Federal Court of Australia|1989-05-10|Before: Lockhart J, Kearney J

The applicant asserts that the first respondent made the decision which he attacks in this case to grant the land to the Yalpirakinu Aboriginal Land Trust including the stock route and stock reserve in question without giving him an adequate opportunity to present material relating to the detriment which was said to flow from the inclusion of the stock route and stock reserve in the land grant. In these circumstances he claimed that he was denied natural justice and that the decision in question in this case should be set aside.

48. The relevant stock route is known as the North-West Stock Route. The stock reserve is one of a number of stock reserves throughout the Northern Territory. Such reserves have several purposes, one purpose being to assist in the control of diseases in cattle. Some reserves contain public dips which play a role in the defence against the spread of cattle tick by travelling stock particularly in years when ticks spread southwards in response to wetter than normal climatic conditions and stock travelling on stock routes are required to be dipped. The reserves could be important for quarantine and holding cattle in the event of an outbreak of exotic diseases. They are also used for spelling cattle being moved whether by truck or on the hoof and for holding up one mob to allow another to pass according to normal droving practice.

49. There was considerable material before the first respondent dealing with the question of the stock reserve and stock route when he made his decision. The Ti-Tree, Chilla Well and Warumunga reports were all before the first respondent. They were reports of the then Aboriginal Land Commissioner, Maurice J. Maurice J. dealt extensively with the stock route known as the North-South Stock Route and relevant reserves in those reports. He explained in some detail the role which they serve in the Northern Territory and dealt with matters of alleged detriment which would flow from their inclusion in land grants.

50. The report of Kearney J. with respect to the Mount Allan Land Claim deals with stock routes and stock reserves in particular the North-West stock route and the relevant reserve at paragraphs 121 to 133 of his Honour's report. I do not propose to cite passages from the report or even to summarise it but I will mention some of the principal statements made in it. His Honour mentions that the North-West stock route has not been declared as such by notice in the gazette or reserve by proclamation and was at best only a proposed reserve. The applicant has treated the lands as if they were a stock route and proposed reserve. His Honour referred to the network of stock routes and reserves throughout the Territory and the part they play in the development of the cattle industry. He also dealt with the likelihood of the use of the stock routes and the reserve for moving cattle in the future and he said in para. 132:

"Drawing these matters together the position is as

follows. The stock route may not exist, as a

matter of law; but it has for many years been

regarded as a stock route. There is no existing

stock reserve. If the stock route exists, it

presently serves no practical purpose. It is

conceiveable, though unlikely, that in years to

come the practice of walking cattle may revive.

In that event the stock route would provide a

means of moving stock. But the North-West Stock

Route effectively ends at Yuendumu; the use of the

route across Mount Allan would in any event be

necessarily be very limited. The better view is

that the stock route will cease to exist if there

is a grant to a land trust; ... Accordingly, if it

is thought that the stock route should yeild to

the claim, a grant of the claim area will achieve

that end; if it is thought that the stock route

should be preserved, it should be gazetted, and a

grant of the land which recognises it will ensure

its continuance. To preserve the route it would

appear to be unnecessary to excise it from a

grant; to do so would divide Mount Allan into two

separate segments. There is no power for a grant

to be made determinable as to land required for a

public purpose of the Territory, such as a stock

route, should the land be not made available for

that purpose in the future when the need arises;

nor can there be a binding agreement before a

grant is made, for the use of the land as a stock

route, should that use become necessary in the

future."

"The detriment to adjoining pastoralists and others

which might result if they no longer could use the

stock route, sufficiently appears in the

discussion in paras. 129-132. Napperby has no

occasion to use the route; Coniston has never used

it; Mount Denison may have used it some fourteen

years ago, and certainly used it some twenty-five

years ago; Central Mount Wedge used it twenty

years ago, when it moved cattle from Western

Australia along the North-West stock route, a

course no longer possible since sections of that

route no longer exist. Without Federal

legislation along the lines of s. 27 of the Stock

Routes and Travelling Stock Act it is difficult to

see how in practice any one could effectively gain

access across Mount Allan to use the stock route,

assuming a grant is made and the route is

preserved; by destroying rights under s. 27, a

grant occasions detriment to pastoralists of the

same order as the loss of the stock route, access

to which was secured by those rights."

52. There was a great deal of material touching on the question of stock routes and stock reserves generally and this particular stock route and reserve before the first respondent when he made his decision of 20 October 1988 to recommend the grant of the Mount Allan station I have referred to only some of it. It was part of a saga which had a history of years before the making of the decision and I frankly find it difficult to see what material relating to detriment could be put before the first respondent in addition to that which he already had before him. Nor is there any evidence of material subsequently being put to the first respondent (that is subsequent to his decision of October 1988) bearing on this question of detriment.

53. I should mention that by letter of 18 July 1985 the Central Land Council informed the then Minister for Aboriginal Affairs with respect to the Mount Allan land claim that at a meeting of the traditional owners held at Mount Allan the question of use of the stock route was discussed and the Minister was asked to reassure the applicant that the traditional owners would not unreasonably withhold or delay permission to move stock through their land in accordance with the provisions of the Stock Routes and Travelling Stock Act should the occasion arise in the future where this would be necessary. The letter also said that once a land trust had been formed and title granted the land trust members were willing to sign a letter to that effect.

54. The North-West Stock Route travels, as the name of the route indicates, broadly north-west a little south of the centre of the Mount Allan station and the stock reserve is close to the western boundary of the station near the intersection of road 14 and the Tanami Highway.

55. Hence as far back as June 1985 a submission by the applicant requesting exclusion of the north-west stock route and the stock reserve from the land grant were before the then Minister for Aboriginal Affairs. All this material was before the first respondent when he made the decision with which this case is concerned.

56. Evidence before Bowen C.J. in case 305 of 1986 was also before the first respondent and that litigation as I have said earlier sought a writ of prohibition prohibiting the Minister for Aboriginal Affairs from exercising powers under sub-s. 11(1) of the Act in respect of land comprising the North-West Stock Route on the Mount Allan station and the stock reserve.

57. It is true that the first respondent's decision to grant the land including the stock route and stock reserve was made before the expiration of the 28 days requested by the applicant as the time within which it wished to make submissions dealing with this question. The decision was, however, made on the 27th day. Prior to the decision some correspondence from the applicant was received by the respondents including a letter of 26 September 1988 to the second respondent which dealt primarily with the exclusion of the roads from the land grant. A letter of 5 October 1988 was sent by the applicant enclosing maps and plans but it is silent about the question of the stock route or reserve or any submission with respect to them. No submission concerning stock routes was in fact made.

58. The Ministerial submission of 19 October 1988 mentioned that the applicant had said it wished to make submissions on interstation roads and said that a further submission with respect to stock routes had not been received and it was for the first respondent to decide whether he should proceed or not. The first respondent decided to issue the land grant.

59. It is difficult to see what material remained for the applicant to put with respect to the north-west stock route and the stock reserve on Mount Allan. The whole issue seems to have been fully canvassed in and after 1985 and was dealt with by Kearney J. in his report on the Mount Allan Land Claim. Nor has any material been put before this Court showing what the applicant desires to say with respect to any detriment that would flow from the conclusion of the stock route and stock reserve except what has already been before the first respondent and his predecessor in 1985. In these circumstances it is unlikely that there were material facts unknown to the Minister at the time he made his decision. The present case may therefore be distinguished from the situation in Minister for Aboriginal Affairs and Anor. v Peko-Wallsend Ltd. and Ors. [1986] HCA 40; (1985-6) 162 CLR 24.

60. It is unnecessary for me to state the relevant principles governing the application of the rules of natural justice. They are fully mentioned in Kioa and Ors. v West and Anor. [1985] HCA 81; (1985) 159 CLR 550 and The State of South Australia v O'Shea [1987] HCA 39; (1987) 163 CLR 378; see also Hawuca v Minister for Immigration 28 September 1988, an unreported decision of the Full Bench of this Court.

61. In my opinion there has not been a denial of natural justice to the applicant.

62. There is one final matter I should mention. During argument before me I gave leave to the parties to submit in writing after argument had concluded summaries of portions of the evidence and further written argument on certain limited issues. After I reserved judgment the course was adopted by the Fourth Respondent of filing written submissions dealing with issues that fell outside the leave granted and with issues not previously raised. I thought that these documents had culminated in what was described as the "Fourth Respondent's Rejoinder to the Applicant's Response"; but this was in turn followed by what may be described as modern derivatives of a rebutter and surrebutter.

63. Finally, I asked counsel to see me in chambers where I said that I would receive no further documents of this kind and that if the Fourth Respondent (the most active party in this regard) wished to reopen the hearing it must do so by filing and serving a notice of motion to that effect by Thursday 20 April 1989. Later I was informed that it was not intended to file any such notice of motion.

64. I mention these matters, not by way of criticism of the Fourth Respondent, but for the constructive purpose of reminding parties of the words of Mason J. in Carr v Finance Corporation of Australia Limited (No. 1) [1981] HCA 20; (1981) 147 CLR 246 at 258:

"The impression, unfortunately abroad, that parties

may file supplementary written material after the

conclusion of oral argument, without leave having

been given beforehand, is quite misconceived. We

have to say once again, firmly and clearly, that

the hearing is the time and place to present

argument, whether it be wholly oral or oral

argument supplemented by written submissions."

See also Carr v Finance Corporation of Australia Limited (No. 2)[1982] HCA 43; , (1982) 150 CLR 139 per Mason, Murphy and Wilson JJ. at 143.

Land Rights (Northern Territory) Act 1976

Decisions (Judicial Review) Act 1977

Land Rights (Northern Territory) Act 1976

Decisions (Judicial Review) Act 1977

Land Rights (Northern Territory) Act 1976

Decisions (Judicial Review) Act 1977

Land Rights (Northern Territory) Act 1976

Decisions (Judicial Review) Act 1977

Re Attorney General of the Northern Territory of Australia v the Honourable Gerard Leslie Hand, Minister of Aboriginal Affairs; the Honourable Lionel Frost Bowen, Attorney General of the Commonwealth of Australia; Robert Aubrey Bradshaw, the Reg [1989] FCA 159 (10 May 1989)

18. The question whether land has been dedicated and accepted as a public road has been considered by courts over many years. The cases are conveniently collected by Windeyer J. in Permanent Trustee Company of New South Wales Limited v Campbelltown Municipal Council [1960] HCA 62; (1960) 105 CLR 401 at 420-426. They are directly applicable here because in my opinion it is the same question as is posed in this case notwithstanding the language of sub-s. 12(3) of the Act which speaks of the existence of "a road over which the public has a right of way". I agree with Wilcox J. in Attorney-General for the Northern Territory v Minister for Aboriginal Affairs that those words are synonymous with "public road". I use the word "road" in the neutral sense of land which provides passage from one place to another.

40. When determining whether a dedication of a road has been made the following passage from the judgment of Barton J. in President of the Shire of Narracan v Leviston [1906] HCA 34; (1906) 3 CLR 846 at 871 where his Honour was considering whether certain rural land in the Shire of Narracan had been dedicated as a highway is of assistance:

Re Attorney General of the Northern Territory of Australia v the Honourable Gerard Leslie Hand, Minister of Aboriginal Affairs; the Honourable Lionel Frost Bowen, Attorney General of the Commonwealth of Australia; Robert Aubrey Bradshaw, the Reg [1989] FCA 159

At a glance

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Judgment (21 paragraphs)

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Legislation Cited (12)

Cases Cited (10)

Re Attorney General of the Northern Territory of Australia v the Honourable Gerard Leslie Hand, Minister of Aboriginal Affairs; the Honourable Lionel Frost Bowen, Attorney General of the Commonwealth of Australia; Robert Aubrey Bradshaw, the Reg [1989] FCA 159 (10 May 1989)