(DS /[& CATCHWORDS ABORIGINAL LAND RIGHTS - Area claimed includes declared stock routes - Whether stock routes constitute "land on which there is a road over which the public has a right of way" - Whether Aboriginal Land Commissioner has jurisdiction to entertain claim - Whether declared land is "unalienated Crown land". PREROGATIVE WRITS - Prohibition - Prematurity. Aboriginal Land Rights (Northern Territory) Act 1976 ss.3, ll, I2, 21, 50, 51. Crown Lands Ordinance (NT) 1931 s.113 Acts Interpretation Act 1901 s.38 Judiciary Act 1903 s.39B Permanent Trustee Company of New South Wales Limited v Campbelltown Municipal Council (1960) 105 CLR 401, Suffolk County Council v Mason 11979] AC 705, Rapley v Martin (1865) 4 SCR (NSW) 173, Randwick Municipal Council v Rutledge (1959) 102 CLR 54, Attorney General v Hagar (1864) 3 SCR tisw) 234, Re O'Dowd; arte Commonwealth Bank Officers' Association (1984) 3 FCR ere Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369, Re Gray; EY parte Marsh trSé5) 59 ALJR 804, Queen v Evatt; Ex parte the Master Builders' Association of New South Wales Trs7a} 132 CLR 150, Re Independent Schools; Staff Association (Act); Ex parte Hubert (1986) 65 ALR 673, Queen v Federal Court of Australia; Ex parte Pilkington ACI (Operations) Pty Limited (1978) 142 CLR 114, Aboriginal Sacred Sites Protection Authority v Maurice (1986) 65 ALR 247 referred to. NSW G.525 of 1986 IN THE MATTER OF THE MATARANKA AREA LAND CLAIM and IN THE MATTER Of an Application for a Writ of Prohibition against THE HONOURABLE MICHAEL DAVID ANDREW MAURICE, ABORIGINAL LAND COMMISSIONER; ATTORNEY-GENERAL FOR THE NORTHERN TER Y AND Wilcox J Sydney 27 November 1986 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION No. G525 of 1986 www IN THE MATTER OF THE MATARANKA AREA LAND CLAIM Prosecutor IN THE MATTER of an Application for a Writ of Prohibition against the HONOURABLE MICHAEL DAVID ANDREW MAURICE, ABORIGINAL LAND COMMISSIONER; ATTORNEY GENERAL FOR THE NORTHERN TERRITORY AND THE NORTHERN LAND COUNCIL Respondents and EX PARTE, BANIBI PTY LIMITED CORAM: WILCOX J DATE: 27 NOVEMBER 1986 PLACE: SYDNEY MINUTES OF ORDER THE COURT ORDERS THAT: 1. The order nisi granted on 14 November 1986 be discharged. 2. The stay of proceedings in the Mataranka Area Land Claim granted by Bowen CJ on 14 November 1986 be dissolved. 3. Banibi Pty Limited pay to the Northern Land Council the costs of the said respondent in respect of these proceedings. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G525 of 1986 GENERAL DIVISION ) IN THE MATTER OF THE MATARANKA AREA LAND CLAIM Prosecutor IN THE MATTER of an Application for a Writ of Prohibition against THE HONOURABLE MICHAEL DAVID ANDREW MAURICE, ABORIGINAL LAND COMMISSIONER; ATTORNEY GENERAL FOR THE NORTHERN TERRITORY AND THE NORTHERN LAND COUNCIL Respondents and: EX PARTE, BANIBI PTY LIMITED CORAM: Wilcox J DATE: 27 November 1986 PLACE: Sydney REASONS FOR JUDGMENT On 14 November 1986 Bowen CJ, on the application of Banibi Pty Limited, issued an order nisi addressed to the Hon. M.D.A. Maurice, the Aboriginal Land Commissioner, requiring him to show cause why a Writ of Prohibition should not issue in relation to the hearing by him of an Aboriginal land claim known as the Mataranka Area Land Claim. Two additional respondents were named 2. in the order: the Attorney General for the Northern Territory, who has appeared by counsel to support the case made by the prosecutor, and the Northern Land Council, an organization constituted under s.21 of the Aboriginal Land Rights (Northern Territory) Act 1976, which has supported the Mataranka Area Land Claim and which appeared by counsel before me to oppose the issue of a Writ of Prohibition. The Aboriginal Land Commissioner appeared by counsel to submit to such order as the Court thinks fit, except in relation to costs. The relevant facts are not in dispute. On 16 November 1983 the Northern Land Council lodged with the Aboriginal Land Commissioner, pursuant to s.50(1)(a) of the Act, the Mataranka Area Land Claim. The claim was lodged on behalf of certain named individuals who claimed to be the traditional Aboriginal owners of the land. The application has been amended from time to time put, at all stages, the claim has included certain areas of land which lie within the boundaries of two stock routes, the Urapunga Stock Route and the Birdum Stock Route, declared in 1933 pursuant to s.113 of the Crown Lands Ordinance 1931. That section provides: "113. (1) The Minister may, by notification in the Gazette, declare routes, not exceeding one mile in width, through any land held under lease or Licence, to be routes for the passage of travelling stock. (2) Any route defined in pursuance of the last preceding sub-section shall be deemed to be a "recognized route" for the purposes of section twenty of the Stock Diseases Ordinance 1927-1930 of North Australia and the provisions of that section shall apply to persons driving or conducting stock along that route." The relevant declaration, which was published in the Commonwealth Gazette of 17 August 1933, was as follows: "By virtue of the provisions of Section 113 of the Crown Lands Ordinance 1931, I, John Arthur Perkins, Minister of State for the Interior, do hereby cancel all previous notifications declaring certain routes to be stock routes and, in lieu thereof, declare the routes described in the schedule hereto to be routes for the passage of travelling stock and "recognized routes" for the purposes of section twenty of the Stock Diseases Ordinance 1927-1930 of North Australia. Purther I declare that all such routes shall be one mile in width, ie half a mile on either side of the lines described except in any parts where station fences limit this width on one side or the other. Dated this eleventh day of August, 1933. J.A. PERKINS, Minister of State for the Interior." The Schedule listed 12 stock routes, including the subject stock routes. For the purposes of this proceeding the Northern Land Council does not dispute either the validity of the declaration of the stock routes or the fact that part of the land the subject of the claim lies within the boundaries of the stock routes as described in the Schedule to the declaration. Section 50 of the Aboriginal Land Rights (Northern Territory) Act sets out the functions of the Aboriginal Land Commissioner. For present purposes the relevant part of that section is sub-s. (1)(a) which is as follows: 4. "50(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." The term "Crown land" is defined by s.3 in this way: "'Crown Land' means land in the Northern Territory that has not been alienated from the Crown by a grant of an estate in fee simple in the land, or land that has been so alienated but has been resumed by, or has reverted to or been acquired by, the Crown, but does not include - (a) land set apart for, or dedicated to, a public purpose under the Lands Acquisition Act 1955 or under any other Act; or (b) land the subject of a deed of grant held in escrow by a Land Council." By the same section "unalienated Crown Land" is defined as meaning "Crown land in which no person (other than the Crown) has an estate or interest, but does not include land in a town". Section 11(1) deals with the position where the Aboriginal Land Commissioner has recommended to the Minister - pursuant to s.50(1)(a) - the grant of the land, or part of the Land, the subject of a claim. If the Minister is satisfied that the land should be granted, he is required by s.11(1) to establish the S. necessary Land Trust or Trusts, to acquire the estates or interests of persons other than the Crown in alienated Crown land and thereafter to recommend to the Minister that a grant of an estate in fee simple in that land be made to the relevant land Trust. Section 11(1AB) contains provisions to similar effect, applicable to the case where a suitable land Trust is already in existence and s.11(1lAD) deals with the situation where there is a recommendation for the establishment of a multiplicity of Land Trusts but the Minister decides to establish only a single Land Trust. Section 11(3) imposes a limitation upon the Minister's power of recommendation. It provides that, in sub-ss. (1), (1AB) and (1AD), the word "Land" is not to be read as including a reference to any land "on which there is a road over which the public has a right of way". Section 12 confers upon the Governor General power to issue deeds of grant in accordance with the Minister's recommendation. Sub-section (3) of that section relevantly provides: "12(3) A deed of grant under this section ... (a) shall identify any land on which there is, at the time of the execution of the deed of grant, a road over which the public has a right of way; and (b) shall be expressed to exclude such land from the grant." I was informed by counsel that the question whether a stock route declared under s.113 of the Crown Lands Ordinance is a "road 6. "has been considered in which the public are entitled to use connection with a number of land claims. Counsel said that both Toohey J and Kearney Jd, reporting as Aboriginal Land Commissioners, had held that it was not. In his report on the Ti-Tree Station Land Claim, Maurice J held to the contrary. That decision is now under challenge in proceedings in this Court likely to be heard by a Full Bench early in 1987. At a directions hearing in the present case, on 3 November 1986, reference was made to the question whether the stock routes were roads over which the public has a right of way. Counsel for the Northern Territory Government submitted that this question ought to be determined as a preliminary matter. Counsel submitted that the Commissioner lacked jurisdiction to entertain so much of the claim - a major part of it - as related to the declared 'stock routes. On behalf of the Northern Land Council it was argued that the prohibitions contained in ss. 11(3) and 12(3) of the Act did not go to the Aboriginal Land Commissioner's jurisdiction to hear the claim and that it was undesirable that the issue be determined in advance. Reference was made to the likelihood of delays in the ultimate determination of that matter and to the danger that any such delay might result in the loss of much valuable evidence. Some of the major witnesses to be called on behalf of the claimants are elderly. In the result Maurice J decided to sit during the week commencing 1 December 1986 and, in that week, to take evidence in the 7. matter. In respect of the jurisdictional issue said to be raised by the fact that the claim includes the stock route land - and a related question whether the Roper River is a "road which the public are entitled to use", which has not been debated before me - Maurice J said this: "As far as the question of my jurisdiction to conduct an inquiry into those parts of the claim areas that are said to be stock routes is concerned, I do not propose at this stage fixing a date to deal with that. I will leave it open to any participant in the inquiry to raise again during the week commencing 1 December the question of how and when that issue should be dealt with. I do not propose at this stage giving any direction as to when we shall finally determine the jurisdictional issues other than those relating to stock routes. Perhaps I ought to add when I am talking about stock routes I also mean to include the public highway argument on the river, if everybody understands what I mean. I do not propose to give a direction as to when I will deal with these other jurisdictional issues. I think it would be wise if everybody worked on the footing that we will try to dispose of them in February some time." Following that directions hearing the applicant obtained the issue of the order nisi. The present proceedings are taken pursuant to s.39B of the Judiciary Act 1903. It is conceded that the Aboriginal Land Commissioner is, within the meaning of that section, an "officer of the Commonwealth" so that, in a proper case, prohibition will lie. Counsel for the prosecutor have elaborated the proposition that a stock route declared under s.113 is a road which the public are 8. entitled to use. They say that such a declaration, made on behalf of the owner of the land, the Crown, is sufficient at common law to constitute the land a road. They point out that the legal concept of a road is broader than the popular concept and that it is immaterial that the land be physically unsuitable for vehicular traffic: see Permanent Trustee Company of New South Wales Limited v_ Campbelltown Municipal Council (1960) 105 CLR 401. In Suffolk County Council ov Mason [1979] Ac 705 at pp 709-710 Lord Diplock said that three kinds of highways were known to the common law: the full highway - or "cartway" - over which persons may proceed on foot, riding or with vehicles or cattle, the bridleway "over which the rights of passage are cut down by the exclusion of the right of passage with vehicles and sometimes, though not invariably, the exclusion of the right of driftway, te driving cattle", and, finally, footpaths. Counsel for the prosecutor suggests that a stock route may be regarded as the Australian equivalent of a driftway. In Permanent Trustee, at p 420, Windeyer J set out the common law rule relating to the creation of a public road: "It is the public right to use the land as a way, rather than its physical nature, that makes land a highway. At common law a highway was created when a competent landowner manifested an intention to dedicate land as a public road, and there was an acceptance by the public on the proferred dedication". At this stage there is no evidence as to the extent of any public use of the relevant parcels of land as a stock route; there is no 9. evidence of "an acceptance by the public". But counsel for the prosecutor argue that this does not matter, that in the case of a dedication by the Crown acceptance is not a necessary element of the creation of a road. They refer to Halsbury's Laws of England (4th Ed.) Vol. 21, para 91. See also Rapley v_ Martin (1865) 4 SCR (NSW) 173 at pp 180~-181. The Permanent Trustee case was one in which the alleged dedication was by a private individual; the land having been left as a road in a private subdivision. Counsel for the prosecutor say that the effect of the dedication by the Crown of land as a road is that the land thereby ceases to be Crown land, or at least unalienated Crown land. They refer to what was said by Windeyer J in Randwick Municipal Council v Rutledge (1959) 102 CLR 54 at p 74, in relation to the dedication of recreation areas but in a context which suggests that his Honour may also have had roads in mind: "Land reserved from sale did not pass from the control of the Crown. But lands granted for public charitable purposes were removed from the control of the Crown and were properly described as dedicated ..."" See also Attorney General v_ Eagar (1864) 3 SCR (NSW) 234 at pp 259-260. Counsel for the Northern Land Council does not concede the correctness of any of the propositions put against his client; but he does not presently put any argument to the contrary. In relation to ss. 11(3) and 12(3) he says that those provisions do 10. not affect the jurisdiction of the Aboriginal Land Commissioner to hear an application. By s.50(1)(a) of the Act the Commissioner is empowered to deal with any claim for "unalienated Crown land" for the purpose, firstly, of ascertaining whether the claimant or any other Aboriginals are the traditional Aboriginal owners of the land and, secondly, to report his findings to the Minister and to the Administrator. The condition of jurisdiction, counsel contends, is that there be a claim for "unalienated Crown land", as that term is defined in s.3. The argument proceeds that it is only where the Commissioner finds that there are traditional Aboriginal owners that he reaches the stage of making recommendations to the Minister for a grant of land. But such a grant must be in accordance with ss. 11 and 12 of the Act - including the limitations expressed in ss. 11(3) and 12(3) - so that the Commissioner may be expected to exclude from any area the subject of a recommendation any land which he finds to be a road which the public are entitled to use. Counsel submits that provisions directed to the Minister (s. 11(3)) and the Governor General (s. 12(3)) cannot reduce the extent of the jurisdiction conferred by s.50(1)(a) upon the Commisioner. It is said that the only effect of the inclusion of a road in land recommended for grant would be that, if the correct situation were perceived in time, the recommendation would, to that extent, be nugatory. In my opinion the submissions made on behalf of the Northern Land Council should be accepted. For the reasons just set out, in ll. reference to the argument for the Northern Land Council, the prosecutor's case must depend upon the proposition that the land the subject of the claim is not "unalienated Crown land" within the meaning of s.50(1)(a). It was in recognition of that fact that counsel referred to Rutledge and to Eagar. But the a@ifficulty about the argument is that "unalienated Crown land" is a defined term, and is defined in such a manner as to exclude only land which has been alienated from the Crown by a grant of an estate in fee simple in the land; which is not - on any view - this case. Unless it can be said - and this has not been suggested in argument - that there is an indication in s.50(1)(a) of an intention to use the term "unalienated Crown land" in a sense different from the definition in s.3, the crucial proposition for the prosecutor must fail. I see no indication of such an intention. It would be unusual for the draftsman of an Act to use in a critical provision a term in a manner conflicting with its defined meaning. For the sake of completeness I note that counsel for the prosecutor do not rely upon para (a) in the definition of "Crown Land". Their reason was that the land was set aside under an Ordinance rather than under a Commonwealth Act: see s. 38(1) of the Acts [Interpretation Act 1901 and Re O'Dowd; Ex parte Commonwealth Bank Officers' Association (1984) 3 FCR 150 at p 152. 12. In my view, even if the effect of the declaration of the stock routes was to create roads "over which the public has a right of way", the land the subject of the declaration remained "unalienated Crown land" within the meaning of s.50(1)(a), with the consequence that the Aboriginal Land Commissioner has jurisdiction to embark upon and complete his inquiry and to make his report, including - if appropriate - recommendations for a grant of land. In the course of that inquiry he will, no doubt and as he has already indicated, consider whether the stock routes - or either of them - have that status and take that matter into account in any recommendations he may make. It is probable that, by the time he considers his recommendations, Maurice J will have the benefit of the decision of the Full Court in the Ti-Tree Station case. Having regard to the pendency of that case, the fact that the matter has not been fully argued before me and as it is unnecessary for me to do otherwise for the purposes of determining these proceedings, I refrain from expressing any view upon the question whether a stock route is "a road over which the public has a right of way" within the meaning of ss. 11(3) and 12)3). I should add that, even if I had been of the opinion that there was a real question of jurisdiction, I would have taken the view that the present application was premature. The Aboriginal Land Commissioner is, and is required to be (see s. 53), a Judge of the Supreme Court of the Northern Territory. The grant of jurisdiction to a superior court ordinarily carries with it the 13. power to determine conclusively, subject to any appeal, the existence of the facts upon which jurisdiction depends: see Parisienne Basket Shoes Pty Ltd v_ Whyte (1938) 59 CLR 369; Re Gray, Ex parte Marsh (1985) 59 ALJR 804. This principle will generally extend to a grant to a body of status commensurate with that of a Court: see Queen v_ Evatt; Ex parte the Master Builders' Association of New South Wales (1974) 132 CLR 150; Re Independent Schools' Staff Association (ACT), Ex parte Hubert (1986) 65 ALR 673. Only where excess of jurisdiction is clear will prohibition be granted. And prohibition will be granted only when the relevant Tribunal has decided to do an act which is in excess of jurisdiction: see Queen v_ Federal Court of Australia, Ex parte Pilkington ACI (Operations) Pty Limited (1978) 142 CLR 114 at pp 126-127. In the present case, the Commissioner has made no such decision. He has taken note of the point regarding jurisdiction and has indicated that he will deal with it. He has indicated that, in the meantime and to guard against the possible loss of evidence, he will take evidence. It is for the Commissioner to determine the proper course of the inquiry: see s.51 of the Act and the discussion of that section by Toohey J in Aboriginal Sacred Sites Protection Authority v Maurice (1986) 65 ALR 247 at pp 260-261. It would be appropriate to interfere, by prohibition, with the Commissioner's conduct of the inquiry only if it were already manifest that, absent prohibition, the Commissioner would exceed his jurisdiction. 14. The order nisi should be discharged. The stay of proceedings in the Mataranka Area Land Claim granted by Bowen CJ should be dissolved. The prosecutor must pay the costs of the Northern Land Council. There should be no order as to the costs of the Northern Territory Government. I certify that this and the thirteen (13) preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Wilcox Associate: wa . eee Dated: 27 November 1986