Case: Northern Land Council v Olney (1992) 34 FCR 470
Outcome: considered
ALRA provides for the granting of traditional Aboriginal land in the Northern Territory for the benefit of Aboriginals and for other purposes. Its scheme has been explained by the High Court in Risk v Northern Territory [2002] HCA 23 ; (2002) 210 CLR 392 at 398-403 and 409-412. See also Northern Land Council v Olney (1992) 34 FCR 470 at 475-478. The parties were agreed that the fact that, because the definitions of both 'traditional Aboriginal owners' and of 'Aboriginal tradition' are expressed in the present tense, the identity of traditional owners may evolve somewhat over time, and that the strength of spiritual affiliations to sites and spiritual responsibility for sites may vary in strength from time to time: see e.g. per Brennan J in The Queen v Toohey; Ex parte Meneling Station Proprietary Limited [1982] HCA 69 ; (1983) 158 CLR 327 ( Meneling Station ) at 359; and Northern Land Council v Olney (1992) 34 FCR 470 at 485. Senior counsel for the Malak Malak pointed out, without demur, that the functions of a Land Council are the same whether the land the subject of a land grant under the ALRA followed a recommendation of the Land Rights Commissioner or was Schedule 1 land. The focus on the present traditional Aboriginal owners is also recognised in ss 19(5), 23(1)(e)(i), 23(3), 42(2)(a), 42(3) and 46(4)(a) of the ALRA. A Land Council is empowered by s 24(a) to compile and maintain a register of the names of persons who, in the opinion of the Land Council, are the traditional Aboriginal owners of the Aboriginal land in the area of the Land Council. The 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. The issue has not been the subject of direct judicial determination, although Justice Toohey as the Aboriginal Land Commissioner in his Report in the Finniss River Land Claim in 1981 appears to have accepted at [100], [218], [220], [225] and [234] that there may be more than one group of traditional Aboriginal owners of a particular site or area of country. I do not consider the observations of Brennan J in Meneling Station at 356-360 support the contention of the Malak Malak. That case relevantly concerned s 50(3) of the ALRA. If anything, in my view, his Honour's remarks at 358 suggest that there may be more than one group of traditional Aboriginal owners. His Honour said of the Aboriginal Land Commissioner's function under s 50(1) that it 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.' (my emphasis) Moreover, Meneling Station concerned the Finniss River Land Claim Report, so that such an approach by the Aboriginal Land Commissioner may have attracted some judicial comment if it were not consistent with the ALRA. It also appears that the Full Court in Northern Land Council v Olney at 490 contemplated the possibility of there being more than one local descent group each having common spiritual affiliations to a site. That construction is consistent with a number of reports of Aboriginal Land Commissioners under the ALRA. They are noted in Neate , Aboriginal Land Rights Law in the Northern Territory, Alternative Publishing Co-operative Ltd, Sydney, 1989 at Ch 3 fn 298. Since 1989, a number of similar reports have been made, including Justice Gray in the Jawoyn (Gimbat Area) Land Claim Report, 1995 (especially at [4.28]) and Justice Olney in the Wakaya/Alawarre Land Claim Report, 1990 (especially at [5.8]). I note, as senior counsel for the Malak Malak pointed out, both those reports concerned claimant groups who were not competing with each other. Moreover, that construction in my view is consistent with giving the ALRA a broad construction so as to give effect to the beneficial purpose for which it was intended: see e.g. R v Kearney; Ex parte Jurlama [1984] HCA 14 ; (1984) 158 CLR 426 at 433; and Northern Land Council v Olney at 479. It is unlikely that the ALRA was intended either to exclude altogether from the traditional ownership both local descent groups if (for example) there were found to be two local descent groups each with the specified characteristics in relation to a particular site, or alternatively to force a decision between competing local descent groups on some unspecified basis when reach was found to have the specified characteristics in relation to a particular site. Once it is accepted that, as a matter of law, there may be two groups of persons who are each traditional Aboriginal owners of particular sites or country, the fact that there are competing groups making mutually exclusive claims is simply a matter the decision-maker must take into account. It doe not follow that the decision-maker, having taken all relevant material into account, will err in a reviewable way if both groups are found to be traditional Aboriginal owners. As the Full Court in Northern Land Council v Olney said at 487: '... the question whether or not a group of claimants can establish its status as traditional Aboriginal owners of the land is ultimately a question of applying the statute to the particular facts as found.' The Malak Malak point out that the statutory definition of 'traditional Aboriginal owners' refers to 'common' spiritual affiliations to a site on the relevant country. That requirement of commonality is one which the members of a local descent group must enjoy as among themselves. It is not a requirement that, in the case of there being more than one local descent group, all the members of each local descent group must collectively enjoy commonality of spiritual affiliations. It is plain that subpar (a) of the definition prescribes a particular characteristic for a local descent group. As I have indicated, the definition of 'traditional Aboriginal owners' is satisfied only if the group of Aboriginals who comprise a local descent group have 'common spiritual affiliations' to a site on the land. That requirement was explained by the Full Court in Northern Land Council v Olney at 485-488. It is clearly a requirement, or characteristic, which a local descent group must satisfy before it comes within the definition. Where a local descent group has that characteristic in relation to a site on the land (and also satisfies the other elements of the definition) it will qualify as traditional Aboriginal owners in relation to that land. If there are two local descent groups who so qualify, by the application of the statute, they each enjoy that status in relation to that land. There is no requirement in the definition that the members of each such group must then be found collectively to have 'common spiritual affiliations' with that land. It therefore is not to the point, in my view, at least in relation to this contention, that there are examples where the Malak Malak and the Kamu gave different evidence as to the nature of their respective common spiritual affiliations with particular sites such as Jebenyi or Ngulukmoenet/Kabamal or the area of Mt Hayward called Wani Alawun by the Malak Malak and Ngalyuwuy by the Kamu. Those observations indicate why I also do not accept the further contention of the Malak Malak that the Committee erred in proceeding on the basis that there can be more than one 'land-owning group' in relation to a particular area of land in circumstances where the members of both groups do not hold spiritual affiliations in common with each other. It is also convenient at this point to address a subsidiary contention of the Malak Malak that the Committee erred by not addressing the existence or otherwise of the common spiritual affiliations of the Kamu local descent group in the manner required. The pithy contention was that the Committee 'made findings about the spiritual affiliations of each group rather than about those of their members'. The approach to that aspect of fact finding was described by the Full Court in Northern Land Council v Olney at 487-488 as follows: 'The task of the Commissioner is first to ascertain the relevant group to be investigated and then to determine whether the members of that group have the requisite common spiritual affiliation such that the group is as a result under a primary spiritual responsibility for the site and the land. A group necessarily comprises persons. Clearly it is not necessary to call each member of the group to give evidence to establish that they have the appropriate spiritual affiliation. It will be sufficient if the evidence establishes, on the balance of probabilities, that the Aboriginals who comprise the group have that affiliation.' In my view, the Committee is not shown to have departed from the proper decision-making process or to have misunderstood its task. In accordance with what the Full Court then went on to indicate at 488, the Committee recognised that the common spiritual affiliations have to be possessed by the individuals who comprise the group. I do not read [100] of the Committee Report as indicating any departure from that process. Its decision was based upon the evidence of individual members of the Kamu, given at a number of sites. It clearly recognised that the Kamu comprise a number of individuals who are descendants of Mrs Pan Quee. In my view, its focus when making its findings on this aspect was properly upon the Aboriginals who comprise the Kamu local descent group which it found to exist. The next two submissions of the Malak Malak can conveniently be dealt with together. They contended that the Committee erred in holding that both the Malak Malak and the Kamu hold 'joint primary spiritual responsibility' for the shared sites. And they contended that it erred in finding that the shared sites identify a 'shared area' or zone between the country of the Kamu and the country of the Malak Malak which is an area 'to which both groups have shared responsibilities and interests'.