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Aboriginal Law Bulletin

Aboriginal Law Bulletin (ALB)
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Nettheim, Garth --- " [1982] AboriginalLawB 74

R v Toohey; Ex parte Northern Land Council

Regulation under Planning Act 1979 (NT) expanding Darwin - effect on NLC's Kenbi Land Claim - regulation only valid if made for planning purpose - mandamus.

R v Toohey; Ex patre Northern Land Council

High Court of Australia

24 December 1981

Casenote by Garth Nettheim

Darwin occupies an area of about 142 square kilometres. Acting under the Planning Act 1979 (NT), the Administrator of the Territory made regulations which, inter alia, purported to treat as a town an area of some 4,350 square kilometres around Darwin. This area included most of the land in the Peninsula which was subject to the Kenbi Land Claim lodged by the Northern Land Council under the Aboriginal Land Rights (Northern Territory) Act 1976 (C'th ). The planning regulation, if valid, would have the effect of preventing the Aboriginal Land Commissioner from hearing the claim for the reason that (for the most part) he may hear claims only to 'unalienated Crown land' (s. 50 (1) (a) ) which, under s. 30), is defined so as not to include land in a town.

On 20 December 1979 the Commissioner, Toohey J, did indeed hold that a large part of the land the subject of the claim could not, for this reason, be claimed under the Act. When an attempt was made to argue before him that the regulations had been made for the illegitimate purpose of defeating the Kenbi claim - and to obtain from the Administration discovery of documents to support such an argument - Toohey J felt bound by precedent to rule that the motives of the Administrator in making the regulation could not be called in question.

The High Court, on 24 December 1981, held that the statutory power in the Planning Act could be validly exercised only if exercised for planning purposes, not if the real purpose was to defeat an Aboriginal Land Claim. The fact that the power was exercised by the Administrator made no difference, even if he should be regarded as the Queen's representative in the Territory. Accordingly mandamus would lie to order the Commissioner to decide whether the planning regulation was invalid and, if he so held, to continue the hearing of the land claim.

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