Case: Re Toohey; Ex parte Stanton (1982) 44 ALR 94
Outcome: discussed
distribution between those two categories was recognised by Brennan J in Meneling Station at 358 and 360; by Wilson and Brennan JJ in Re Toohey; Ex parte Stanton (1982) 44 ALR 94 ( Stanton ) at 100 and 104 respectively; and by the Full Court in Northern Land Council v Olney at 479. It emerges clearly enough from provisions of the ALRA: see e.g. ss 23(1)(b), (c) and (e), and s 71. As the contentions of the Malak Malak point out, the Committee report does not explicitly refer to that broader category. On the other hand, Wilson J (with whom Gibbs CJ and Mason J agreed) in Stanton at 98-99, when addressing the then appellants' complaint that their respective claims were not separately addressed on their merits, said: 'It is implicit in Mr Castan's submission that the Act contemplates that there may be more than one local descent group of Aboriginals who satisfy the description of traditional Aboriginal owners in respect of the same area of land. Such a construction of the Act would, in my opinion, be somewhat surprising, having regard to the definition of such traditional ownership, which requires the group, inter alia , to 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". It is difficult to contemplate two opposing groups, each of whom are placed at the same time under a primary spiritual responsibility for the same site and the same land. Certainly the claimants in this case each claimed traditional ownership to the exclusion of the other. In fact, the claims were not only competing, but mutually exclusive ...' The primary submission was rejected, so that those observations are not binding. It does not appear that the particular issue was argued in that case. In my judgment, there is nothing in the ALRA which indicates that, in appropriate factual circumstances, there may not be more than one local descent group which can comprise the traditional Aboriginal owners of certain land. Indeed, if it be accepted that there is not, or not always, a sharp line defining the boundaries of country between neighbouring Aboriginal groups, it would seem to follow that there is in the 'overlap' country the prospect of each of those groups having common spiritual affiliations with that country or sites within it and having a primary spiritual responsibility for those sites. I do not think that Stanton , upon which the Malak Malak rely, necessarily supports the contention. I have referred above to the relevant passage from the judgment of Wilson J (with whom Gibbs CJ and Mason J agreed). Reliance was also placed on the observations of Brennan J at 104 where his Honour said: 'Thirdly, it is submitted that the Commissioner ought to have ascertained whether the Maranunggu people on the one hand and the Kungarakany and Warai peoples on the other were all traditional Aboriginal owners of area 1 and part of area 2. Clearly enough, the facts upon which the two groups respectively relied were inconsistent with both groups being the traditional Aboriginal owners. The Commissioner noted that each of the two groups was asserting, to the exclusion of the other, traditional ownership of the land ... He found in favour of the Maranunggu claim. The Commissioner explicitly rejected the Kungarakany claim in respect of area 1 (para 192) and area 2 (para 207). There is no substance in this ground.' It is apparent his Honour concluded that the relevant finding of the Aboriginal Land Commissioner that one of the competing groups was the traditional Aboriginal owners of the particular country in dispute was not infected with reviewable error. I do not think it excludes the possibility of there being two groups of traditional Aboriginal owners, or that in all circumstances where there are competing groups making exclusive claims there cannot as a matter of law be found to be two groups of traditional Aboriginal owners. The so called exclusive claims of the Malak Malak and the Kamu in relation to particular sites in the Land Trust area must be seen in context. Although they were competing claims, the findings in the Toohey Report indicate that the basis of the Malak Malak claim to ownership of certain sites was passed on by Mrs Pan Quee on behalf of the Kamu. This is not a case where it had been found that the Kamu at no point in time had ownership of any of the disputed areas. The NLC was required to fulfil its role under the ALRA, and established the Committee for the better performance of that function. The Committee concluded differently from the Toohey Report, that the Kamu continued to exist as a local descent group. It was then required to determine whether the Malak Malak or the Kamu or both satisfied the characteristics in the definition of 'traditional Aboriginal owners'. There is nothing which, as a matter of law, obliged the Committee then to ignore its findings (which were positive in respect of the shared sites in the case of both the Malak Malak and the Kamu), or to find one or other group had a greater 'primary spiritual responsibility' than the other, or in some other way to conclude that despite both groups satisfying the definition in respect of particular sites one or other or neither of them should be so recognised. The consequences of their respective recognition as traditional Aboriginal owners in respect of particular sites is then simply governed by other provisions of the ALRA. I do not accept that, by recognising two groups of traditional Aboriginal owners of particular sites, the determination of rights or their implementation would be frustrated. The NLC has certain consultation obligations with traditional Aboriginal owners, and with other Aboriginal persons in certain circumstances. The fact that the consent of the traditional Aboriginal owners is also required in respect of some proposed decisions (e.g. under ss 19(5)(a) and 46 (6)) will not be impeded, although practically it may be more difficult. In respect of any groups of traditional Aboriginal owners, s 77A provides how the consent may be taken to have been given in the case of intra-group disputes. But if as a fact (as here found) there are in respect of a particular site two groups of traditional Aboriginal owners, then the consent of each group will need to be obtained where such consent is required by the Act. That is, in my view, consistent with the beneficial purposes of the Act as it gives each of the groups of traditional Aboriginal owners the 'ownership' or control of decision-making through the processes the ALRA contemplates.