Case: Tapgnuk v Northern Land Council (1996) 5 NTLR 109
Outcome: discussed
the Deed of Grant was made, the Kamu made representations to the NLC. They did so because the NLC is required by s 23 and 24 of the ALRA to determine who are the 'traditional Aboriginal owners' of land that has been the subject of a grant under the ALRA: see Tapgnuk v Northern Land Council (1996) 5 NTLR 109 ( Tapgnuk ). They said their traditional ownership in the eastern part of the claim area had not been recognised. They challenged the Commissioner's findings that the Malak Malak were the traditional owners of the land granted, and the findings that as a group of people the Kamu no longer existed. The NLC's function under ss 23 and 24 of the ALRA is a significant one. It accepts that, in performing its function, it must comply with the rules of procedural fairness. It endeavoured to do so by adopting an adjudicative process (described below) including hearing evidence and submissions from the Malak Malak and from the Kamu. The dispute between the Malak Malak and the Kamu could not be resolved informally. The NLC therefore established the Committee to make findings and recommendations in relation to the traditional ownership of the disputed part of the land contained within the Land Trust. In Tapgnuk, Angel J expressly declined to declare that the NLC was bound by the findings in the Toohey Report in exercising its function of determining who are the traditional Aboriginal owners of the land in the name of the Land Trust. The application by or on behalf of the Malak Malak to have the NLC reject the claimed interest of the Kamu in part of that land was unsuccessful. The NLC had to make its own decisions as to who the traditional owners were at a relevant time. His Honour at 114-115, in reaching that conclusion, considered the obligation on the NLC under s 23(3) to have regard to and to consult with 'the traditional Aboriginal owners (if any) of the land' as indicating a legislative intention that the NLC should form its own view on that matter. Otherwise (apart from Schedule 1 land) the words 'if any' would be otiose. Section 24 empowering the NLC to compile a register of the traditional Aboriginal owners, in Angel J's view at 115-116, fortified that conclusion by the use of the words 'in the opinion of the Council'. At 117, Angel J said: 'The initial starting point, for both the Commissioner and the Land Council, must be the definition of "traditional Aboriginal owner" (and all that it incorporates) within s 3(1) of the Act. As a consequence the same considerations that a Land Commissioner applies must be applied by the Council. Providing the Council forms its opinion in accordance with law, it is entitled to form a contrary view to the Land Commissioner. Such a contrary view could only be formed in limited circumstances; if traditional Aboriginal owners change through succession over time; if the Land Commissioner failed to identify all the traditional Aboriginal owners; or, if the Land Commissioner's inquiry was seriously flawed in some material respect.' I agree with the submission that his Honour's use of the word 'could' in that passage should be understood as meaning only that, in a practical sense, a different factual decision on the composition of the traditional Aboriginal owners will only be made following a report of the Aboriginal Land Commissioner in the rare type of circumstances to which his Honour referred. As its title indicates, the claim area concerned part of the area through which the Daly River runs in a roughly north-westerly direction towards the coast. The Toohey Report includes two maps, one of which identifies the many sites of significance within the area of the land grant. The eastern portion of the claim area includes two sites (numbered 146 and 47) in respect of which the key person is said to be Kitty Pan Quee. Mrs Pan Quee was recognised in the Toohey Report as a surviving Kamu person. The map comprising part of the Committee Report reveals that the contentious sites Jirigij (Jugirij), Jebenyi, Kabamal (Kabumal), Ngulukmoenet, Coppermine Graves, Ngalyuwuy, and the Mt Hayward area in the vicinity of Wani-Alawun are in the central eastern or upper eastern part of the land trust area, as is the site Durk Koen. The Toohey Report at [16] recognised that the Malak Malak not only identify themselves and distinguish themselves from other tribunal or linguistic groups, but do so to emphasise that they are the traditional Aboriginal owners of the land because they are Malak Malak. It also recognised at [20] that the position of the Kamu is 'crucial' to the claim, as there was evidence that Kamu country used to run from upstream of the Daly River roughly in the eastern section of the claim area. The thesis with which Justice Toohey was presented in evidence was that by 1932 the Kamu dialect was practically extinct, that by about that time the Malak Malak (a group comprising the integration of the Malak Malak and the Madngele people) had taken over responsibility for the former Kamu area, and that Mrs Pan Quee had said that she wanted the Malak Malak to look after the former Kamu area but preserving only hunting and foraging rights for herself. The Committee identified its task as applying the statutory definition of 'traditional Aboriginal owners' to the material presented to it, including the evidence of the Aboriginal people themselves, to decide whether the Kamu or the Malak Malak are the traditional owners of the disputed country. In doing so, it said it followed the guidance of Angel J in Tapgnuk at 117. It said it would give 'proper weight and respect to the findings' in the Toohey Report. The Committee noted at [32] that some 20 years had elapsed since the Toohey Report, and that over that time the circumstances of the Aboriginal people concerned have changed significantly. It noted at [32] that the core Malak Malak people now are Albert Myoung and his five sisters, all of whom reside on the Land trust area and all of whom speak Malak Malak and know a lot about the area. The Committee noted at [33] that the Kamu, the core element being Mrs Pan Quee's children and grandchildren, have since the Toohey Report sought to be recognised as the traditional Aboriginal owners of the eastern part of the Land Trust land. They acknowledge that Mrs Pan Quee told Justice Toohey that she was giving the Kamu land to the Malak Malak, but they dispute that they thereby (or otherwise) ceased to be its traditional Aboriginal owners. They do not live on that land, but since the Toohey Report have visited and camped there including in rudimentary buildings for lengthy periods. The Kamu language is no longer spoken, but the Kamu (in particular Marjorie Foster one of the five sisters and her children) profess a strong sense of identity as Kamu and as Aboriginal people associated with Kamu country in the Daly River region and are likely to pass it on in turn to their children. Once it was accepted that the Committee was obliged to address the competing claims of the Malak Malak and the Kamu under the ALRA and was not bound to adopt the conclusions in the Toohey Report (in accordance with the decision of Angel J in Tapgnuk ), the Committee had to determine, among other things, whether the Kamu were a 'local descent group' who had common spiritual affiliations to a site or sites in the Land Trust area. Its abbreviated expression simply reflects its findings on that matter a matter required to be addressed by the ALRA and its findings that, in respect of some sites, within the Land Trust area, the Malak Malak also had common spiritual affiliations to certain of the same sites. I do not consider that its approach to the question posited by the definition of 'traditional Aboriginal owners' in the ALRA was infected by some misplaced pre-conception about how that task should be carried out. The Committee has identified the correct question. It has had regard to the evidence. And it has reached a conclusion on the issue it was required to address, and explained how it came to that conclusion. Although the Malak Malak did not contend that the Committee could not use its general knowledge and experience, and did not contend (subject to the first mentioned contention above, which I have rejected) that as a matter of fact there could never be shared country between Aboriginal groups at the margins of neighbouring country, they nevertheless criticised the evidence identified in the Kamu submissions that in fact there was certain shared country between the Malak Malak and the Kamu. They did so because the evidence referred to was evidence also before Justice Toohey, but had not led to a conclusion in the Toohey Report that the Kamu continued to exist as traditional Aboriginal owners of part of the Land Trust area. I do not consider that criticism demonstrates any reviewable error on the part of the Committee. There was clearly such evidence before Justice Toohey. I do not need to refer to it. But the Committee was required to come to its own conclusions, and it did so having regard not only to the evidence before Justice Toohey (and the conclusions in the Toohey Report) but also to the additional evidence which it received and to which it referred. That further evidence went to the existence of the Kamu as a local descent group, and to that group's common spiritual affiliations with certain sites within the Land Trust area. I do not accept that the Committee's report indicates that it failed properly to apply the requirements of the ALRA and somehow strayed into 'some kind of middle ground' to accommodate the interests of each party. Nor do I accept that the passages complained of reflect that the Committee assumed that, in the case of the competing claimants which it was considering, the solution should be some form of sharing. For the reasons I have given, upon my reading of the Committee's report, it simply recognised the questions it had to address and, having addressed them, it concluded in fact that, in respect of certain sites, the responsibility and common spiritual associations of the Malak Malak and of the Kamu overlapped.