¢ . JBGMENT. No. 643/81. 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 is a "road" for the purposes of the Aboriginal Land Rights (Northern Territory) Act 1976 ss.11 and 12. Prerogative Writs - prohibition - whether declaratory relief appropriate. BANIBI PTY. LIMITED (Appellant) THE HONOURABLE MICHAEL DAVID ANDREW MAURICE, ABORIGINAL LAND COMMISSIONER (First Respondent), THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA (Second Respondent) and THE NORTHERN LAND COUNCIL (Third Respondent) No. G574 of 1986 Sweeney, Beaumont and Burchett JJ. Sydney 26 November 1987 — Se errs purr sper tore ee cp eens a IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G574 of 1986 ) GENERAL DIVISION ) APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: BANIBI PTY. LIMITED Appellant AND: THE HONOURABLE MICHAEL DAVID ANDREW MAURICE, ABORIGINAL LAND COMMISSIONER First Respondent AND: THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA Second Respondent AND: THE NORTHERN LAND COUNCIL Third Respondent MINUTE OF ORDER COURT: SWEENEY, BEAUMONT AND BURCHETT JJ. DATE OF ORDER: 26 NOVEMBER 1987 WHERE MADE: SYDNEY THE COURT ORDERS: Appeal dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. a we freee oe IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION APPEAL FROM A SINGLE JUDGE OF AND AND AND BANIBI PTY. LIMITED No. G 574 of 1986 eee ee THE FEDERAL COURT OF AUSTRALIA Appellant THE HONOURABLE MICHAEL DAVID ANDREW MAURICE, ABORIGINAL LAND COMMISSIONER First Respondent THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA THE NORTHERN LAND COUNCIL Second Respondent Third Respondent THE COURT: PLACE DATE Sweeney, Beaumont and Burchett JJ. Sydney 26 November 1987 meee: tose atte ya teep t een A ee een ee ee are REASONS FOR JUDGMENT Sweeney, Jd. This case has given rise to the same question of law which arose in the two cases in which judgment has been delivered earlier today (VG278 of 1986 and G304 of 1986), namely whether a stock route is, within the meaning of s.11 of the Aboriginal Land Rights (Northern Territory) Act 1976 ("the Act") "any land on which there is a road over which the public has a right of way". It came at first instance before Wilcox J. in the form of the return of an order nisi for prohibition against the Aboriginal Lands Commissioner. His Honour declined to make the order absolute, without finding it necessary to decide the question of law which has been argued before us, to which, in my opinion, for the reasons given in the earlier cases, the answer should be "No". There is no reason why one should come to any other conclusion in relation to a stock reserve. This answer being fatal to the appellant's case, I would dismiss the appeal with costs. I certify that this and the preceding page are a true copy of the Reasons for Judgment herein of the Honourable Mr. Justice Sweeney Dated: 26 November 1987 Associate pee ON teenage + a IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G574 of 1986 ) GENERAL DIVISION ) APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: BANIBI PTY. LIMITED Appellant AND: THE HONOURABLE MICHAEL DAVID ANDREW MAURICE, ABORIGINAL LAND COMMISSIONER First Respondent AND: THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA Second Respondent AND: THE NORTHERN LAND COUNCIL Third Respondent CORAM: Sweeney, Beaumont and Burchett JJ. DATED: 26 November 1987 REASONS FOR JUDGMENT ~ BEAUMONT J. This matter was argued in association with the related matters Nos. VG 278 of 1986 and G304 of 1986 which raise the same substantive point of law, viz. whether a stock route or a stock reserve is a "road" for the purposes of ss.1l1 and 12 of the Aboriginal Land Rights (Northern Territory) Act 1976 ("the Land Rights Act"). However, the present proceedings are different in form from the other matters and some reference should be made to the history of this litigation. A tet. Fe an ees fer ne ae oe meee ee pee , 2. The proceedings were commenced by application filed on 14 November 1986 seeking prohibition and "an order declaring the rights of the parties". On 14 November 1986, the Chief Judge granted an order nisi for prohibition and granted a stay of proceedings in the land claim. The application to make absolute the order nisi was heard by Wilcox J. (see Re Mataranka Area Land Claim; Rv. Maurice; Ex parte Banibi Pty. Ltd. (1986-7) 70 A.L.R. 53). Without deciding the substantive question whether the stock route or reserve was a "road" for the purposes of the Land Rights Act, his Honour dismissed the application on two grounds. In the first place, the primary Judge held that even if the effect of the declaration of a stock route was to create a "road" for the purposes of ss.ll and 12 of the Land Rights Act, that land remained "unalienated Crown land" within the meaning of s.50(1)(a) of the Land Rights Act. It followed, his Honour held, that the Aboriginal Land Commissioner had jurisdiction to embark upon and complete his inquiry and to make his report, including, if appropriate, recommendations for a grant of land (at p.58). Secondly, Wilcox J. said that he would have dismissed the application on the discretionary ground that it was premature (p.59). His Honour discharged the order nisi and dissolved the stay of proceedings. Banibi Pty. Limited now appeals from these orders. For the reasons given in the other matters, I am of the view that a stock route or a stock reserve is not a "road" for ae cee a ee 3. present purposes. It must follow that any application for prohibition must fail. I would only add that it would have been open to the primary Judge to deal with the matter by the grant of appropriate declaratory relief (see Sankey v. Whitlam (1978) 142 C.L.R. 1 per Gibbs A.C.J. at p.22). If the prosecutor had been right and the stock route were a "road" then a declaration to that effect could have been made and liberty to apply reserved. Equally, on the view I have taken, a declaration could have been made that the stock route was not a "road". Either way, the declaratory procedure would have avoided the technical complications which can arise when prohibition is sought (see, for example, The Queen v. The Judges of the Federal Court of Australia _ and McDowell Pacific Ltd.; Ex parte Pilkington A.C.I. (Operations) Pty. Ltd. (1978) 142 C.L.R. 113 at pp.126-7). I would dismiss the appeal with costs. I certify that this and the preceding Two (2) pages are a true copy of the Reasons for Judgment herein of Mr. Justice Ss — LZ . Associate A.R.FRANSSON Dated: 26 November 1987 — meooo Les i ooo af wan t en rr petri te IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION ) ) ) No. G.574 of 1986 ) ) APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: AND: BANIBI PTY. LIMITED Appellant THE HONOURABLE MICHAEL DAVID ANDREW MAURICE, ABORIGINAL LAND COMMISSIONER First Respondent THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA Second Respondent THE NORTHERN LAND COUNCIL Third Respondent CORAM: Sweeney, Beaumont and Burchett JJ. DATE: 26 November 1987 REASONS FOR JUDGMENT BURCHETT J. I agree with the orders proposed by Beaumont J., with his reasons. I certify that this page is a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Burchett. G2 Ghz, Associate b Dated: 26 No er, 1987. and ete en degen eo Counsel for the Appellant: Solicitors for the Appellant: Solicitors for the lst Respondent: Counsel for the 2nd Respondent: Solicitors for the 2nd Respondent: Counsel for the 3rd Respondent: Solicitors for the 3rd Respondent: Date of hearing: Sir Maurice Byers, QC with Mrs. A.C. Bennett McGirr James Hall & Associates Australian Government Solicitor Mr. J. Barrett Freehill , Page Hollaingdale & Mr. S. Charles, QC with Mr. R. Howie Piggott Stinson 26/10/87 wes rn sr eee wea ee en er eget ee Ja ware et sa eae ee es ea eee tee teen t ron rae