Case: The Queen v Toohey; Ex parte Meneling Station Proprietary Limited [1982] HCA 69 ; (1983) 158 CLR 327
Outcome: considered
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.