Land Council, within whose area Aboriginal land falls, does not deal with that land in any way without consulting and having regard to the interests of any Aboriginal community or group that may be affected by any action taken by the Land Council with respect to that land. Such a community or group will ordinarily be one having a traditional entitlement to the use or occupation of the land.

17. The deliberate use of the qualifying term "Aboriginal" in the provisions just mentioned makes it very hard indeed to conclude that, when the Act speaks only of a "particular community or group", the qualification is nevertheless intended. Such a conclusion is even harder to reach when it is seen that s.19(2)(c) speaks expressly of "any community purpose of the Aboriginal community or group for whose benefit the Land Trust holds the land" and that s.50(3)(b) requires the Commissioner to comment on "the detriment to persons or communities including other Aboriginal groups (that is, other than the claimants) that might result if the claim were acceded to either in whole or in part". The Act does not with any consistency give "community or group" a meaning that would justify a conclusion that only an Aboriginal community or group is intended. For that reason we do not accept the argument that, as a matter of construction of the Act, the expression "community purpose" in s.15(1), as defined in s.3, means a purpose calculated to benefit an Aboriginal community or group.

18. Nevertheless, in practice that is likely to be the case. The land the subject of a traditional land claim is unalienated Crown land. The Commissioner may not recommend a grant of land unless satisfied that there are "traditional Aboriginal owners" of the land. That means a local descent group of Aboriginals who have common spiritual affiliations to a site on the land that place the group under a primary spiritual responsibility for the site and the land and who are entitled by Aboriginal tradition to forage as of right over the land: see the definition of "traditional Aboriginal owners" in s.3. And Land Trusts are established for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of the land: s.4(1). It is probable that a particular community or group which benefits from a purpose for which the land has been occupied or used by the Crown will be a local Aboriginal community or group, even though some non-Aboriginal persons may benefit. By way of illustration, a school may be set up primarily to teach Aboriginal children in the area but is attended by children of the local police officer, storekeeper or community adviser who, as it happens, are not Aboriginal. If a local Aboriginal community or group is the principal beneficiary of the occupation or use of the land by the Crown or an Authority, it is not surprising that rent is not payable by the Crown to the Land Council for the continued occupation or use of the land. The community or group is likely to comprise traditional Aboriginal owners of the land or those entitled by Aboriginal tradition to the use or occupation of the land.

19. It remains only to mention s.15(2)(a) of the Act which provides that for the purposes of sub-s.(1):

"an occupation or use of land by the Crown for forestry

purposes shall be deemed to be an occupation or use for

a purpose that is not a community purpose".

The provision has its origin in the first report of the Aboriginal Land Rights Commission (1973) which, at par.199, reads:

"Since 1961 it has been government policy to investigate

and develop forest resources on Aboriginal reserves.

Royalties, after deduction of 50% for developmental costs,

have been paid to the Aborigines Benefits Trust Fund in

accordance with Section 21 of the Northern Territory

(Administration) Act 1910-1968."

The purpose of taking land used by the Crown for forestry purposes out of the concept of community purposes is to ensure the continuation of royalties for which the Act does not relevantly provide.

20. The Full Court was correct in its conclusion that the land on which the Research Station stands is not being occupied or used for a community purpose within the meaning of the Act. The appeal must be dismissed.

ORDER

Appeal dismissed with costs.