CATCHWORDS Aboriginals - land rights - area claimed including declared stock routes - whether stock routes constitute land on which there is a "road over which the public has the right of way". Words and Phrases "road", "highways" - whether the stock route 1s a "road" for the purposes of the Aboriginal Land Rights (Northern Territory) Act 1976 ss.1l and 12. Statutory Interpretation - reference to Second Reading Speech in order to remove doubt as to meaning of legislation - reference to subsequent history of legislation in order to remove doubt as to meaning of legislation. IN THE MATTER of an Application for a Writ of Prohibition against the HONOURABLE MICHAEL DAVID ANDREW MAURICE, ABORIGINAL LAND COMMISSIONER (First Respondent) AND BILLY BOY FOSTER JAMPIJINPA & ORS (Second Respondent) AND IN THE MATTER of the WARUMUNGU LAND CLAIM EX PARTE, the ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA (Prosecutor) No. G304 of 1986 Sweeney, Beaumont and Burchett JJ. Sydney Ly P£ CEIVED ( 26.NOV iSE7 J FESR, COURT OF ea , AUSTRALIA ery Panecpet CON 26 November 1987 y aH tt Cx SQ ys -7 a os wee gee ot —t IN THE FEDERAL COURT OF AUSTRALIA ) i ) . NEW SOUTH WALES DISTRICT REGISTRY } No. G304 of 1986 : ) 7 GENERAL DIVISION ) SPECIAL CASE PURSUANT TO SUB-S. 25(6) OF THE FEDERAL COURT OF AUSTRALIA ACT 1976 IN THE MATTER of an Application for a Writ of Prohibition against the HONOURABLE MICHAEL DAVID ANDREW MAURICE, ABORIGINAL LAND COMMISSIONER So cal ete First Respondent AND: BILLY BOY FOSTER JAMPIJINPA & ORS " Second Respondent AND: IN THE MATTER of the WARUMUNGU LAND CLAIM : TT : EX PARTE, the ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA - Prosecutor MINUTE OF ORDER 7 COURT: SWEENEY, BEAUMONT AND BURCHETT JJ. oe U DATE OF ORDER: 26 NOVEMBER 1987 re + ee eo WHERE MADE: SYDNEY THE COURT ORDERS that the questions in the Special Case be answered as follows: Question 1 se we Is the said stock route "land on which there is a road over which the public has a right of way" for the purposes of the Aboriginal Land Rights (Northern Territory) Act 1976 by virtue of the 1933 proclamation ie alone? eae orice Answer: No. Se einee a Question 2 If yes, does the Aboriginal Land Commissioner have jurisdiction under paragraph (a) of subsection 50(1) or under subsection 50(3) of the Aboriginal Land Rights (Northern Territory) Act 1976 in respect of any land comprised and described within the said stock route? Answer: This question does not arise. THE COURT FURTHER ORDERS that the prosecutor pay the costs of the respondents of these proceedings. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. eee eee ene a id pry yo oy mmr pr te ee a IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G304 of 1986 ) ) AND AND GENERAL DIVISION IN THE MATTER of an Application COMMISSIONER THE COURT: PLACE DATE for a Writ of Prohibition against the HONOURABLE MICHAEL DAVID ANDREW MAURICE, ABORIGINAL LAND First Respondent BILLY BOY FOSTER JAMPIJINPA & ORS Second Respondent IN THE MATTER of the WARUMUNGU LAND CLAIM EX PARTE, the ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA Prosecutor Sweeney, Beaumont and Burchett JJ. Sydney awG@ AeveEmaea "FET - more ose st |r REASONS FOR JUDGMENT Sweeney, J. The full history of the proceedings which have given rise to this case and their statutory background are set out in the reasons of Beaumont J. In the course of a hearing under the Aboriginal Land Rights (Northern Territory) Act 1976 ("the Act") a question arose whether a stock route proclaimed in 1933 is, by virtue of that proclamation alone, "land on which there is a road over which the public has a right of way" for the purposes of the Act. In the matter of an application for a writ of prohibition against the Aboriginal Lands Commissioner ("the Commissioner"), in which the Attorney General for the Northern Territory of Australia is prosecutor, the learned Chief Judge has reserved that question for consideration by a Full Court. Under sub-sec 11(3) of the Act, if the stock route so proclaimed be such a road, it may not be included in land which the Commissioner may recommend for grant. The Act contains no definition of a road and in an attempt to elucidate its meaning we have had the benefit of many references to highway law, which are set out in the reasons of Beaumont, J. Those references have taken us through, amongst other things, the bridle paths and driftways of England, half the world away from the mile-wide stock fw routes which extend over thousands of miles of the Northern Territory. If one were to follow the course of considering only the proclamation of the stack route and the phrase in the Act, "land on which there is a road over which the public has a right of way", there would be a good deal to be said for the proposition that the stock route fell within that phrase. However, when the Parliament came in 1976 to consider the bill which became the Act, there had been for many years in the Northern Territory two discrete sets of ordinances dealing, in the one case, with roads and in the other, with stock routes. These ordinances have been referred to in detail by Beaumont J. By the Control of Roads Ordinance 1953, all roads, which were defined without any reference to stock routes, were vested in the Commonwealth and were under the control of the Administrator (see s.7). That ordinance dealt with such subjects as the opening and closing of roads, the declaration of roads, and the use of roads by vehicles. No provision of this ordinance referred to stock routes. The maintenance and control of stock routes was dealt with in the Stock Routes and Travelling Stock Ordinance 1954, which does not purport to deal with roads. When the Act excluded from land which may be recommended by the Commissioner for grant "land on which there is a road over — a wth pM roma gg = which the public has a right of way", is it to be construed as so excluding the extensive system of stock-routes in the Northern Territory? It is not to be supposed that the Parliament, when it came to consider what land should be incapable of being included within a recommendation of the Commissioner, was unaware of the separate treatment in the ordinances of roads and stock routes. The Parliament chose to use the word "road", without defining it. It did not say "road or stock route" as it might easily have done, had there been any intention to exclude stock-routes. It is to be remembered that the area of the latter amounted in total to some thousands of square miles, which would have been a substantial exclusion, even bearing in mind the vast area of the Territory. When the Parliament used the term "any road", it did not, in my opinion, do so in any sense which included any stock route. If that conclusion were attended by any doubt, it would be dispelled by a consideration of the course of debate when the bill which became the Act was before the House of Representatives. Two honourable members had expressed disquiet about the extent of the exclusion arising from the use of the words "any road over which the public has a right of way". In his second reading speech the Minister (Mr Viner) referred to their comments and named "the only such roads" in terms which left no room for thinking that the exclusion extended to stock routes. In my opinion, the Court should answer the first question "No", and order that the prosecutor should pay the costs of the "Qo vt wet eae _—_- — | | proceedings, It is unnecessary to answer the second question. : I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Mr. Justice Sweeney Dated: 2G "WevenBER 192] _ێ- Associate ¢ me ' ne Te IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G304 of 1986 ) GENERAL DIVISION ) SPECIAL CASE PURSUANT TO SUB-S. 25(6) OF THE FEDERAL COURT OF AUSTRALIA ACT 1976 IN THE MATTER of an Application for a Writ of Prohibition against the HONOURABLE MICHAEL DAVID ANDREW MAURICE, ABORIGINAL LAND COMMISSIONER First Respondent AND: BILLY BOY FOSTER JAMPIJINPA & ORS Second Respondent AND: IN THE MATTER of the WARUMUNGU LAND CLAIM EX PARTE, the ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA Prosecutor CORAM: Sweeney, Beaumont and Burchett Ju. DATED: 26 November 1987 REASONS FOR JUDGMENT BEAUMONT J. On 20 November 1978, the Central .Land Council lodged an application under the Aboriginal Land Rights (Northern Territory) Act 1976 ("the Land Rights Act") claiming an area of land in the Territory lying between Dalmore Downs and Tennant Creek. .:The claim, which has been amended several times, is known as the Warumunga/Alyawarra Land Claim ("the land claim"); it eR ey SATE ETT 2. includes several areas being parts of the "North South" stock route ("the stock route") which 1s identified on a map attached to the application. Since the general scheme of the Land Rights Act has been described in a number of reported decisions of the High Court, 1t need not be repeated (see, e.g. The Queen v. Kearney; Ex parte Northern Land Council (1984) 158 C.L.R. 365 at pp-.369-370 and the cases there cited). For our purposes, it will be necessary to refer to s.ll of the Land Rights Act which, in dealing with recommendations for grants of Crown land (other than that described in Schedule 1) contains the following exclusionary provision: "(3) A reference in sub-section (1), (1AB) or (1AD) to land shall be read as not including a reference to any land on which there is a road over which the public has a right of way." (Emphasis added) Similarly, s.12 of the Land Rights Act, in dealing with grants of land to Land Trusts, provides: "(3) A deed of grant under this section in respect of land that is not Schedule 1 land - (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. (3A) A deed of grant under this section in respect of Schedule 1 land shall be expressed to exclude from the grant - (a) any land on which there was, at the time of the commencement of section 3, a road over which public had, at that time, a right of way; and in! 3. (b) 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." (Emphasis added) A question has arisen whether the stock route is "a road over which the public has a right of way" for the purposes of the Land Rights Act. If it is such a road, the land over which the stock route lies must be excluded from the unalienated Crown lands which might be recommended for grant under the Land Rights Act. The legislative history of the stock route should be explained. By s.103 of the Crown Lands Ordinance 1931 (N.T.), the Governor-General may at any time, by Proclamation - (a) resume any Crown lands... (v) for travelling stock reserves; (vii) for roads, tramways, railways, or railway stations; (b) reserve, for the purpose for which they are resumed, the whole or any portion of the lands so resumed;" (This provision was not, in fact, invoked in the present case. The stock route was proclaimed under another provision of the Ordinance, to be mentioned shortly. However, the provisions ie rs . on the one hand and a road on the other). The stock route was proclaimed under s.113 of the Crown Lands Ordinance : '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 subsection 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.' of s.103 are of interest here because they indicate a legislative recognition of the distinction between a travelling stock reserve Pursuant to s.113, by notification 1n the Commonwealth Gazette dated 17 August 1933, the Minister of State for the Interior declared certain routes, including the stock route, to be routes for the passage of travelling stock: "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. Further I declare that all such routes shall be one mile in width, i.e. half a mile on e1ther side of the lines described except in any parts where station fences limzt this width on one side or the other. [Emphasis added] ee ayer ses rary ere rer 5. THE SCHEDULE REFERRED TO No. 6 Bore (On Newcastle Waters-Queensland Border Stock Route) to South Australian Border Commencing at No. 6 Bore (on Newcastle Waters~—Queensland border stock route); thence generally in a southerly direction for a distance of about 210 miles via Yellow Waterhole, west of Helen Springs, Muckety Bore, Radford Springs, Attack Creek Waterhole, Phillip Creek, Tennant Creek (the Stock Well to be the eastern boundary of the route at this point), Kelly Well, Gilbert Well, Bonney Well, Wauchope Well to Wycliffe Well; thence south-westerly for about 13 miles; thence southerly for about 20 miles to Taylor Well; thence generally in a south-westerly direction for about 142 miles via Barrow Creek, Stirling Station, Merino Well, Tea-Tree Well to Prowse's Gap; thence generally in a south-easterly direction for about 90 miles via Ryan Well, Connor Well, Connor Bore, Anthony or Burt Well, Sixteen Mile Bore to the Wigley Waterhole; thence westerly and south-easterly to the Holding Ground at Stuart; thence generally in a_ south-easterly direction for about 190 miles via Deep Well, Frances Well, Alice Well, Junction Well,Crown Point Well, Goyder Junction Well, Charlotte Waters, and by the main road south-easterly to its intersection with the border line between the Northern Territory and South Australia." By s.20 of the Stock Diseases Ordinance 1927 (N.T.) (as mentioned in s.113 of the Crown Lands Ordinance 1931): "(1.) Any person desiring to drive stock across any run, or lands leased from the Crown or Crown lands other than stock reserves shall, before entering upon the run or lands, give to the proprietor of the run or lands, or in the case of Crown lands to the nearest police officer or inspector, not less than two days' nor more than seven days' notice in writing of his intention to drive the stock across the run or lands. (2.)} The notice shall specify - (a) the place from which the stock started; (b) their destination, which shall be by some recognized or prescribed route; ve an real nienene Snenacrtendieliiedaner ieneniened = eee Pay (c) the number and description of the stock; (d) the dates on which the person proposes to enter and leave the run or lands; and (e) the points at which the person proposes to enter and leave the run or lands, which shall be on some recognized or prescribed route." (Emphasis added) In Mundi Mundi Pastoral Co. v. Yandama Pastoral Co. (1924) S.A.S.R. 492, affirmed (1925) 36 C.L.R. 340, it was held that this provision in its South Australian counterpart did not confer upon the owner of travelling stock a right to take them across the lands comprised in a pastoral lease. The Stock Routes and Travelling Stock Ordinance 1954 (N.T.) provided, inter alia, for the maintenance and control of stock reserves and stock routes. By s.37 of that Ordinance: "A person shall not drive stock on the hoof on a stock reserve or stock route -— (a) unless he carries a permit - (i) which applies to those stock; (ii) which applies to the journey on which the stock are being driven; and (111) which applies to the stock reserve, stock route or part of a stock route, on which the stock are driven; or (b) unless the stock are driven within' the boundaries of a holding or land on which the stock are ordinarily kept or depastured or are placed for agistment and are not driven more than fifteen miles along a stock route. ~ Penalty: Four hundred dollars." So cr oy > wore " 7. Permits to travel stock were dealt with by Part IV of the Ordinance. Application for permit (s.18) and_ the responsibility of the owner of stock for payment of permit fees (s.19) were provided for. By ss.20 and 21: "20. - (1.) Upon application being made to him for a _permit, a permit officer or an inspector may issue or refuse to issue a permit. (2.) «ee 21. When a permit officer or an inspector issues a permit he shall sign the permit in the prescribed form - (a) specifying the number and a description of the stock to which the permit applies; (b) stating the name and address of the owner of the stock; * * * * * * * * * (d) specifying the date upon which and the place from which the stock are expected to commence their journey; (e) specifying the date upon which and the place at which the stock are expected to end their journey; (£) specifying the route by which the stock will travel; (g) specifying the means by which the stock will travel; (h) specifying, where the stock will travel on the hoof on a stock reserve or stock route, the stock reserve or stock route or the part of a stock route to which the permit applies; and (i) containing such other matters as are prescribed." By the Stock Routes and Travelling Stock Amendment Act 1982 (N.T.), the permit provisions of the 1954 Ordinance were i . 8. repealed. They were replaced with provisions requiring the issue of a way-b11ll by the owner of the stock. Drovers are obliged to hold a way-bill (s.37) issued by the owner.(s.18). Crown lands in the Territory are now governed by the Crown Lands Act which was enacted in 1979 and has been amended from time to time. It 1s not suggested by any party that this legislation has any bearing upon the present question. The first respondent, Maurice J., the Aboriginal Land Commissioner, is hearing the land claim. In circumstances to be explained later, it is anticipated that his Honour will rule that, by virtue of the proclamation in 1933, the stock route was a "road over which the public has a right of way" for the purposes of the Land Rights Act. The prosecutor, the Attorney-General for the Northern Territory, contending that the stock route is a "road" for present purposes, has instituted proceedings for prohibition and for judicial review. In the proceedings, the Chief Judge has reserved two questions for a Full Court. The first is: 'l. Is the said stock route "land on which there is a road over which the public has a right of way" for the purposes of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) by virtue of the 1933 proclamation alone?' There is no definition of "road" in the Land Rights Act. Nor, until some recent amendments, to be mentioned later, is any stock route mentioned there. A "highway" has a settled meaning under the general law (see Blackstone's Commentaries 15th ed. wee ee 9. (1809) Vol. 1 at pp.356-7; Vol. 2 at p.35; Harrison v. Duke of Rutland [1893] 1 0.B. 142 at p.146; The Mayor, Councillors and Citizens of the City of Brunswick v. Baker (1916) 21 C.L.R. 407 at p.416; The Corporation of the City of Adelaide v. The Attorney-General for South Australia (1931) 45 C.L.R. 517 at p.531; Council of the Municipality of Randwick v. Rutledge (1959) 1lo2 C.L.R. 54 at p.74; Permanent Trustee Company of New South Wales Limited v. Council of the Municipality of Campbelltown (1960) 105 C.L.R. 401 at pp. 411, 412, 415, 420, 422: The Mayor, Councillors and Citizens of the City of Keilor v. O'Donohue (1971) 126 C.L.R. 353 at p.363; Suffolk County Council v. Mason [1979] A.C. 705; Pearce v. The Lord Mayor, Aldermen, and Citizens of the City of Hobart [1981] Tas.R. 334 at pp. 353, 354; Pratt and Mackenzie's Law of Highways, 2lst ed., at p.10; Halsbury's Laws of England 4th ed. Vol 21 at p.1l; Susan Hamilton, The Modern Law of Highways, at pp.l, 2, 3; Bennion, Statutory Interpretation, at p.805; Trindade and Cane, The Law of Torts in Australia, at p.502). But a reference to a road in a statute may refer to a number of things, depending upon 1ts context (see, e.g. Schubert v. Lee (1946) 71 C.L.R. 589 at pp. 592, 593; Kelani Valley Motor Transit Company, Limited v. Colombo-Ratnapura Omnibus Company, Limited [1946] A.C. 338 at pp. 345-346; Buchanan v. Motor Insurers' Bureau (1955) 1 W.L.R. 488; Permanent Trustee Co. of N.S.W. Ltd. v. Council of the Municipality of Campbelltown, supra, per Kitto J. at p.410; patity mpoe Corporation of the City of Tea Tree Gully v. Jennings Estates and Finance Ltd. (1972) 2 S.A.S.R. 354 at p.362; Chellingworth v. rare 10. Territory Insurance Office (1984) 29 N.T.R. 15 at pp.18, 19; Lang v. Hindhaugh [1986] RTR 271 at pp. 274, 275; Pratt and Mackenzie's Law of Highways, supra, at pp.12~-13). The present context is, of course, the unalienated Crown lands of the Territory as at the time of the enactment of the Land Rights Act. At material times, there were in the Territory a number of known stock routes; there were also many roads, including beef-roads. These routes and the beef-roads are described in The Australian Enclyclopaedia, 3rd. ed. (1977) at pp.411-412: "Overlanding and Stockroutes Droving today is carried out mainly along well established stockroutes on which camps and watering places are spaced out at regular intervals. In the 1880s, however, before government bores were provided, drovers required considerable initiative and bushmanship... During this period three main routes were used - the Murranji Track, the Birdsville Track and a third route linking northern Queensland with north-western New South Wales and Victoria. The Murranji Track runs from the Victoria River in the north-west of the Northern Territory eastward to Newcastle Waters, where it joins a route across semi-arid country to the Barkly Tableland and Camooweal in western Queensland; to-day it has government bores every 30-40 kilometres... Modern Developments. Since the 1950s the development of railways, road-trains and meatworks has reduced the extent to which droving is used to move stock. Where rall transport is available it is usually favoured, Since it is faster than droving, and not much more expensive; and 1t is considerably cheaper than road transport. Road-trains consist of up to four stock-carrying trazrlers pulled by a diesel-powered prime mover, and have been widely used to move cattle since the development of beef-roads in many parts of northern Australia..." (Emphasis added) ll. Control of roads in the Territory has long been the subject of specific legislation. By the Control of Roads Ordinance 1953 (N.T.), a "road" was defined (s.5) as follows: PIT '"Road" means - (a) (b) (c) all streets, roads, courts, alleys, thoroughfares and cul-de-sac which were, immediately before the date when this Ordinance comes into operation, public streets, roads, courts, alleys, thoroughfares or cul-de-sac within the meaning of any law then in force in the Northern Territory: all streets, roads, courts, alleys, thoroughfares and cul-de-sac of which the public has had uninterrupted use, whether before or after the date when this Ordinance comes into operation or partly before and partly after that date, for at least five years; and land which, whether before or after the date when this Ordinance comes into operation and whether within the limits of a mineral or gold field proclaimed under the provisions of the Mining Ordinance 1939-1953, or otherwise - (i) 1s proclaimed, dedicated, resumed or otherwise established as a public street, road or thoroughfare; (i1) is opened as a road or is declared to be a road by the Administrator pursuant to this Ordinance; (i1i) is reserved or left as a road in a sub-division of Crown land; (iv) is conveyed or transferred to the Commonwealth in fee simple and is accepted by the Commonwealth as a road; or (v) is used as a thoroughfare passing through or over Crown land, whether alienated or otherwise;' "y= oe 12. The definition in para.(a) was amended in 1958 but the amendment is presently immaterial, The application of the definition in para.(c)(v) was considered, in the context of the common-law principle of dedication, by Blackburn J. in Elizabeth Valley Pty. Ltd. v. Fordham (1970) 16 F.L.R. 459 at p.464 (cf. President &c. of the Shire of Narracan v. Leviston (1906) 3 C.L.R. 846 at p.857). The provisions of the Control of Roads Ordinance should be noticed. All roads in the Territory were thereby vested in the Commonwealth and were under the control of the Administrator (s.7; and see Anthony v. The Commonwealth (1973) 47 A.L.J.R. 83 at p.87). The Administrator is empowered to form and maintain roads (s.8). Detailed provisions were made by Part IV of the Ordinance for the opening and closing of roads. Any person may object to a proposal to open or close a road (s.20). The Minister may authorise the Administrator to order the road to be opened or closed (s.22). On the owner's request, the Administrator may declare a private street or road to be a road for the purposes of the Ordinance (s.35). Part V deals with the use of roads by vehicles. Since self-government in 1978, the 1953 Ordinance has been replaced by the Control of Roads Act 1979, but it is unnecessary to refer to its provisions. As has been noted, under the general law a "highway" is a term of art with a definite meaning; by contrast, a "road" has no settled meaning. The Macquarie Dictionary gives a number of definitions of "road" including - poneny mere wae 13. "l. away, usu. open to the public for the passage of vehicles, persons, and animals. 2. any street so called. 3. the track on which vehicles etc., pass, as opposed to the pavement." Since the meaning of the expression "road", where used in ss.ll and 12 of the Land Rights Act, is not free from doubt, 1t is appropriate, in an attempt to resolve any doubt, to look at the local context. Physically, that context indicated, on the one hand, a "general roadway system" apt for the use of vehicles (see per Menzies J. in the Campbelltown Corporation Case at p.415) and, on the other, stock routes suitable for the passage of livestock over long distances. This distinction was reflected in the local legislation: the Control of Roads Ordinance dealing with roads; and the Crown Lands Ordinance dealing with stock routes. As ordinances of the Legislative Council of the Northern Territory they could not, of course, control the meaning of the Commonwealth statute. yet the local legislation is a relevant matter to be taken into account in considering the meaning of "road" in the Land Rights Act (see The Commissioner of Taxation of the Commonwealth of Australia v. ICI Australia Limited (1971) 127 C.L.R. 529, per Gibbs J. at p.581). It is hardly necessary to add that there is nothing novel in considering the "matrix of facts" in the process of statutory interpretation (see Black-Clawson International Ltd. ve Papierwerke Waldhof-Aschaffenburg [1975] A.C. 591 at p.646; Bennion, Statutory Interpretation at p.263; cf. D.C. Pearce, Statutory Interpretation in Australia (2nd ed.) at pp.39-40.) As Isaacs J. said in considering the meaning of "the most direct track" in Mundi Mundi, supra (at p.369): © ' - Came) = eo cergmenmee soe et 14. 'Tt was laid down in The Lion ((1869) L.R. 2 P.cC. 525 at p.530) that "the meaning of particular words in an Act of Parliament, to use the words of Abbot C.J. in Re. v. Hall ((1822) 1 B.& C. 123 at p.136) 'is to be found not so much in a strict etymological propriety of language, nor even in popular use, as in the subject or occasion on which they are used.'"' There being a doubt as to the meaning to be assigned to "road" for present purposes, it is also legitimate to look at the explanation of the legislation given by the Minister in the course of his second reading speech (see R. v. Bolton; Ex parte Beane (1986-87) 70 A.L.R. 225 at pp.227-8). Mr. Viner said (House of Representatives, 17 November 1976 at p.2817): "Mention was made by the honourable member for Hughes and the honourable member for Mackellar (Mr. Wentworth) of the matter of roads. I think there is some misunderstanding on the part of both honourable gentlemen about the provisions of the Bill. I shall refer to them shortly in order to clarify the point. In clause 11(2) [sic] and clause 12(3) of the Bull there is a reservation of public roads from the grant of freehold title. They are roads over which the public has a right of way. I am advised that the only such roads exist through the Yuendumu Reserve, being the beef road from Alice Springs to Western Australia; the Jay Creek Reserve; the Hermannsburg Reserve, being the roads to Palm Valley and Glen Helen; and the Beswick reserve, being the road to Mainoru Station. No permits have ever been required of people using these roads to travel on to other destinations. The exclusion of the roads from_the Bill by the provisions I have mentioned will change nothing. With the greatest respect to both honourable gentlemen, if they had read the Bill they would have seen that clause 68 preserves the status of lands as reserves, being those lands which are outlined in the Schedule. This could mean that anyone using the public roads technically would still require a permit to enter an Aboriginal reserve and consequently Aboriginal control over the road is possible. Furthermore, clause 65 guarantees that no roads are constructed in Aboriginal land without the consent in writing of the Land Council. Clause 66 gives Aborigines control of entry were cee 15. into Aboriginal land and hence control of existing roads other than the public access roads I have mentioned." (Emphasis added) (The reference by the Minister to clauses 65 and 66 are references to provisions which became ss.68 and 70 of the Land Rights Act. These provisions deal with land which has become Aboriginal land after its grant and are therefore not presently relevant.) A consideration of the factual matrix in the light of the Minister's explanation suggests, in my view, that' the reference to "roads" in ss.1l and 12 was intended to describe the general roadway system and was not intended to pick up the network of stock routes, being something which stood outside that system. This was the opinion of Kearney J., sitting as Aboriginal Land Commissioner in the Murranji land claim (7 October 1986). A different view was taken subsequently by Maurice J. in the Chilla Well land claim. Maurice J. there held that stock routes fell within the exclusionary provisions of ss.ll and 12. The parties here have assumed, no doubt correctly, that his Honour will apply the same approach in the present claim. The Attorney-General, in contending that a stock route is a "road over which the public has a right of way" for present purposes,- says that a "driftway" is a category of road at common law. This is not strictly correct. It would be more accurate to say that a "driftway" is a type of highway at common law. The Sear oe ween ere ee tee ee we 16. 'Classes of highway In Suffolk County Council v. Mason ([1979] A.C. 705) Lord Diplock said "At common law highways are of three kinds according to the restriction of the public rights of passage over them. A full highway or cartway is one over which the public have a right of way (1) on foot, (2) riding on or accompanied by a beast of burden and (3) with vehicles and cattle. A bridleway is a highway 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, ie driving cattle, while a footpath is one over which the only public right of passage is on foot." The greater right, that of a carriageway, has always been held to include the lesser ways with the recognition that highways could be restricted to use as bridleways, or footpaths only. It was, however, possible for a carriageway to exist over which there was no right to drive cattle. The statutory definitions of bridleway and footpath follow the common law with the additional use of bridleways for bicyclists. The fact that a particular way cannot take vehicles over a certain width does not prevent it from being a carriageway.' The Attorney-General relied upon some observations by Parke, B. in Poole v. Huskinson (1843) 152 E.R. 1039. general position is explained by Susan Hamilton, op. cit. at p.2: made In an action for trespass, a question arose as to the effect of the purported dedication of a highway to certain inhabitants only. Parke B. said (at p.1041): "There may be a dedication to the public for a limited purpose, as for a footway, horse-way, or drift-way; but there cannot be a dedication to a limited part of the public. In that respect the direction of the learned Judge was quite correct; not so the alternative, that, as such a partial dedication was invalid in law, 1t would nevertheless operate, against the intention of the owner of the soil, in favour of the whole public. I think it would be merely void. In order to constitute a valid dedication to the public of a highway by the owner of the soil, it is 17. .clearly settled that there must be an intention to dedicate - there must be an animus dedicandi, of which the user by the public is evidence, and no more;..." It appears that Parke, B. was not concerned with the meaning of a "road". Instead, the question was approached on the footing that a highway, if anything, was involved. The Attorney-General also relies upon the decision of the Supreme Court of Appeals of Virginia in Terry v. McClung (1905) 52 S.E. 355. The statute in question created offences concerning highways. A route over a mountain was traversed by a number of bridleways or driftways, which, by tacit permission of the proprietors of the lands over which they passed, had been used by the people of the neighbourhood and others as passways, and occasionally for driving cattle and sheep across the mountain from one valley to the other. In the legislation the word "road" was to be "construed to mean any turnpike, state road or county road." Whittle J. said (at p.356): 'The word "road", in its generic sense, means all kinds of ways, whether they be carriageways, driftways, bridleways, or footways; but in the narrower statutory use of the term in this state it signifies a turnpike, state road, or county road, and contemplates a suitable way in width and grade for the convenient passage of vehicles.' It was held that no "road" within the meaning of the statute existed. In my opinion the case does not' promote the Attorney-General's argument. If anything, it illustrates that Wf rem tee ee > 18. the wide common-law concept of a "highway" may not' be appropriately applied to a "road" in a statutory context. The Attorney-General also relies upon some observations made by Mansfield C.J. in Ballard v. Dyson (1808) 127 E.R. 841 at p. 842: ""[I]n general a public highway is open to cattle, though it may be so unfrequented that no one has seen an instance of their going there; but the presumption would be for cattle as well as carriages, otherwise cattle could not be driven from one part of the kingdom to another." (See also Serff v. Acton Local Board [1886] 31 Ch.D. 679, per Pearson J. at p.683.) Again, the question is perceived in terms of a "highway" rather than a "road". For this reason, the case should not be seen as an authority on the meaning of what is a "road" for present purposes. The Attorney-General sought to find support for his contention that a travelling stock route is a "road" for our purposes by referring to the decision of the Land Appeal Court of New South Wales In re Lizzie Henderson (1904) 14 L.C.C. 83. This waS an appeal against the decision of the Local Land Board in respect of an application for appraisement of the capital value of certain Crown lands. By s.2 of the Appraisment Act 1902 (N.S.W.) a "holding" was defined to mean: soe 19. ",..eany number of portions of land held by one person bona fide in his own interest, in fee-simple, or as conditional purchases or conditional leases of the same or of different series, and being contiguous or separated only by roads or watercourses." (Emphasis added) The land sought to be appraised was separated from the balance of the holding upon which the applicant resided by a travelling stock reserve. The question was whether' the travelling stock reserve was a road within the meaning of that word within the definition of "holding". It was successfully argued for the applicant that a travelling stock reserve was "simply an enlarged road" (at p.84). The President said (at p.85): 'The next point we may dispose of is whether the portions are contiguous. The Court thinks that under the definition of "holding" the appellant is entitled to an appraisement of her non-residential conditional purchase holding, as we do, that a travelling stock reserve which separates the two portions should be considered a road within the interpretation clause. We have been referred during argument to cases decided - by this Court upon a different Act and for a different purpose, and we see no reason why we should hold that for the purpose of extending an area across a travelling stock reserve under subsection 3 of section 27 of the Crown Lands Act of 1889 a travelling stock reserve is a road, but not a road for the purposes of the Appraisement Act of 1902.' In my opinion, this reasoning may be distinguished here. In Lizzie Henderson, the question was one of contiguity, or virtual contiguity. In that special statutory context, it may be accepted that a stock route would be treated as equivalent to a road with the result that interposition of the stock route did not prevent the holdings from being treated as contiguous. Here, ~— aK 20. the question is quite different. We have two distinct things. A general road system on the one hand and a series of stock routes on the other. It is necessary to decide whether both are picked up by ss.1l1 and 12. The Attorney-General also sought support from some of the observations made in the Campbelltown Corporation Case. There, a strip of land was shown as a road on a plan of subdivision. On an appeal to a District Court Judge it was contended that there was no "public road" within the meaning of s.224(3) of the Local Government Act 1919 (N.S.W.). Kitto J. said (at p.410): "...it is a mistake to construe [s.224(3)] as applying only in respect of a road in the sense of a formed way, or even of a tract of land in a physical condition admitting of use for purposes of traffic." His Honour thought that a "paper road" was enough to satisfy one of the conditions of s.224(3) (at p.411). Again, the point arises in a special context. But, in any event, it may be accepted that a "paper road" could fall within the description of a "road" in ss.ll and 12 of the Land Rights Act (cf. Mundi Mundi, supra, per Higgins J. at p.377). What we have to determine is whether a stock route falls within that description. From the point of view of statutory construction of the word "road", the significant thing is that Kitto J. was concerned to find contextual indications that the word should not be confined to a road in the popular sense of a formed way or one admitting of use for purposes of traffic. re arp eee oe a7 mr vy — cae wee owe wero. 21. Windeyer J. (at p.420) made observations similar to those made by Kitto J.: "...when the Act speaks af a public road as a road the public are entitled to use, it means land over which a public right of way exists - that is to say, a highway in the common law sense. The latter part of the definition I think merely indicates that the dedication that creates a highway may have been effected by any of the several methods' there mentioned. It is the public right to use the land as a way, rather than its physical nature, that makes land a highway (Harrison v. Duke of Rutland [1893] 1 Q.B. 142). 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 of the proffered dedication." Again, his Honour's remarks are not directed to the question we have to consider. In Simpson v. The Council of the North West County District (unreported, 15 September 1978) (a case drawn to our attention by Burchett J. in the course of argument), Waddell J. was concerned with the construction of s.235(B) of the Crown Lands Consolidation Act 1913 as follows: "No title to any land of the Crown which has been either before or after the commencement of the Crown Lands (Amendment) Act 1931 - (b) left between Crown Grants as a road or driftway..." His Honour said (at p.49): 22. 'K driftway is a way along which there is a right to drive cattle, that is heasts of pasture, either wild or domestic, including horses and_ sheep. See definitions of "driftway" and "cattle", Jowett's Dictionary of English Law, 2nd Edn. Vol. 1 pp.661, 295. In Cannon -v~- Villars, (1877) 7 Ch D 415 at 421 Jessel, MR referred to a driftway as a right-of-way restricted to foot-passengers and horsemen or cattle. See also R -v- Somers, (1906) 1 KB 326; Ballard -v- Dison, (1809) 1 Taunt. 279; 127 ER 841. In the Shorter Oxford English Dictionary "driftway" is defined as "a lane or road along which cattle are driven", Vol. 1 p.563. On the strength of this definition 1t is submitted for the plaintiff that the Travelling Stock Route could not be a driftway because the word would not extend to cover land 400 yards wide. However, if the word is applied to Australian circumstances I do not see any reason why it should not include a travelling stock route of such a width. In my opinion Travelling Stock Route 28605 is a driftway for the purposes of s.235B because it is a way along which there is a public right of driving stock or, to use the English term, cattle. As the land within the Mining Reserve has not been provided for this purpose it cannot be considered to be such a driftway.' It may be accepted that, in some contexts, a driftway can be regarded as a highway and also as a road. But this does not determine the present question of statutory interpretation. Given the clear distinction, both physically and in terms of the local legislation, between the general road system in the Territory on the one hand and its stock routes on the other, when the Parliament referred to a "road" in ss.1l and 12, it seems likely that what was meant to be described was something which was part of the general road system rather than a stock route. This conclusion is reinforced by recent amendments to the Land Rights Act (Act No. 40, 1987 - assented to 5 June 1987). Amendments were there made to ss.1l and 50, referring, in terms, to a "stock route" and a "stock reserve" as well as to a "road". iad ane "oo 23. This post-enacting legislative history may properly be taken into account (see Pearce, op.cit. at p.68; Bennion, op.cit. at pp.553-4). As has been said, the distinction between a road and a travelling stock reserve was recognised in s.103 of the Crown Lands Ordinance. It was also recognised by Isaacs J. in Mundi Mundi, supra. In giving the history of the South Australian Pastoral legislation, his Honour said (at p.353): "The relevant history of the pastoral law of the State establishes that the right of owners of travelling stock to pass - a right more or less regulated, but basically a right - over Crown lands, including lands let by the Crown for pasturage, is part of the constant and traditional policy and law of South Australia....As settlement advanced the pastoral grounds have gradually retreated until they have extended to several hundred miles inland, indeed to the very northern limits of the State, where it joins Queensland and the Northern Territory. In other words, it has been forced to occupy lands which were far removed from populous localities where main roads were constructed and where frequent traffic of all kinds formed for 1tself convenient ways that were well recognised and followed, though not always officially adopted." (see also at pp.355, 358). In my opinion, the stock route was not a "road" for the purposes of ss.1l and 12 of the Land Rights Act. It will be remembered that the question referred by the Chief Judge is whether the stock route is a statutory road by virtue of the 1933 Proclamation alone. The reason for framing as tees oe mess Tee reer ose 24. ' _ the question in this way is that because the claimants contend that the Proclamation 1s invalid for reasons which it is here unnecessary to state, the Attorney-General also seeks to argue that, apart altogether from the operation of the Proclamation, a "road" was dedicated, accepted and used by members of the public. For present purposes however, it 1s common ground that a highway may be dedicated by statute without the need for any furthesx acceptance or user. This is plainly correct (see Miller v. McKeon (1906) 3 C.L.R. 50 at p.58, 59: Owen v. O'Connor (1963) 63 S.R. (NSW) 1051 at p.1053, per Sugerman J.). But this cannot affect my conclusion with respect to the interpretation of ss.11l and 12 of the Land Rights Act. I would answer the first question referred by the Chief Judge in the negative. The second question referred 1s : "Tf yes, does the Aboriginal Land Commissioner have jurisdiction under paragraph (a) of subsection 50(1) or under subsection 50(3) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) in respect of any land comprised and described within the said stock route?" This question does not arise. I would propose that the prosecutor pay the costs of these proceedings. 25. I certafy that the preceding twenty four (24) pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Beaumont a R ERANSSON Associate Dated: 26 November 1987 ¥ : syoery ere ay vo pes. coer IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G.304 of 1986 em GENERAL DIVISION SPECIAL CASE PURSUANT TO SUB-S. 25(6) OF THE FEDERAL COURT OF AUSTRALIA ACT 1976 IN THE MATTER of an Application for a Writ of Prohibition against the HONOURABLE MICHAEL DAVID ANDREW MAURICE, ABORIGINAL LAND COMMISSIONER First Respondent lz a Les] BILLY BOY FOSTER JAMPIJINPA & ORS. Second Respondent \2 za =] IN THE MATTER of the WARUMUNGU LAND CLAIM EX PARTE, the ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA Prosecutor CORAM: Sweeney, Beaumont and Burchett JJ. DATE: 26 November 1987 REASONS FOR JUDGMENT BURCHETT J. I agree with the orders proposed by Beaumont J., and with his reasons. I certify that this page is a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Burchett. boa Geli Associate Dated: 26 November, 1987. 'A "eee a, eer we Counsel for the lst Respondent: Solicitors for the lst Respondent: Counsel for the 2nd Respondent: Solicitors for the 2nd Respondent: Counsel for the Prosecutor: Solicitors for the Prosecutor: Dates of hearing: Ms R. Henderson Australian Government Solicitor Mr. S. Charles, QC with Mr. R. Howie Dawson Waldron Mr. D.M.J. Bennett, QC with Mr. J.D. Barrett Freehill, Hollingdale & Page 13, 14, 15 October 1987.