CATCHWORDS ABORIGINAL LAND RIGHTS ~- Decision to grant land - Land said to include a road over which the public has a right of way - Elements necessary to constitute opening by Crown of public road - Whether dedication suffices, without public user - Whether marking of line on map constituted dedication by Crown - Necessity for consent to dedication by lessee. ADMINISTRATIVE LAW - Challenge to decision on grounds of error of law and improper exercise of power - Admissibility in evidence of material not before the decision-maker at the time of decision. Aboriginal Land Rights (Northern Territory) Act 1976 s.1l. Administrative Dectsichs (Judicial Reviews Act 1977 s.5. NSW G.235 of 1988 THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA v HONOURABLE GERARD LESLIE HAND, MINISTER FOR ABORIGINAL AFFAIRS & OR Wilcox J Sydney 3 August 1988 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION BETWEEN: AND: AND: CORAM: WILCOX J PLACE: ** SYDNEY DATE: 3 AUGUST 1988 No. NSW G.235 of 1988 ~~ www THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA Applicant HONOURABLE GERARD LESLIE HAND, MINISTER FOR ABORIGINAL AFFAIRS First Respondent JIMITJA JUNGARRAYI, TOBY JUN! RAYI and PETER JAPALJARRI Second Respondents IN THE MATTER of the JILA (CHILLA WELL) WARLPIRI LAND CLAIM MINUTES OF ORDER THE COURT ORDERS THAT: 1. The Application be dismissed. 2. The applicant pay to each of the respondents their costs of the proceeding. 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. NSW G.235 of 1988 GENERAL DIVISION BETWEEN: THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA Applicant AND: HONOURABLE GERARD LESLIE HAND, MINISTER FOR ABORIGINAL AFFAIRS First Respondent JIMITJA JUNGARRAYI, TOBY JUNGARRAYIL and PETER JAPALJARRI Second Respondents AND: IN THE MATTER of the JI (CHILLA WELL) WARLPIRI LAND CLAIM CORAM: _ WILCOX J PLACE: SYDNEY DATE: 3 AUGUST 1988 REASONS FOR JUDGMENT This is a challenge by the Attorney-General of the Northern Territory of Australia to the validity of a decision made by the first respondent, the Minister for Aboriginal Affairs, in connection with a claim made under the Aboriginal Land Rights (Northern Territory) Act 1976. The case concerns the Jila (Chilla Well) Warlpiri Land Claim. At their own request, Jimitja Jungarrayi, Toby Jungarrayi and Peter Japaljarri have been joined as second respondents to the proceeding in order to enable them to represent the traditional owners of the land. The facts On 20 November 1978 the Central Land Council lodged with the then Aboriginal Land Commissioner an application for a land grant over an area of alienated Crown land known as "Chilla Well Pastoral Lease no.764". The lessee of that land was then, and has since remained, the Aboriginal Development Commission; an entity established under the Aboriginal Development Commission Act 1980. The area claimed constituted most of Portion 1337. It was situate in the Tanami district north west of Alice Springs. On 14 November 1983 the application was amended so as to include in the land claimed an area of unalienated Crown land which lay within Portion 1337 but which had been excluded from pastoral lease 764 because it was part of a stock route and a stock reserve. The hearing of the land claim commenced on 16 June 1986 before the then Aboriginal Land Commissioner, Maurice J. Both the claimant and the Northern Territory government were represented at that hearing. Portion 1337 is traversed diagonally, near its north eastern corner, by a road known as the Tanami road. It is common ground between the present parties that the Tanami road is "a road over which the public has a right of way", within the meaning of s.11(3) of the Land Rights Act. Consequently, the site of that road may not be included in a land grant under the Act. In his report, delivered to the then Minister for Aboriginal Affairs and to the Administrator of the Northern Territory on 17 July 1987, Maurice J noted a concession by the applicant "that a reserve 100 metres wide following the present alignment of the road should be excised from the claim area for the road and associated works". There 1S a second "road" within the claim area. This road is unsealed. Indeed it is no more than a graded bush track. The road leads from the Tanami road to Mt Theo. Its junction with the Tanami road lies a little to the south of the stock reserve. The road travels in an approximate east-north-east direction within Portion 1337. On the way it crosses the stock route. After leaving Portion 1337, the road passes through land within Portion 1740. Since 24 September 1980, that land has been vested in fee simple in the Central Desert Aboriginal Trust pursuant to a grant made under the Land Rights Act. A question arose before the Aboriginal Lands Commissioner as to whether the Mt Theo road 1s a road over which the public has a right of way. In his report Maurice J said that, as the section of the road between the eastern boundary of Portion 1337 and Mt Theo traversed land vested in a Land Trust under the provisions of the Land Rights Act, "(in) the absence of consent to public use by the Minister under s.68(3), there can be no doubt that this section of the road is not public". The Commissioner went on: "As for the section between the Tanami Road and the eastern boundary of the Pastoral Lease, there is no evidence of express dedication by the A.D.C. and not really the slightest evidence of implied dedication. The terms of the Pastoral Lease do not appear to permit the Northern Territory to create a public right of way over it merely by publishing plans and maps as it says it has done." On 30 January 1988 the Minister wrote a letter to the then Chief Minister of the Northern Territory relating to the claim: "I am writing to inform you that I have made a decision in respect of the land recommended for grant by the Aboriginal Land Commissioner in his report of 17 July 1987 on the Jila (Chilla Well) Warlpiri land claim. I have decided that the land in the Chilla Well pastoral lease section of the claim should be granted to an Aboriginal Land Trust as recommended by the Commissioner in his report. I have deferred a decision in respect of the portion of the North West Stock Route and the Chilla Well Stock Reserve within the claim pending the outcome of litigation in the Courts in respect of the status of land in stock routes. In making my decision I have had regard to matters of detriment referred to by the Commissioner in his report. That detriment is not sufficient to persuade me that the land in the pastoral lease section of the claim should not be granted. However I note that the Northern Territory may require access to materials and water to maintain the Tanami Road, in situations not covered by s.14 of the Aboriginal Land Rights (Northern Territory) Act 1976. I do not see that matter being a problem and I am sure that arrangements can be made to provide access to the land for road maintenance where necessary. I will be inserting a notice in the Northern Territory press within the next few days announcing details of my decision." The litigation referred to by the Minister, in respect of the status of land in stock routes, was apparently Re Warumungu Land Claim; Ex parte Attorney-General (NT) (1987) 77 ALR 27; an application for special leave to appeal to the High Court of Australia from the decision of a Full Court of this Court then being unresolved. Although, in the second paragraph of his letter, the Minister referred to a decision "that the land ... should be granted ...", it is accepted by the parties that the relevant decision of the Minister was that he was satisfied of one of the alternatives set out in para.(b) of s.11(1) of the Land Rights Act. That sub-section deals with the establishment of one or more Land Trusts to hold land intended to be granted under the Act. The pre-requisites of the Minister's duty to establish one or more Land Trusts are, firstly, receipt of a report from an Aboriginal Land Commissioner containing a recommendation that an area of Crown land should be granted to a Land Trust for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of that area and, secondly, that the land, or part of the land, should be granted to one or more Land Trusts to be so held. The substance of the matter, therefore, was that the Minister had decided to proceed with the action necessary to enable a grant by the Governor General under s.12 of the Act of the whole of the land initially claimed in 1978; leaving for later consideration the additional land -- the section of the stock route and the stock reserve -- claimed by virtue of the 1983 amendment. The present proceeding was commenced on 19 February 1988 when the applicant filed in the Court an Application seeking review, under the Administrative Decisions (Judicial Review) Act 1977, of the decision of the Minister communicated by his letter of 30 January 1988. Three grounds were specified: that the decision involved an error of law, that the decision was an improper exercise of power and that the decision involved a breach of the rules of natural justice. The applicant sought an order setting aside the decision and remitting the matter to the Minister for reconsideration according to law. He also sought an injunction restraining the Minister from taking any action to give effect to his decision. At the hearing counsel for the applicant announced that their client did not press the claim of denial of natural justice. Furthermore, they explained that the first two grounds stated in the Application were intended to embrace only a single point: that the Minister's decision was invalid in law because it involved a decision in favour of granting land which was not capable of being granted under the Act viz that portion of the claimed area over which lay the road to Mt Theo. This land, says the applicant, is "land on which there is a road over which the public has a right of way". As they point out, s.11(3) provides that the reference made in sub-s.(1) of s.11 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". The effect of s.11(3) is that such land is not available for grant under the Act. The admissibility of evidence of dedication and acceptance In support of their claim that the public has a right of way over the road from the Tanami road to Mt Theo, the applicant sought to rely upon a number of affidavits. Those affidavits deal with three matters. First, they disclose the circumstances under which the Mt Theo road was constructed. It appears that, some time before 1982, an Aboriginal outstation was established at Mt Theo. The Northern Territory Department of Community Development favoured the drilling of a bore at Mt Theo to supply water to that outstation. It was necessary for that purpose to take a drilling rig to Mt Theo. Consequently, the Department raised the matter with the Commonwealth Department of Aboriginal Affairs. On 8 February 1982 Mr RA Styles, Area Officer (Western) of that Department -- who was apparently based in Alice Springs -- wrote a letter to the Officer-in-Charge of the Community Government Division of the Department of Community Development at Alice Springs in which he confirmed "that the following roads would be of great benefit to people resident or proposing to reside at outstations in the vicinity of Yuendunu". There followed a list of six roads including that from the Tanami road to Mt Theo. In November 1982 the Northern Territory Department of Transport and Works formed the existing road by grading the route. The cost of that work was $3,942.40. Since that date the road has been regraded upon one occasion; by the Yuendunu Council but at the cost ($1,560) of the Department of Community Development. The second matter disclosed by the affidavits is that, at some stage between 23 November 1982 and 15 April 1986, an official map was drawn by the Survey and Mapping Division of the Northern Territory Department of Lands. This plan, which was a public record of the Northern Territory government and was available for inspection by members of the public, was entitled "Tjila (Chilla Well) Warlpiri Land Claim". It was numbered CP4569. The plan showed Portion 1337, its relationship to the adjoining portions and the relevant rgad. The Mt Theo road was shown as a single unbroken line marked "Road. Approx 45 km to Mt Theo". The Map was drawn to a scale of 1:250,000. It did not show the width of the road, or of any road reserve. There is no evidence whether the line of the road, as 1t was constructed, corresponds with the line of the road as shown on the map. Finally, there are several affidavits from people who have driven over the Mt Theo road since its construction in 1982. Four of the deponents are persons concerned with the water supply at Mt Theo, public servants or contractors. One deponent, Mr Max Heggen, is a field officer of the Office of Local Government within the Northern Territory Department of Labour and Administrative Services. His duties include the monitoring of Aboriginal communities and outstations in the Alice Springs region. For that purpose he regularly visits Mt Theo. The other deponent, Mr D F Gibson, a biologist under contract to the Conservation Commission of the Northern Territory, has used the road on two occasions to obtain access to, and egress from, the Tanami Wildlife Reserve. There is some evidence to indicate that the Central Land Council has consented to Mr Gibson's use of the road. Otherwise the evidence is silent upon the question whether any of the deponents have obtained permission before using the road. The respondents objected to the reading of the affidavits to which I have just referred. They submitted that the question before the Court, upon an application under the Administrative Decisions (Judicial Review) Act to review an administrative decision, must be the validity in point of law of the subject decision and that, in all cases, that question had to be determined solely by reference to the material before the decision-maker. They cited the following passage 10. in the reasons for judgment of Davies J in Ruangrong v Minister for Immigration and Ethnic Affairs (not reported, 29 March 1988) at p.7: "The material considerations which a decision-maker must take into account are those which were before him at the time he made his decision or which, if not actually before him, were or should have been in the hands of his officers and ought to have been brought to his attention. In judicial review proceedings, it is not permissible to adduce other material for, ex hypothesi, that was not before and ought not to have been before the decision-maker when he made his decision." The only relevant material before the Minister, the respondents claimed, was the report of the Aboriginal Land Commissioner. That report not only provided no factual material from which the Minister should have realized that the Mt Theo road was a road which the public was entitled to use as of right; it said the opposite. The present proceeding, the respondents submitted, was really an attack upon the Commissioner's factual finding. As such, counsel argued, it ran into formidable diffficulties: the Commissioner was not a respondent to the application, the application was made out of time and, in any event, the applicant sought to resort to material which was not before the Commissioner. It was obvious when the objection was raised that it was strongly arguable that the affidavits were inadmissible. However, the objection went to the heart of the case. As counsel did not propose to cross-examine the deponents to the affidavits, I took the view that the convenient course was to read the affidavits, subject to the objection. This course 11. being taken, certain additional evidence was tendered on behalf of the respondents. That evidence shows that, according to a search made in the records of the Aboriginal Development Commission, no consent was ever given by that Commission, as lessee of Pastoral Lease 764, to the construction of the portion of the Mt Theo road which lies within the leased area. Nor, according to a search of the records of the Central Land Council, was consent given to the construction of that part of the road which is within Portion 1740. Furthermore, Mr E J Tickner, co-ordinator of Yuendunu Outstations Aboriginal Corporation, says that in the course of his duties he has driven to Mt Theo along the subject road upon approximately 24 occasions but he has never seen it used by any persons except the local Aboriginal people. Having had the opportunity of further reflection upon the point, I think that the objection taken by the respondents to the admission of the affidavits tendered on behalf of the applicant is well founded. However, the respondents go too far in saying that reference may never be made, in an application under the Administrative Decisions (Judicial Review) Act, to material which was not before the decision-maker. It is true that this Act provides for the making of an application under the Act by a "person who is aggrieved by a decision to which this Act applies", that such an application must be "for an order of review in respect of the decision" upon one or more of the grounds specified in the section, and that similar limitations are made by s.6 in connection with the review of conduct relating to the making 12. of a decision. I agree that the focus in each case 1s upon the validity in law of a particular decision or of conduct in connection with the making of a particular decision. But it is not possible to postulate a general rule that, in reviewing under the Act the validity of a decision or of conduct, the Court is limited to an examination of the material which was, or which ought to have been, before the decision-maker. I think that the ambit of the relevant evidence must depend upon the ground upon which the decision or conduct is challenged. For example, as Davies J has pointed out, ina case where the complaint is that the decision-maker has failed to take into account a material consideration 1t must be shown that this consideration was before the decision-maker; either in actual fact or notionally, in the sense that it was, or should have been, known to the officers of the decision-maker. In such a case it is difficult to see the relevance of material not before the decision-maker, actually or notionally. Where it is suggested that the impropriety lay in the decision-maker taking into account an extraneous consideration, the focus of the evidence will be the material before the decision-maker and the nature of, and reasons for, his or her decision. In the case of unreasonableness, attention will primarily focus upon the material before the decision-maker, but not necessarily to the exclusion of other Material: see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at pp.169-170. A complaint of denial of natural justice may require reference to the material before the decision-maker, as, for example, in Kioa v West 13. (1985) 159 CLR 550; but in many cases, for example, where the decision-maker failed to accord a hearing, the nature of the material before the decision-maker, as distinct from the nature of the decision itself, may be quite immaterial. As mentioned, the two grounds of review advanced in the present case are error of law and improper exercise of power. Whether or not there is an error of law ina particular case must depend upon the reasoning of the decision-maker, read against the material then before that decision-maker. It is difficult to see that other material could ever be relevant in determining whether the decision-maker had erred in law. This was pointed out ina different context -- appeal to the Court from a decision of the Administrative Appeals Tribunal -- by Brennan J in Waterford v Commonwealth of Australia (1987) 71 ALR 673 at p.689. His Honour said: "The error of law which an appellant must rely on to succeed must arise on the facts as the AAT has found them to be or it must vitiate the findings made or it must have led the AAT to omit to make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact. Therefore an appellant cannot supplement the record by adducing fresh evidence merely in order to demonstrate an error of fact." The principle adopted by Brennan J may be illustrated by the present case. The argument for the applicant is that the Minister erred in law in regarding the site of the Mt Theo road as being "land" within the meaning of s.11 of the Land Rights Act, and therefore available for grant. That question depended upon whether it was a road over which the public had 14. a right of way. But the only factual material before the Minister on that point was the Commissioner's finding as to the absence of evidence of dedication. There could be no error in law in concluding, upon the basis of that finding, that the Mt Theo road was not a road which the members of the public were entitled to use. To attack the Minister's decision upon that matter by reference to other evidentiary material is not to say that the Minister erred in law but rather to claim that different evidence would have impelled a different conclusion of law. There are similar difficulties about the second ground relied upon by the applicant. The ground taken, improper exercise of power, is an umbrella ground inserted in s.5(1) to cover all of the diverse grounds specified in s.5(2) of the Administrative Decisions (Judicial Review) Act. I have already commented upon the relevance of evidence not before the decision-maker to the grounds mentioned in paras.(a), (b) and (g) of s.5(2): taking into account an irrelevant consideration, failing to take into account a relevant consideration and unreasonableness. It is difficult to see that such evidence would be relevant to para.(h); uncertainty. As to the other grounds -- improper purpose (para.(c)), bad faith (para.(d)), discretion of another person (para.(e)), exercise of power in accordance with a rule or policy (para(f)), and other abuse of power (para(j)) -- there may well be relevant evidence in the form of material which was not before the decision-maker. But none of these paragraphs is relevant to the present case. 15. It seems to me that inappropriate grounds were specified in the Application. The case which the applacant really seeks to make is that, 1rrespective of the evidence before Maurice J and of his findings, the Minister was not authorized to reach the state of satisfaction referred to in s.11(1)(b) of the Land Rights Act in relation to the site of the Mt Theo road; the reason being that, upon the true facts, that site was not "land" within the meaning of s.11(1). The appropriate ground under which to have raised that contention would have been para.(d) of s.5(1) of the Administrative Decisions (Judicial Review) Act; namely, "that the decision was not authorized by the enactment in pursuance of which it was purported to be made". Had that ground been taken it would, in my opinion, have been open to the applicant to adduce evidence to show that, regardless of the content of the material actually before the Minister, the relevant decision was one which he could not lawfully make. The situation would be the same as that which would have arisen had the applicant adopted the alternative procedure, open to him, of seeking an injunction against the Minister pursuant to s.39B of the Judiciary Act 1903. In either case the validity of the Minister's decision would be subjected to judicial review, although by reference to materials not seen by the Minister and arising under circumstances where, even if the application succeeded, there could be no possible criticism of the Minister. 16. On one view, the Court should dispose of this application by noting that the applicant has not elected to rely upon either s.5(1)(d) of the Administrative Decisions (Judicial Review) Act or s.39B of the Judiciary Act, by holding that the chosen grounds are inappropriate and, in consequence, by dismissing the claim. But the applicant does seek to raise for determination a serious question pertaining to the validity of the Minister's decision. If the present proceeding were dismissed without any determination of that question, it would be open to the applicant to re-raise the matter in a fresh application either under s.5(1)(d) -- with an extension of time ~- or under s.39B, without the necessiry for any extension of time. If that course were taken the parties would incur additional delay and expense. Under these circumstances, and as there is no question of prejudice and the point of substance has been fully argued, the appropriate course is to determine the point; doing so upon the basis of whatever evidence would properly have been admissible if an amendment had been made to the Application to include reliance upon s.5(1)(d). That evidence would include the statements in the affidayits to which I have already referred. The elements necessary for opening a public road The submissions of all parties treat the words "road over which the public has a right of way" as being synonomous with "public road". I think that this is correct. Moreover, the entitlement of members of the public to use a road is 17. something quite different from their ability to do so; for example, because of the location of the road or its state of construction. All this was made clear by Windeyer J in Permanent Trustee Company of New South Wales Limited v Campbelltown Municipal Council (1960) 105 CLR 401, ina passage at p.420 in which his Honour also deals with the creation of a public road: ",.. when the Act speaks of 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. ... It is the public right to use the land as a way, vather 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 of the proferred dedication. With some exceptions, any landowner absolutely entitled in fee simple is, at common law, competent to dedicate land as a road." Part Iv of the Control of Roads Act (NT) makes provision for the opening of roads within the Northern Territory by the Minister. It is not contended on behalf of the applicant that the Mt Theo road was opened in accordance with this*Part. But counsel for the applicant contend that the existence of this legislation does not preclude the opening of a public road in accordance with common law rules. The legislation does not expressly preclude such a course and it is not argued on behalf of any of the respondents that it does so by necessary implication. I think that, in the absence of their exclusion by the Act, the common law methods of opening public roads remain available. 18. Counsel for the applicant argue that the section of the Mt Theo road which runs from the Tanami road to the boundary of Portion 1337 has been opened as a public road at common law. They put three alternative bases for this proposition: dedication simpliciter, dedication allied with public user and dedication with public expenditure. Notwithstanding the reference by Windeyer J in the Permanent Trustee case to the necessity for public acceptance, counsel for the applicant argue that, in a case where land is owned by the Crown, dedication alone suffices to create a public road. Reference is made to two 19th century decisions, Rapley v Martin (1865) 4 SCR (NSW) 173 and Scott v Shires of Eltham and Heidelberg (1876) 2 VLR (L) 98. Rapley and Scott were both actions for trespass, the question in each case being whether the land upon which the alleged trespasses had occurred were public roads. In Rapley, the subject land had been marked as a road, both upon the Crown advertisement for sale of the area and upon the Crown grant itself. There was, apparently, some evidence of user, but the Full Court of the Supreme Court of New South Wales did not seem to regard this as essential. At pp.180-181 the Court said: "There was here, we conceive, both before and at the time of the sale and grant to Hughes, a dedication of the road in question to the public, as a highway -- effectuated by the terms of the grant, at all events as against Hughes and all claiming under him. There may be some uncertainty, as to the portion of this road described as commencing 'about' fourteen chains from the river; but there is none respecting the part now in controversy. The 19. actual user of the right, however, along a certain line, especially if uninterrupted and for a considerable period, might perhaps be sufficient to indicate that as the intended roadway. ... But, be this as it may, nothing can (we think) be clearer than that the Crown meant to confer ~~ and did all in its power to confer -- a general right of way to the public, along his entire eastern boundary, by the grant to Hughes. The granting of a right of way to Martin, or to any other individual or individuals specified, over then ungranted Crown land, would have been inconsistent with such an intention. So would the retention (call it by what name you will) of such a right, in or for the benefit of the Crown itself. There was here either the dedication, to the public at large, of the described road as and for a highway, or there was nothing." In the case of Scott the relevant strip of land had not been identified as a road upon the Crown grant; but there was evidence that the line of the road was marked on the land by a peg and by blazed trees. These markings corresponded to the position of a road shown on a government map. Stawell CJ, speaking for the Full Court of the Supreme Court of Victoria at p.100, approved of the following passage in the charge which, as trial judge, he had given to the jury: "The original plan or map is one of the public records of the colony, and that agrees with the peg and also with the line of marked trees. The instant the Government put that road on that map, that road was dedicated to the public. That is a dedication, and we want no more. A proclamation was put in, but that seems to me merely adding to that which was sufficient before." The more recent authorities emphasise the need for the party contending that a given strip of land constituted a public road to prove use by the public: see, in addition to the Permanent Trustee case, Vickery v Municipality of 20. Strathfield (1911) 11 CLR 354 at p.361, Attorney General v The City Bank of Sydney (1920) 20 SR (NSW) 216 at p.220, Owen v O'Connor [1964] NSWR 1312 at pp.1319-1320, Newington v Windeyer (1985) 3 NSWLR 555 at p.563. In Owen, at p.1320, Sugerman J expressly affirmed the insufficiency of a mere declaration of intention to dedicate: "A declaration of intention to dedicate is not, however, sufficient of itself to bring about the dedication of a public highway. There must also be acceptance by the public, which is to be inferred from public user of the way. But at common law adoption or acceptance by the local authority is not essential ... Maintenance and repair at the public expense are, however, material and so also is use by public authorities for purposes, such as the laying of water or sewer mains or the erection of electric power lines, for which public highways are commonly used. 'The proper way of regarding these cases is to look at the whole of the evidence together, to see whether there has been such a continuous and connected user as is sufficient to raise the presumption of dedication; and the presumption, if it can be made, then is of a complete dedication, coeval with the early user. You refer the whole of the user to a lawful origin rather than to a series of trespasses' (Turner v. Walsh (1881), 6 App. Cas. 636, at p.642." In none of the 20th century cases, which I have read, is any reférence made to Rapley or to Scott. This is surprising, especially having regard to the identity of some of the judges involved in the more recent cases. There is no hint in the recent cases of the existence of a different rule, in relation to the necessity for acceptance, as between Crown and private dedications. It may be that this is because the judges who decided those cases thought that there was no different rule. It may be that, being concerned with private dedications, the question of Crown dedication did not arise; 21. although it should be noted that in the City Bank case the relevant road was dedicated by the government, on resumed land. The necessity for evidence of acceptance in relation to the dedication of roads by the Crown is an important question having ramifications well beyond the present case. There must be numerous holdings of land in Australia upon the titles of which road reservations are marked; these reservations being strips of land neither developed for, or used as, public roads. If mere dedication is enough to constitute those strips as public roads, as Rapley and Scott suggest, these markings constitute a significant limitation upon the title of the holders. In the view I take, it is not necessary to decide this important question in the present case. Even 1f mere dedication is enough, in the case of dedication by the Crown, it seems to me that the evidence does not establish the necessary intention to dedicate. The evidence as to dedication In 1982 the relevant land was vested in the Crown in right of the Northern Territory in fee simple, but subject to a lease in favour of the Aboriginal Development Commission. It may be accepted that officers of the Northern Territory government intended that public moneys would be spent on constructing the Mt Theo road, and that such moneys were 22. spent. It is less easy to accept that such officers had the intention, or the authority, to dedicate the land to the public. A dedication of land as a road confers rights upon members of the public in derogation of the previous rights of the dedicator. An intention to dedicate should be inferred only from unequivocal acts of dedication. No doubt it 1s for that reason that the act of dedication usually takes the form of marking the plan as a road reserve upon a document of title such as a land grant or a plan of subdivision. In such a case the position and dimensions of the road reserve are clearly stated, in such a manner that there can be no question as to the precise identity of the land the subject of the dedication. By contrast, in the present case, the position of the road has not been marked upon any document of title. The road is merely shown upon a plan prepared in order to locate the land the subject of the Aboriginal land claim. The dimensions of the road are not shown. The road is indicated merely by a line, no clue being given as to its width. I think that the proper view is that this plan was prepared for information only, in relation to the land claim; and without any intention that the drawing of the plan would constitute a dedication of the site of the road to the public in derogation of the rights which would otherwise be available to the Crown. A second aspect of intention arises out of the position of the lessee, the Aboriginal Development Commission. Surprisingly, counsel were unable to find any cases dealing with the question whether the consent of a lessee is required for the dedication by the freeholder of land as a public road. 23. However, the law relating to other interests provides guidance. According to Halsbury "Laws of England" (4th ed) vol.21 para.67, before 1926, when copyhold title was abolished in England, there could be no effective dedication of land without the joint concurrence of the lord of the manor and of the copyholder. Similarly, a leaseholder could not dedicate land as a highway without the consent of the owner of the freehold (para.68). When land was held in settlement, dedication required the consent of all persons interested in the settlement (para.69). Where land was subject to a mortgage, the mortgagee's consent was necessary (para.70). The relevant principle is illustrated by the decision of the English Court of Appeal in Farquhar v Newbury Rural District Council [1909] 1 Ch 12. That case concerned land settled upon a tenant for life with immediate remainder to a tenant in fee, both of whom were sui juris. A question arose whether a road constructed over the land and used by members of the public had been dedicated as a public road. It was contended that, by reason of the life interest, there could have been no valid dedication of the road. This proposition was rejected, all members of the Court holding that the tenant for life and the remainderman together could have dedicated the land as a road. At p.15 Cozens-Harding MR pointed out the need for a joint intention: "The tenant for life alone, of course, could not bind the remainderman. The remainderman, not being in possession, could not dedicate without the concurrence of the tenant for life". Farwell LJ put the 24. matter more succinctly at p.19: "A man cannot dedicate that which is not his own, but there is nothing to prevent several owners who between them own the entire fee from dedicating". The same principle must apply to a lease. Were it otherwise, it would be possible for the fee simple owner to lease land -- perhaps for a substantial term such as 99 years and at a substantial premium -- and then to diminish the utility of that land to the lessee by opening a public road through the land. I think that the words "competent landowner", used by Windeyer J in the Permanent Trustee case, must be read as referring to the person or persons holding all of the existing legal interests in the relevant land. The submission is made on behalf of the applicant that, if the consent to dedication of the Aboriginal Development Commission was required, that consent had been given. It is not suggested that the Commission itself gave any consent. But it is said that the Commission is an emanation of the Crown in right of the Commonwealth; accordingly that it was open to the Commonwealth government -—- by a relevant officer -~- to grant consent to the dedication; and that the letter of 8 February 1982 from Mr Styles to the Officer-in-Charge of the Community Government Division at Alice Springs constituted such a consent. I think that each of the first two propositions in this argument is open to question; but I need not stay to discuss them. Mr Styles did not purport to give any consent, 25. on behalf of the Aboriginal Development Commission or any body else, to the dedication of any land as a public road. All that Mr Styles did, as an officer of the Department of Aboriginal Affairs, was to indicate that, amongst other roads, a road from the Tanami road to Mt Theo "would be of great benefit to people resident or proposing to reside at outstations in the vicinity of Yuendunu". The letter left open both the manner of providing the road and its route. As counsel for the second respondents points out, it would be possible to build a road linking the Tanami road to Mt Theo without traversing any part of the land leased to the Aboriginal Development Commission. It would also have been consistent with Mr Styles' letter that any road to be provided should be a private road, with limited access, or that it should be opened in accordance with the formal requirements of the Control of Roads Act, the Minister first acquiring from the lessee its interest over the proposed road reserve. Both the second and third arguments put by the applicant include, as an essential element, the proposition that the relevant land was dedicated as a road. They then refer to added ingredients, in the alternative: user by the public and public expenditure. Having regard to the restricted classes of persons who are shown to have used the road since 1982 and the absence of evidence to negative the possibility that those persons used the road pursuant to an express permission given on behalf of the Aboriginal Development Commission and the Central Desert Aboriginal Land Trust, it is not obvious that the user which has occurred is 26. such as to amount to an acceptance by the public of any dedication as a road: cf Schubert v Lee (1946) 71 CLR 589, Ireland v Haesler [1959] VR 4. The applicant may be on stronger ground in relation to public expenditure. There is no doubt that public monies have been spent upon the road. In the Permanent Trustee case, at p.422, Windeyer J suggested that a declared intention to dedicate might "be ripened into dedication by public user of the land as a road, or by a public body having authority to take it over on behalf of the public doing so, by for example, expending money in forming or maintaining it as a road". If there had been an act of dedication in the present case, the expenditure of public funds upon the maintenance of the road might have made out the applicant's case on acceptance; although in determining that point it would have been necessary to consider the significance, if any, of the particular source, within government, of the funds. In other words, there may have been a question whether this expenditure was made as part of the management of the public road system of the Northern Territory or by way of special assistance to a particular class of Territory residents. In view of my conclusion that there was no effective act of dedication it is unnecessary to determine whether there has been an act of acceptance. Even leaving aside the procedural and evidentiary problems occasioned by the form of the Application, it is clear that the challenge to the Minister's decision must fail. The Application should be dismissed, with costs. 27. I certify this and the twenty-six (26) preceding pages to be a true copy of the Reasons for Judgment of his Honour Justice Wilcox. Associate ma ae Date: 3 August 1988 Counsel for the Applicant: Mr J D Heydon QC with Mr J D Barrett Solicitor for the Applicant: Solicitor for the Northern Territory Counsel for the First Respondent: Mr R J Burbidge QC with Mr T Riley Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondents: Mr T F Robertson Solicitor for the Second Respondents: Mr David Holt Avery Date(s) of hearing: 6 July 1988