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Published online by Cambridge University Press: 24 January 2025
I shall begin with a riddle, in fact three riddles:
1 What sort of interest in land is held as an estate in fee simple but is inalienable?
2 What sort of interest in land is held by a registered proprietor who has no power to make decisions relating to it, except with the consent of another, and who must act at the direction of that other?
3 What sort of interest in land does not carry with it ownership of minerals but can preclude mining thereon?
The answer to each of these questions is — Aboriginal land under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (“the Land Rights Act”).
The purpose of this paper is not to trace the course of judicial history in this country, from the robust assertion of the Privy Council that the colony of New South Wales “consisted of a tract of territory practically unoccupied, without settled inhabitants or settled law, at the time when it was peacefully annexed to the British dominions” to the judgment of Blackburn J in Milirrpum v Nabalco Ply Ltd.
This article is a slightly revised version of a paper delivered by the author at the Supreme Court Judges' Conference in January 1984.
From April 1977 to April 1982 he was the Aboriginal Land Commissioner in the Northern Territory. In 1983 he wrote, at the request of the Federal Minister for Aboriginal Affairs, a report making recommendations about the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) and related matters. The report was published as Seven Years On (1984).
1 Cooper v Stuart (1889) 14 AC 286, 291.
2 (1971) 17 FLR 141.
3 Ibid 267, 273.
4 Mabo and others v Queensland and the Commonwealth (1982) 4 Aboriginal Law Bulletin 1.
5 (1831) 5 Peters Supreme Court Reports 1, 17.
6 Coe v Commonwealth of Australia (1979) 53 ALJR 403, 408.
7 Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) s 4(1).
8 (1971) 17 FLR 141, 167.
9 Stanner, W E H, White Man Got No Dreaming (1979) 230.Google Scholar The passage is from one of Professor Stanner’s Boyer Lectures “After the Dreaming” (1968). See also Brennan J in Re Toohey ex parte Meneling Station Pty Ltd (1982) 57 ALJR 59, 70.
10 Report by the Aboriginal Land Commissioner to the Minister for Aboriginal Affairs and to the Administrator of the Northern Territory: Finniss River Land Claim (1981) para 258.
11 Report by the Aboriginal Land Commissioner to the Minister for Aboriginal Affairs and to the Administrator of the Northern Territory: Anmatjirra and Alyawarra Land Claim to Utopia Pastoral Lease (1980) paras 157-162.
12 Both concepts are defined in the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) s 3(1).
13 There is a discussion of “local descent group” in the Anmatjirra and Alyawarra Land Claim to Utopia Pastoral Lease report, supra n11, paras 109-121, and in the Report by the Aboriginal Land Commissioner to the Minister for Aboriginal Affairs and to the Administrator of the Northern Territory: Lander Warlpiri Anmatjirra Land Claim to Willowra Pastoral Lease (1980) paras 85-89.
14 Report by the Aboriginal Land Commissioner to the Minister for Aboriginal Affairs and to the Minister for Home Affairs: Uluru (Ayers Rock) National Park and Lake Amadeus/Luritja Land Claim (1980).
15 See generally Neate, G J, “Legal Language Across Cultures: Finding the Traditional Aboriginal Owners of Land” (1981) 12 FL Rev 187Google Scholar.
16 Bell, D, Daughters of the Dreaming (1983) 139.CrossRefGoogle Scholar
17 Re Toohey; ex parte Meneling Station Pty Ltd (1982) 57 ALJR 59, 71.
18 s 4.
19 (1971) 17 FLR 141, 161.
20 The role of the anthropologists is discussed in a number of reports under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). See for instance the Utopia report supra n11 para 89 and Finniss River report, supra nl0, para 134.
21 ss 50(1), 50(3).
22 Re Toohey; ex parte Meneling Station Pty Ltd (1982) 57 ALJR 59.
23 Report by the Aboriginal Land Commissioner to the Minister for Aboriginal Affairs and to the Administrator of the Northern Territory: Warlmanpa, Warlpiri, Mudbura and Warumungu Land Claim (1982) para 97.
24 Aboriginal Land Rights Commission: Second Report (1974) 138.
25 Report by the Aboriginal Land Commissioner to the Minister for Aboriginal Affairs and to the Administrator of the Northern Territory: Alligator Rivers Stage II Land Claim (1981) para 118.
26 s 50(1).
27 s 3(2).
28 In re Ross; ex parte A-G for Northern Territory (1979) 54 ALJR 145.
29 (1920-1923) 33 CLR 1, 42.
30 Halsbury’s Laws of England (4th ed 1980) XXXI para 16.
31 s 12(2).
32 Northern Territory (Self-Government) Act 1978 (Cth) ss 69(2), (3), (4).