Walton, Alastair --- "A Most Regrettable Case Aboriginal Land Commissioner -- Prohibited in Kenbi, Okay for Waramungu" [1987] AboriginalLawB 13; (1987) 1(25) Aboriginal Law Bulletin 5

• “A Most Regrettable Case” Aboriginal Land Commissioner – Prohibited In Kenbi, Okay For Waramungu

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“A Most Regrettable Case”
Aboriginal Land Commissioner –
Prohibited in Kenbi, Okay for Waramungu

by Alastair Walton

The full Federal Court of Australia, (Bowen C.J. and Lockhart and Sheppard J.J.) handed down their decision for the matter concerning a writ of prohibition against the Honourable Michael Maurice, Aboriginal Land Commissioner for the Northern Territory on 13 April 1987. The writ covered two substantial land claim hearings, the Warumungu and Kenbi (Cox Peninsula) claims.

The Attorney-General for the Northern Territory and the Northern Territory Land Corporation were seeking an order prohibiting Maurice l. from proceeding to hear evidence or submissions, from making a report and from making final recommendations pursuant to the provisions of 5.50 of the Aboriginal Land Rights (NT) Act 1976, in relation to either or both of the land claims already mentioned.

The Attorney-General was successful in prohibiting the Aboriginal Land Commissioner from further proceeding with the Kenbi claim.

The full Court found that;

'It is our opinion that it might reasonably be apprehended by a fair-minded person that the Commissioner might not resolve the questions before him in the Kenbi claim relating to the validity of the planning regulations (see The Queen v Toohey; Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170 - Ed.) with a fair and unprejudiced mind. The question of actual bias or prejudice is not the question before us. That is not a relevant matter for inquiry. The only question before us is the application of the objective test to which we have referred.'

and that;

"The public's awareness of the Commissioner's remarks was heightened by the publicity necessarily attached to the election. (NT Government elections - Ed.) The remarks related to questions that became politically sensitive in the milieu of Northern Territory politics."

However the Court ruled that the Commissioner be allowed to continue hearing the Warumungu claim.

In essence, various circumstances joined to amplify what were at the time qualified comments made by the Aboriginal Land Commissioner on 25 February during a hearing for the Warumungu land claim. It must also be noted that following the Commissioner's statements "there was absolutely no reaction" to the statement by counsel for any party.

The opening line of the Court's written judgement reads, "This is a most regrettable case". And so it is. This particular case is another costly chapter in "what has become the longest and most contentious claim since the birth of land rights - the Warumungu claim which surrounds Tennant Creek." (Times on Sunday, 29 March 1987).

At any one time during the hearing at least eleven black gowns sat at the bar table in the court, not counting the solicitors and materials behind them. Land rights litigation is eating away at Land Council resources and at the Territory's Department of Law Funds. Meanwhile the Aboriginal claimants wonder at the white fella's law which for Warumungu started from its initial application on 20 November 1978 before the then Commissioner justice Toohey. This claim alone has produced several forays into the High Court of Australia (Queen v Kearney; Ex pare Japanangka [1984] HCA 13; (1984) 158 CLR 395, Attorney General for the Northern Territory v Maurice [1986] FCA 91; (1986) 65 ALR 230; (1986) 61 ALJR 92).

As for the Kenbi claim, the Northern Land Council applied for that on 20 March 1979, but to date there has not been a hearing of it. All action so far for Kenbi has involved various applications concerning procedural questions and the status of certain of the land included within the claim. The High Court in The Queen v Toohey Ex pare Northern Land Council (supra) held that the Aboriginal Land Commissioner was bound to enquire into the reasons why the Administrator of the Northern Territory effectively expanded the town limits of Darwin (originally 142km) under the Planning Act 1979 (NT) regulations, across to Cox Peninsula (much of it under claim) to include an extra 4,350 square kilometres.

Maurice J. had originally given directions for the resumption of the hearing of the Kenbi claim to commence on 30 March 1987. The first issue he would have resolved would have been "the validity of the regulation" made by the Administrator. The allegations are that the regulation was not made bona fide to the Planning Act, but for the ulterior purpose of defeating the Kenbi claim. As the hearing for this issue would involve some members of the Ministry of the Northern Territory, which at all material times has been the same political party, the Country Liberal Party, the Court came to the conclusion that the comments of Maurice J. made on 25 February 1987 put the judge's position in doubt.

These fateful comments came after a witness, Mr Hockey who is a pastoral inspector in the employ of the Department of Lands in the Northern Territory, had given evidence in relation to an inspection on Singleton Station (near Tennant Creek). The station is effectively controlled by Mr Heaslip who is and has been the President of the Country Liberal Party in the Northern Territory, 'at all material times' as they say.

Below is a section of the remarks made by Maurice J. with the important sentence in bold italics;

"It is quite wrong for anyone to interfere with the pastoral inspector in preparing his reports either by creating circumstances where he feels he is under pressure or may feel he is under pressure, as seems to have been the case here, or by asking him to make changes to his report. These reports should not be vetted. The inspectors should feel uninhibited in the free and frank expression of their observations and opinions. They should be expressed without fear or favour. If Mr Hockey were a police officer in uniform, then there would be considerable outrage at what he has said has occurred in the way of interference with the preparation of pastoral inspectors' reports in the Northern Territory. It makes a joke of the system of pastoral inspection in my view to require three months notice and the joke becomes a giant farce if the inspection can be cancelled by the pastoralists at the last minute. I must say that the evidence which you have given seriously disturbs me and it raises questions about some form of patronage going on in this Territory. You are in a sense under my protection now."

The effect of the Court's decision is that the Warumungu case will continue and will be hopefully determined by Maurice J. this year. The appointment of Maurice J. as Aboriginal Land Commissioner expires on 3 October 1987, and it seems unlikely that he will accept a further appointment. It now seems a new Commissioner will hear the Kenbi claim. The appointment of a new Commissioner is the responsibility of Mr Clyde Holding, the Minister for Aboriginal Affairs in the federal government. The choice for a new Commissioner shall bean interesting task for Mr Holding in the light of the recent federal Court case. The choice of Maurice J. was originally seen as one that should have been to the liking of the Territory government as he was a local, a 'home-grown product. If the Kenbi claim is to ever get off the mark a Commissioner must be found who has not been reported for commenting on the form of the Northern Territory Government, either way.