R v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69

High Court of Australia Gibbs C.J. Mason, Murphy, Wilson and Brennan JJ. R v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69

ORDER Application for a writ of mandamus and a writ of prohibition refused with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 8 Gibbs C.J.

This application for mandamus and prohibition raises for decision two important and difficult questions as to the construction of s. 50 of the Aboriginal Land Rights (Northern Territory) Act 1976 Cth, as amended, ("the Act"). Section 50, so far as it is material, 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—

(i) to ascertain whether those Aboriginals or any other Aboriginals are the traditional Aboriginal owners of the land; and

(ii) to report his findings to the Minister and to the Administrator of the Northern Territory, and, where he finds that there are Aboriginals who are the traditional Aboriginal owners of the land, to make recommendations to the Minister for the granting of the land or any part of the land in accordance with sections 11 and 12;

(3) In making a report in connexion with a traditional land claim the Commissioner shall have regard to the strength or otherwise of the traditional attachment by the claimants to the land claimed, and shall comment on each of the following matters:

(a) the number of Aboriginals with traditional attachments to the land claimed who would be advantaged, and the nature and extent of the advantage that would accrue to those Aboriginals, if the claim were acceded to either in whole or in part;