R v Toohey; Ex parte Northern Land Council [1981] HCA 74

High Court of Australia Gibbs C.J. Stephen, Mason, Murphy, Aickin and Wilson JJ. R v Toohey; Ex parte Northern Land Council

ORDER Order that a writ of mandamus issue to the Honourable Mr. Justice Toohey as Aboriginal Land Commissioner directing him to proceed to deal in accordance with law with the application made by the prosecutor under s. 50(1)(a) of the Aboriginal Land Rights (Northern Territory) Act 1976 Cth and known as the Kenbi Land Claim. Order that the Attorney-General for the Northern Territory pay to the prosecutor its costs of this application.

Cur. adv. vult.

The following written judgments were delivered:—

1981, Dec. 24 Gibbs C.J.

This is an application for a writ of certiorari to quash a decision made on 20 December 1979 by Toohey J., sitting as an Aboriginal Land Commissioner under the Aboriginal Land Rights (Northern Territory) Act 1976 Cth as amended ("the Land Rights Act") to hear a matter known as the Kenbi Land Claim, and for a writ of mandamus directing Toohey J. to exercise his jurisdiction under the Land Rights Act and hear the claim. An application for prohibition was also made, but not strongly pressed. Kenbi is the Aboriginal name for the Cox Peninsula in the Northern Territory. An application was, on 20 March 1979, made to the Commissioner by the prosecutor, the Northern Land Council, on behalf of Aboriginals claiming to have a traditional land claim to a substantial area of the Cox Peninsula and to islands and reefs lying off the coast of the peninsula. The application was made under s. 50(1)(a) of the Land Rights Act which provides as follows:

(1) The functions of the Commissioner are—

(a) on an application being made to the Commissioner by or on behalf of Aboriginals claiming to have a traditional land claim to an area of land, being unalienated Crown land or alienated Crown land in which all estates and interests not held by the Crown are held by, or on behalf of, Aboriginals—