eR AAD OR rina re ieee Maen yr mnntticthd ages Crore TS Pan Bs oid! { Deed SO CATCHWORDS Aboriginal Land Claim - Alleged defective description of land claimed under Aboriginal Land Rights (Northern Territory) Act 1976 - whether claim void for uncertainty - "falsa demonstratio non nocet" — "contra proferenten" rule. No. G105 of 1986 IN THE MATTER of an Application for Writs of Prohibition and Certiorari against the HONOURABLE MICHAEL DAVID ANDREW MAURICE, ABORIGINAL LAND COMMISSIONER (Respondent AND IN THE MATTER of the WARUMUNGU LAND CLAIM EX PARTE: THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA (Prosecutor) G106 of 1986 THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA (Applicant) THE HONOURABLE MICHAEL DAVID ANDREW MAURICE, ABORIGINAL LAND COMMISSIONER (First Respondent) JACK KIJIKARI JAPPANANGKA, BLUEY FRANK JAKKAMARRA and HILDA JOHNSON NAPPANANGKA (Second Respondents) AND IN THE MATTER of the WARUMUNGU LAND CLAIM Beaumont, J. Sydney 11 November 1986 we, sea pov te 33 t —-— Ce ee ee et IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G105 of 1986 GENERAL DIVISION ) IN THE MATTER of an Application for Writs of Prohibition and Certiorari against the HONOURABLE MICHAEL DAVID ANDREW MAURICE, ABORIGINAL LAND COMMISSIONER Respondent AND IN THE MATTER of the WARUMUNGU be' LAND_CLATM — ! EX PARTE: THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA Prosecutor ry MINUTES OF ORDER Judge making order: Beaumont, J. ; Date order made: 1l November 1986 Where made: Sydney THE COURT ORDERS THAT: 1. The application be dismissed. 2. The prosecutor pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) GENERAL DIVISION BETWEEN: NEW SOUTH WALES DISTRICT REGISTRY ) No. G106 of 1986 THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA Applicant THE HONOURABLE MICHAEL DAVID ANDREW MAURICE, ABORIGINAL LAND COMMISSIONER First Respondent JACK KIJIKARI JAPPANANGKA, BLUEY FRANK JAKKAMARRA and HILDA JOHNSON NAPPANANGKA Second Respondents AND IN THE MATTER of the WARUMUNGU LAND CLAIM MINUTES OF ORDER Judge making order: Beaumont, Jd. Date order made: 11 November 1986 Where made: Sydney THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondents' costs. ' i Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. - oN mam ge meee ee =. « a ve TO ym ee re ween eee , wn 74 ae! so i ie a i 2 IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) GENERAL DIVISION CORAM: DATED: BETWEEN : Beaumont, J. 11 November 1986 ) No. G105 of 1986 IN THE MATTER of an Application for Writs of Prohibition and Certiorari against the HONOURABLE MICHAEL DAVID ANDREW MAURICE, ABORIGINAL LAND COMMISSIONER Respondent AND IN THE MATTER of the WARUMUNGU LAND CLAIM EX PARTE: THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA Prosecutor No. G1i06 of 1986 THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA Applicant THE HONOURABLE MICHAEL DAVID ANDREW MAURICE, ABORIGINAL LAND COMMISSIONER First Respondent JACK KIJIKARI JAPPANANGKA, BLUEY FRANK JAKKAMARRA and HILDA JOHNSON NAPPANANGKA Second Respondents AND IN THE MATTER of the WARUMUNGU LAND CLAIM vat an comes ee ly : - 2. REASONS FOR JUDGMENT Before the Court are the following applications: an application by the prosecutor, the Attorney-General for the Northern Territory of Australia, for the issue of a Writ of Prohibition directed to Maurice Jd., as Aboriginal Land Commissioner ("the Commissioner"), to prohibit further proceedings on a claim under the Aboriginal Land Rights (Northern Territory) Act 1976 ("the Land Rights Act") known as the Warumungu Land Claim ("the land claim"); an application by the Attorney-General for the issue of a Writ of Certiorari quashing a ruling on jurisdictional issues arising in the land claim given by the Commissioner on 27 March 1986; and an application by the Attorney-General for judicial review under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") of the decision of the Commissioner given in his ruling on 27 March 1986. For these purposes, separate proceedings - one seeking the issue of prerogative writs, the other under the Judicial Review Act - have been instituted. Since it was common ground that the applications raised the same substantive issues, they were heard together. (The reason for the institution of both proceedings was to avoid possible doubts as to the appropriate jurisdiction in this type of case: see Re Kearney: Ex parte: Attorney-General for the Northern Territory (1984) 55 A.L.R. 545 at p.549.) On 20 November 1978, the Central Land Council, a body asses .o—, 3. ° incorporated under the Land Rights Act lodged with the then Aboriginal Land Commissioner (Kearney J.) a document dated 9 November 1978 which is entitled - "NOTIFICATION OF CLAIM UNDER ABORIGINAL LAND RIGHTS TITLE OF CLAIM: land claimed. to be defective in a number of respects and therefore void. reads: (NORTHERN TERRITORY) ACT, 1976 area between Dalmore Downs and Tennant Creek." The Warramunga/Alyawarra claim to an There follows what purports to be a description of the "DESCRIPTION OF LAND CLAIMED: An area of Unalienated Crown Land in the Tennant Creek area. The claim area is bounded by a line commencing at the easternmost point of the northern boundary of Epenarra Pastoral Lease then due north to the southern boundary of Dalmore Downs Pastoral Lease, then west and then north to the junction of the western boundary of Dalmore Downs Pastoral Lease, with the southernmost boundary of Rockhampton Downs, then west, then north and then west along the boundary of Rockhampton Downs Pastoral Lease, and the southern boundary of Burnchilly Pastoral Lease to the eastern boundary of Phillip Creek Pastoral Lease then following the boundary of Phillip Creek Pastoral Lease, in a southerly, then westerly, then southerly, then easterly, then northerly, then north easterly, then easterly, then southerly, then westerly, then northerly and then westerly direction to the easternmost point of the northernmost boundary of Tennant Creek Pastoral, then along the boundary of Tennant Creek Pastoral Lease, southerly, then westerly, then southerly, then easterly and then southerly to the westernmost point on the northernmost boundary of McLaren Creek Pastoral Lease. Then easterly, then southerly and then westerly along the boundary of McLaren Creek Pastoral Lease to that boundary's intersection with the westernmost This description is said by the Attorney-General It ae - vaweee PA mee, boundary of Kurundi Pastoral Lease. Then northerly, then easterly, then northerly, then easterly along the boundary of Kurundi Pastoral to Lease to its junction with the western boundary he of Epenarra Pastoral Lease. Then northerly and Es then easterly along the boundary of Epenarra * excluding areas within the area so enclosed defined as a town under the terms of the ; Aboriginal Land Rights (Northern Territory) Act, rv 1976, Section 3(1). Pastoral Lease to the point of commencement, but a f i? The land claimed is shown on the attached map." hv A copy of the claim and map attached is annexed to these ie reasons (annexure "A"). -The map is a photocopy of a portion of what was known as the Pastoral Map of the Northern Territory. It appears that it is published by the Government of the Territory ao to indicate the location of pastoral leases in the Territory. On the attached map, the area claimed is outlined and hatched in blue biro. The claim is made "jointly on the behalf of the several Warramunga Clans". The claimants include a number of named persons. It appears that Jack Jappanangka and the other second ae respondents in G.106 of 1986 are members of this clan. The relevant functions of the Commissioner are dealt with by s.50(1)(a) of the Land Rights Act: i "50.({1) The functions of the Commissioner are - (a) on an application being made to the Ya Commissioner by or on behalf of Aboriginals ras claiming to have a traditional land claim bo to_an area of land, being unalienated Crown ' yes land or alienated Crown land in which all — estates and interests not held by the Crown are held by, or on behalf of, Aboriginals - toon re (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 eof 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; (Emphasis added) The operation of s.50{1)(a) in conjunction with ss.1l and 12 of the Land Rights Act was considered by the High Court in Re Toohey; Ex parte Meneling Station Pty. Ltd. (1982) 44 A.L.R. 63, in Re Toohey; Ex parte Stanton (1982) 44 A.L.R. 94 and in Minister for Aboriginal Affairs v. Peko-Wallsend Ltd. (1986) 66 A.L.R. 299. Although, for the purpose of deciding those cases, it was necessary to consider the meaning of s.50(1}(a) in a broad context, it is common ground that the matter presently in dispute falls to be resolved by reference to the passage emphasised in s.50(1)(a). Section 50(1)(a}) permits the making of an application to the Commissioner by Aboriginals claiming to have a traditional land claim to "an area of land" of a particular character. No question arises here as to that character. The subject of the Cae : a «ff ak de aenlal ie ella alee oe) ' 4 6. present dispute is the adequacy of the description of the area claimed in terms of its identification. It is the contention of the Attorney-General that the purported description is so obscure that it is void for uncertainty. The Land Rights Act does not require such an application to be in any particular form. However, by s.51 of the Land Rights Act, the Commissioner "may do all things necessary or convenient to be done for or in connexion with the performance of his functions." (See Anthony Lagoon Station Pty. Limited v. Maurice, Aboriginal Land Commissioner, unreported, Morling J., 9 September 1986). On 8 June 1977, the then Commissioner, Toohey J., issued practice directions with respect to the presentation and hearing of applications under s.50(1)(a). The practice directions required that an application be in writing. In acknowledging the absence of any prescribed form (cf. Downey v. Pryor (1960) 103 C.L.R. 353 per Kitto J. at p.362), it was provided by the practice directions that the application - "should ensure as far as possible that the identity of the claimants and the land claimed appears clearly. To this end, the application should set out the following information - (a) .... (b) A description of the land = claimed accompanied by a map showing clearly the location of the land;...." In giving his ruling on jurisdictional issues on 27 March 1986, the Commissioner rejected a submission by the 7. Attorney-General that it was not "possible to discern from either the description or the map accompanying the application the area of land claimed..." In the Commissioner's judgment, the parcel of land which had become known as "Area 1" for the purposes of the land claim was made the subject of an application under s.50(1)(a}) on 20 November 1978. (Although the proceedings are brought in the original jurisdiction of the Court, there was no direct evidence in the present applications which identified "Area 1". This is an important consideration and I will need to return to it later.) Before the Commissioner, the Government of the Northern Territory argued that the purported description of so much of the land claimed as was situated in the vicinity of the Tennant Creek Station was inadequate and defective in several respects. The Commissioner accepted that certain mistakes had obviously occurred in the description. He said: "4. At the foot of the description appear the words: 'The land claimed is shown on the attached map'. The map which accompanied the application is in fact a photocopy of the relevant part of the Pastoral Map of the Northern Territory. On this copy, outlined and hatched in blue biro, is an area which corresponds precisely with what is depicted as being, in effect, a large area of vacant Crown land bounded almost entirely by pastoral lease boundaries: Dalmore Downs, Rockhampton Downs, Brunchilly, Phillip Creek, Tennant Creek, McLaren Creek, Kurundi and Epenarra. The easternmost boundary is shown as a straight-line projection of the eastern boundary of Epenarra to the southern boundary of Dalmore Downs. The visual effect thus produced is of an irregular shaped, discrete area with multiple boundaries most of which run north south or east west. eat MTG TET TE NT me ren ee ae TUTE Tene ge re me ee 8. 5. Looking at the relevant lease documents it can be seen that Tennant Creek Station has an unusual configuration inasmuch as it consists of two more or less disconnected parts lying on epposite sides of the Stuart Highway. The more northerly of the two lies to the east with the Highway separating it from Phillip Creek Station. In fact, this northern segment appears more naturally to be an easterly extension of Phillip Creek Station than part of Tennant Creek. The original mapmaker has adopted the style of placing the name of each pastoral lease holding in about the centre of the area representing the holding using an upper case print form not used for any other purpose on the map. In the case of Tennant Creek Station, the words "TENNANT CREEK' appear in approximately the middle of the southern part of the run, but do not appear in this form in the northern part. (Both the town and the watercourse are named, but ain different print styles and quite obviously as features different from the pastoral holding). It is therefore easy to get the impression from looking at the Pastoral Map that Phillip Creek Station extends to the east of the Highway and includes what in truth turns out to be the northern part of Tennant Creek Station." The Commissioner continued : "6. It is obvious from a comparison of the Pastoral Map with the verbal description in the application: (a) that the author of the latter document has made a mistake; and (b) the error was in misdescribing the boundaries of the north-eastern part of Tennant Creek Station as though they were boundaries of Phillip Creek Station. He has chosen the boundaries of the surrounding pastoral leases as his monuments, but the description breaks down when it comes to giving the directions of the boundaries of the Phillip Creek Pastoral Lease. The reader is told to follow the boundary of that lease in a southerly, then westerly, then southerly direction. Up to this point the description corresponds with the Pastoral Map. But then the reader is instructed to follow the boundaries of Phillip Creek Pastoral Lease in an easterly, then northerly, then north easterly, then easterly, then southerly, then westerly, then northerly and then westerly direction to the tot Re awrerere ee 9. eastern most point of the northernmost boundary of Tennant Creek Pastoral (sic Lease). There are no boundaries of Phillip Creek Station that conform to these directions, and they therefore make no sense whatever. However, the eight @irections, their sequence and the commencing and finishing points make complete sense if what is being described is treated not as the boundaries of Phillip Creek Pastoral Lease, but Tennant Creek Station..." In rejecting the suggestion that the claim was void for uncertainty, the Commissioner said: "7. I think that true intention of the persons who lodged the original application in 1978 is clear from simply reading the metes and bounds description with either the relevant pastoral leases or the Pastoral Map. The mistake that had been made, and, therefore, what was intended by the words of description was obvious to me when I first read the application. It is not even necessary to go to the map accompanying the application. But, do that, and the matter is put beyond all doubt." In para.5 of his reasons, the Commissioner referred to the lease of Tennant Creek Station, being Northern Territory Portions Nos. 494 and 1075. The precise location of those portions is indicated on the map being annexure "B" to these reasons. This map was annexed to the lease of Tennant Creek Station. There was also tendered in these proceedings, without objection, a Pastoral Map of the Northern Territory dated September 1979. The map attached to the land claim application was an earlier version of this Pastoral Map. It is common ground that the 1979 edition was the same, in all material respects, as the earlier version. The purpose of the tender was to give a better understanding of the map attached to the land claim application. Annexure "C" to these reasons is an extract from ery ae 8 reryrress os sot te men rm te ae > v " 10. the 1979 Pastoral Map. In these proceedings, the Attorney-General attacks the description in the land claim application on two grounds. The first ground of challenge fastens on the words in lines 12 to 16 of the description ~ "and then westerly direction to the easternmost point of the northernmost boundary of Tennant Creek Pastoral, then along the boundary of Tennant Creek Pastoral Lease, southerly, then westerly, then southerly, then easterly and then southerly to the westernmost point on the northernmost boundary of McLaren Creek Pastoral Lease." The Attorney-General argues that this description makes no sense at all; the consequence, he says, is that the whole description is null and void. To understand the reasons advanced in support of the Attorney-General's argument, it is necessary to go back to the beginning of the description. It will be remembered that the description commences at the easternmost point of the northern boundary of the Epenarra Pastoral Lease. This point is marked "1" on annexure "D" (another copy of annexure "A".) One then proceeds north to the southern boundary of the Dalmore Downs Pastoral Lease ("2"); then west and north to the junction of the western boundary of the Dalmore Downs Pastoral Lease with the southernmost boundary of the Rockhampton Downs Pastoral Lease ("3"); then west then north then west along the boundary of the Rockhampton Downs Pastoral Lease and the southern boundary of the ms gese Seo eee Spy ener err y+ sass Eryn = 1l. Brunchilly Pastoral Lease to the eastern boundary of the Phillip Creek Pastoral Lease ("4"); then following the boundary of the Phillip Creek Pastoral Lease in a southerly, then westerly ("5") then southerly then easterly ("6") then northerly then north easterly then easterly then southerly ("7") then westerly then northerly ("8"). No problem arises to this point. The d@escription proceeds (in line 12): "and then westerly direction to the easternmost point of the northernmost boundary of Tennant Creek Pastoral". The Tennant Creek Pastoral Lease consists of two Portions -— 494, lying to the south-west and 1075 lying to the north-east - but only Portion 494 bears the description "Tennant Creek". It would appear that the omission of that description from Portion 1075 explains why the reference in line 12 of the land claim application was made to the "easternmost point of the northernmost boundary of Tennant Creek Pastoral". This was obviously intended to be a reference to the boundary of Portion _ 494. So much is now accepted by the Attorney-General. His real complaint is that, thereafter, the description of the boundaries is uncertain. He points to annexure "B" and, in particular, to the area indicated as "Enlargement A" and argues that, because of the interposition of the stock route, inter alia, it is impossible to identify the boundary of the area claimed. It will be recalled that, although the Commissioner found that the boundaries of the claims were within "Area i", no — a "8 ary Dara 12. attempt was made by any party to adduce evidence in these proceedings to establish what "Area 1" is, notwithstanding that the absence of such significant evidence was drawn to the parties' attention during the hearing. The absence of any direct evidence to identify "Area 1 is a formidable obstacle to the Attorney-General's claim. Ultimately the relevant inquiry must be one of fact - that of identification of the land claimed. Whilst the construction of formal documents is a matter of law for a court, the question of "parcel or no parcel", i.e. of identity of the land described, is for a jury or a judge of fact (see Watcham v. Attorney-General of the East Africa Protectorate £1919] A.c. 533 per Lord Atkinson at p.540; ef. F.L. Schuler A.G. v. Wickman Machine Tool Sales Ltd. [1974] A.C. 235 per Lord Wilberforce at p.261; Stonham, Vendor _and Purchaser at p.175; Doe dem. Devine v. Wilson [1852-5] 1 Legge 722 at p.741 (P.C.); Lang, Crown Land in New 'South Wales at p-28). Unless the findings of the learned Commissioner on this factual question can be criticised as absurd or perverse, there is no scope for intervention by the Court by the issue of a prerogative writ (see, e.g., R v. Evatt; Ex parte Master Builders' Association (N.S.W.) (No. 2) (1974) 132 C.L.R. 150; Re Independent Schools' Staff Association (A.C.T.); Ex parte Hubert (1986) 65 A.L.R. 673 per Gibbs C.J., Mason and Dawson JJ. at pp.675-6; Puhlhofer v. Hillingdon London Borough Council (1986) 1 A.C. 484 per Lord Brightman at p.518); and in proceedings under the Judicial Review Act, it is well established that a mere factual error cannot support the grant of relief by the Court (see Akpan v. The " mle Ce ee an ae 2 sony wr fe 13. Minister, (1982) 58 F.L.R. 47 per Sheppard J. at p.50; Koh Ah Soo v. The Minister, Beaumont J., 30 April 1986, unreported, at p16.) It is not, and could not be, suggested that the learned Commissioner's findings were absurd or perverse in the sense explained in the authorities. Rather, what is put on behalf of the Attorney-General is that, given the theoretical possibility of a number of different constructions of a section of the description, the whole description is void for uncertainty (cf. The Council of the Upper Hunter County District v. Australian Chilling and Freezing Co. Limited (1968) 118 C.L.R. 429 per Barwick C.J. at p.437). Several hypothetical boundaries in the general region of "Enlargement A" were suggested by the Attorney-General to be open on a literal reading of the verbal description. It is not necessary to catalogue these hypotheses for any ambiguity in this part of the description is removed upon reference to the attached map: it is possible, with the assistance of the map, to read the description in lines 14 to 16 as indicating an intention to proceed from point "9" on annexure "D" to points "10" and "11" and then to "12" (the last being the westernmost point on the northernmost boundary of McLaren Creek Pastoral Lease). It is true, as the Attorney-General pointed out, that the description makes no reference to the need to proceed west from point "11" before proceeding south to point "12". But the map makes the position sufficiently clear. . Ty ae 2 o04s ? ny - oy yromes tq ny cea gorse re pe ead ea wee eee ' a oad 14. It follows, in my view, that whether taken as a whole or in sections, the description of the area claimed cannot be regarded as even vague, let alone as so obscure as to be void for uncertainty. Some lack of precise definition in the region of "Enlargement A" may be accepted. But the position is clarified upon recourse to the attached map. In any event, the question, one of fact, was resolved adversely to the Attorney-General by the Commissioner's finding that the land the subject of the land claim was "Area 1". No error in this finding has been demonstrated. In the course of argument, reference was made to the maxim "falsa demonstratio non nocet" (see Broom's Legal Maxims at p-426). In this connection, the Attorney-General relied heavily upon the Canadian case of McPherson v. Ramsay (1869) 1 Prince Edward Island Reports 288. There, land was described as "commencing at a stake on the O'Leary Road about the distance of thirty chains from Moreside's north-east angle of land" when, in fact, the nearest point of the locus was not (at the nearest point) within ninety chains of Moreside's north-east angle. The question was whether the words "from Moreside's north-east angle" should be rejected as a falsa demonstratio. Peters J. said that there was no scope for the application of the maxim since "there must be a good and certain description left, after shutting out the 'falsa demonstratio'.....In this case the point of commencement mentioned in the description is a stake, thirty sat c7 > ¥. ate se tyre v y Moat sete ae eee ey Bek ae a) ee ower Mn vaya sees — ' 15. chains from Moreside's north-east angle of land. Is not that angle then a material part of the description? Reject it and where are you to find a point of commencement for your lines?" (at pp.288-9). This reasoning cannot be applied here. The absence of a sufficient indication of a starting point may well deprive a description of the requisite degree of certainty. This is not the present case. The starting point is clearly indicated and the lack of definition complained of is no more than an absence ef detail in a small part of the verbal description. Moreover, Peters J. did not have the benefit of a map to clarify any doubts. As a rule of construction, the maxim must be understood in the light of the observations of Lord Parker in Eastwood v. Ashton [1915] A.c. 900, (at pp.912-13): "It was suggested that help might be derived from the maxim, Falsa demonstratio non nocet. It is Clear, however, that this maxim is useless unless and until the Court has made up its mind as to which of two or more conflicting descriptions ought under the circumstances to be considered the true description. When this is done the false description may, of course, be disregarded, and the maxim merely calls attention to this obvious result. There are in some of the authorities expressions from which it might be inferred that as soon as you have a description in a conveyance which, taken in connection with the extrinsic evidence, fairly identifies a particular parcel or particular parcels of land, that description should be adopted and everything subsequently contained in the indenture which in any way conflicts with it be rejected as a false demonstration. There a re Terr spe 16. are, however, numerous cases which show that the order in which the conflicting descriptions oceur is not at all conclusive. If such a principle as suggested were applied to the present case the result would be to exclude from the conveyance the whole of Cartman's holding as well as the disputed strip. It seems to me that under these circumstances the Court must in every case do the best it can to arrive at the true meaning of the parties upon a fair consideration of the language used and the facts properly admissible in evidence." (see also Naismith v. Smith (1954) V.L.R. 567 per Hudson J. at p.572.) Similar reasoning should be applied here. By looking at the description as a whole and by having regard to the attached map, it is possible to identify the land claimed and it is not appropriate, for this purpose, to resort to rules of construction ef legal documents, which, in some cases, for instance, the "contra proferentem" rule, can have an artificial operation (see J. Fenwick & Co. Pty. Ltd. v. Federal Steam Navigation Co. Ltd. (1943) 44 S.R. (N.S.W.) 1 per Jordan C.J. at pp.4-6). It is hardly necessary to add that a conclusion in the present case that the verbal description, when read with the attached map, is sufficient to identify the land claimed is not necessarily inconsistent with conclusions in other cases relied upon by the Attorney-General where the description of the area in question was so vague and obscure that the claim was held bad for uncertainty (see, e.g., In re Strickland (1924) 3 L.V.R. 144 per Pike J. at p.160; Yeomans v. Peter (1895) 16 L.R. (N.S.W.) (Eq.) wes 17. 197; Stephen v. The Councillors and Ratepayers of the Shire of Belfast (1870) 1 V.R. (L.) 59. They establish no matter of principle and are simply cases on their own facts. For these reasons, the first ground of challenge by the Attorney-General should be rejected. The second ground of challenge arises from the following part of the description (at line 16): "Then easterly, then southerly [point "13'] then westerly along the boundary of McLaren Creek Pastoral Lease to that boundary's intersection with the westernmost boundary of Kurundi Pastoral Lease." [Point "14"]. (Emphasis added) The emphasised reference to "westerly" is an obvious mistake. It should be read as "easterly" - as the map clearly indicates. But such a patent error cannot vitiate the description. In Fitzgerald v. Masters (1956) 95 C.L.R. 420 Dixon C.J. and Fullagar J., speaking of the ordinary processes of construction, said at pp.426-7: "Words may generally be supplied, omitted or corrected, in an instrument, where it is clearly necessary in order to avoid absurdity or inconsistency." It follows that this ground of challenge should also be rejected. In the result, both proceedings must be dismissed with costs. spare Counsel and Solicitors for Prosecutor: Counsel and Solicitors for the First Respondent: the Australian Government Counsel and Solicitors for the second Respondents: Mr. Neil Andrews, Central Land Date of hearing: Date Judgment Delivered: 18. Py Mr. David Bennett Q.C. with Mr. David Barrett instructed by Messrs Freehill Hollingdale & Page. Mr. R. Plibersek instructed by Solicitor. Mr. R. Howie instructed by Council, 33 Stuart Highway, Alice Springs. 23 October 1986 11 November 1986 I certify that this and the preceding fn. d/ (/7) pages,are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Beaumont. Rta Aate fi/ Associate Dated: // Afewenanld "FYFE ane eee ST ortayegr nee . a ANNEXURE "A" _ nae ~~ . : Alice Springs CENTRAL LAND COUNCIL (INCORPORATED UNDER THE ABORIGINAL LANO AIGHTS {NORTHERN TERRITORY) ACT 1976) eee Talephone 623800 75 HARTLEY STREET, 623978 ALICE SPRINGS, N.T. 5750 823676 P.O BOx 1960 * Our Ref: Your Ref: NOTIFICATION OF CLAIM UNDER ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) ACT, 1976 TITLE OF CLAIM: The Warramunga/Alyawarra claim to an area between Dalmore Downs and Tennant Creek. Traditional Aboriginal Owners. The claim is made jointly on the behalf of several Warramunga Clans: Claimants include; Murphy Japanangka Dick Riley Japanangka Vince Japanangka Ne as Naren oe DESCRIPTION OF LAND CLAIMED: Rs 4 ' z 'an area of Unalienated Crown Land in the Tennant Creek area. The claim area 2 is bounded by a line commencing at the easternmost point of the northern fg boundary of Epenarra Pastoral Lease then due north to the southern boundary hs 4 of Dalmore Downs Pastoral Lease, then west and then north to the junction a of the western boundary of Dalmore Downs Pastoral Lease, with the southernmost : : 6 boundary of Rockhampton Downs, then west, then north and then west along the a. boundary of Rockhampton Downs Pastoral Lease, and the southern boundary of '3 8 Burnchilly Pastoral Lease to the eastern boundary of Phillip Creek Pastoral , q Lease then following the boundary of Phillip Creek Pastoral Lease, in a i 10 southerly, then westerly, then southerly, then easterly, then northerly, then r- north easterly, then easterly, then southerly, then westerly, then northerly 12 and then westerly direction to the easternmost point of the northernmost ; boundary of Tennant Creek Pastoral, then along the boundary of Tennant Creek 4 14 Pastoral Lease, southerly, then westerly, then southerly, then easterly and 1 then southerly to the westernmost point on the northernmost boundary of i 16 McLaren Creek Pastoral Lease. Then easterly, then, southerly and then westerly 30 along the boundary of McLaren Creek Pasteral Lease. to that boundary's intersectiof | 18 with the westernmost boundary of Kurundi Pastoral Lease. Then northerly, , . then easterly, then northerly, then easterly along the boundary of Kurundi 20 Pastoral Lease to its junction with the western boundary of Epenarra Pastoral Lease. Then northerly and then easterly along the boundary of Epenarra Pastoral i a 22 Lease to the point of commencement, but excluding areas within the area so rE enclosed defined as a town under the terms of the Aboriginal Land Rights Lr: 24 (Northern Territory) Act, 1976, Section 3 (1). MH The land claimed is shown on the attached map. oO 614) 4 $31 . . Wel HALLOW, 'we ae tsa ial HELEN SPRINGS wig, { satiny | u 75S | 677 6 A ROCKHAMPION GOWNS Bes ' BANKA bANEA F315 ten? 1228tim? ee CEN " 7 599; oa 2 '/ ne , POF) " \ j ~~ ' F sr?' V/ / 7 : _ — ALROYOaWAS = we r Priv? Ta Tt : ALEXAADRI oye IP CREEK Gh V/, Poperene | ERE a, AL e777 , 8562 kn? rr 428 ISf kan? a & SS 245 tm? TENNANT CREEK nl £ + an M52 ha? we Vy / -McLAREN | CRFIK 4) Pra + = ee th Litto Js5tkm? De ol Site? Tee "KUPUNDL " He : oes , SINGAE BO 4978 km? My ff oe n I Pay ahd 581 { . -—-—— —- _ be NEUTRAL r Junction GEORGIKA DOWNS \~ . y - "ep '" a i " ye MURRAY DOWNS ANNITOWA . ' . Sf ! TN one 2 : 5597 km? foe f toga io F Laxe ¢ "int 'tw? pf \XP es 636 ARGADARGADA \ 7 24 Mt Hagan iw 1 7s — ih tae ee So >? RR aie 7 50itkw?, *S $547 bat " MOUNT SKINNER. . 624 ' 770 . ~ H : 7 47am? . NW ae ke fee g . rey PHL] - moa MANRERS CREEK , 1 J00tkon? ' 4 : 3 200i LUCY CREEK : 42 was 680\, vee | AUT Be? ot - DGREEN/ ~ t mau atrrap oC MOR eo 4. 'aes co 4 : . ' it " » Pixvid Tee dae " ake 604 sng 7 ent A ser ae 119Shw? te N. 2434 im? __ "gin _ . am wr 620 | 65? Tf PHU?" ] : ar ' 579 A ony 4 { | iy PHte - see . Po eee - i. ae ee ENLARGEMENT A Seale 40 chara toonuch TO 78407 aw a if ENLARGEMENT 'D' Scale 50 chans to an wen Crag ren 66550 Ene, Ne No, e Ny 187876 ana Levels NT Por, 1375 Mae aot Nid, PI Aw need oh LTA, Vs / | 2 cre, | Mr Nteahes Witta 75h ae 4c evels crf Hs | Ae Total area 1430 SqM ex NT Pors 870 NOS, HOG Stock Route, Rong & OT Line ENLARGEMENT 'E' ke Scale @mules to an wich SOLE Gimules to an wnreh Au q "I State 10. Measurements un links 6,000 tfeoo ao afs BAR ENLARGEMENT 'Cc' Scare 200 links bo an inch +k Pere rat up" + és ~ = ee PL64 ge ENLARGCHETIT 7L.646 ~ os NOT To ANNEXURE Zzne) Soa a \ =zs3 o ENLARGEMENT 'g' Scale 50 ina "iad VF Gp Ter f thaws to an uch OP Tay ts the Lind hated gd blue on the oald plant sny presenta, rishta, mre ap pedstt@ = tee thes sr steraqin, pow cline PT texdla, BI60° 7 f ——-—_— ulinw ty uo. Vyee NU POND he Seaue ay Lr er Ma ee fe coepert Fur eve utd ny LAL Q hee ee ene ererad, WT) ra Ohia plan da sasuet t 00 wursya uo on to wwe Teertiry trot uu ( uiveyornr, Walien of ase ¢t ye UE td du Conte sel area wy wae ' . SPNCME AD beus fatawe te pease whee rE ROCKHAMPTON powus Lene 5 _ rm . | 9) ae BRUNCHILLY ~ —_—— agen "VR " <x DALMBRE DOWNS Nn 4788 tm? ~ TENNANT * CREEK ' EPENARRA ts o KUBUNDI ithe MURRAY DOWNS ' AWNINGIE DERRY DOWNS i} BUNDEY , ] 712 , a NE WOOOGREEN ' 1 M23kat 1Y LO DO fi Fvsens — mount AIDOCK +S - are . ' ' c antitad i whom Cre bars Print! 1P CREEK TENNANT CREE 12, 3652 ta? 15 NEUTRAL IUNCTION Nate ue Am ynee HN ins 12 y wed OGAEEN $80), wars ahta A Jit in ae 5597 dat ANNSAURG =D" ae) § of sou 534 5 '] Wet HALLO? ¢ ap J ' Ssgpinr + CRESSWILL DOWNS ' 5st ANTHONY tAGNO' "Clann . e P) . My ., ; * \ 63 ie >| \ IVA DOWNS 402 im! 6257 hm? $37 ort mone 653) . _ ? & A ROCKHAMPTON DOWNS 199m? Ima? ' yee bn? 3 . S994, 1 q ' i _. ALROY AMWAS | fe Aimee "4 ae a ey OALMGRE ONWNS > re tlhe de a" LUX DRA Myte Lives THB MUTTIEGAN ". Sheesh MS rime oy ro ies a a ouNT Om So ' : \ 'tte [ permet = f / j + ' Sh ARGADAAGADA } af Moyeth 1 ' os oa $0iSta? , \ $547 ba? { : 770 . r . \ &. = . i- [ PHU MANNERS CREEK Ve 1 ~ Lucr cRrex ; 438) im? . d ay sHAPUNYA f 845 il = 7 if JON Paitin?