Attorney-General for the N.T. of Australia v The Honourable Maurice, M

[1987] FCA 349

Re: THE ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA
And: THE HONOURABLE MICHAEL DAVID ANDREW MAURICE, ABORIGINAL LAND COMMISSIONER
and JACK KIJIGARI JAPANGKA & ORS
Nos. 557 and 558 of 1986
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart(1), Sheppard(2) and Burchett(3) JJ.

CATCHWORDS

Administrative Law - Judicial Review Act - Writs of Prohibition and Certiorari sought - whether description of land in a land claim application under the Aboriginal Land Rights (Northern Territory) Act 1976 inadequate and defective - conflict between application's description and attached map - whether reconcilable - applicability of contra proferentem rule and maxim falsa demonstratio non nocet cum de corpore constat.

Aboriginal Land Rights (Northern Territory) Act 1976: s. 50.

HEARING

SYDNEY

#DATE 3:7:1987

Counsel and solicitor's agent for the appellant: D.M.J. Bennett Q.C. with D. Barrett instructed by Messrs. Freehill, Hollingdale & Page

Solicitor for the first respondent: The Australian Government Solicitor

Counsel and solicitor's agent for the second respondent:
R. Howie instructed by Messrs. Dawson Waldron

ORDER

The Appeal No. 557 of 1986 be dismissed;

In Appeal No. 558 of 1986 it be declared that the application dated 9 November 1978 lodged with the Aboriginal Land Commissioner (Kearney J.) by the Central Land Council on behalf of several Warramunga clans pursuant to para. 50(1)(a) of the Aboriginal Land Rights (Northern Territory) Act 1976 does not include the area of land shown in the map attached to the said application as having an area of 269 square kilometres (269km2);

Appeal No. 558 of 1986 be otherwise dismissed; and

The appellant pay one-half of the second respondents' costs of the two appeals and of the two proceedings at first instance before Beaumont J. Otherwise no order as to costs.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The question in these two appeals is whether the description of a large area of land in the Northern Territory appearing in a traditional land claim application is sufficiently certain to enable the land to be identified.

1. The Central Land Council, a statutory body incorporated under the Aboriginal Land Rights (Northern Territory) Act 1976 ("the Act"), lodged with the then Aboriginal Land Commissioner (Kearney J.) on behalf of several Warramunga clans a land claim application dated 9 November 1978 pursuant to para. 50(1)(a) of the Act, which has become known as the Warramunga Land Claim.

2. The land claimed is a large area of vacant unalienated Crown Land in the Northern Territory extending to the north, east and south of the town of Tennant Creek, almost completely encircling it. The land is bounded almost entirely by pastoral leases.

3. The Central Land Council lodged four amended applications in the Warramunga Land Claim, namely, on 22 August 1980, 20 September 1982, 4 June 1984 and 12 July 1984.

4. The hearing of the Warramunga Land Claim commenced on 1 November 1982 before Kearney J. . On 4 November 1982 the hearing was adjourned. It resumed on 4 March 1985 before the present Aboriginal Land Commissioner (Maurice J. who is the first respondent). The Commissioner heard and received submissions as to the extent of his jurisdiction, in particular with respect to whether any, and if so what, part of the land included in the Warramunga Land Claim is within the extended boundaries of the township of Tennant Creek.

5. On 27 March 1986 the Commissioner made a ruling and gave reasons in which he held that the original land claim application of 20 November 1978 was competent in so far as it related to land lying immediately outside the Tennant Creek town boundaries as constituted by proclamation made under the Crown Lands Ordinance 1931 (as amended) 1970.

6. The appellant, the Attorney General for the Northern Territory, then filed two applications in this Court: one for the issue of a writ of prohibition directed to the Commissioner to prohibit further proceedings on the Warramunga Land Claim and for the issue of a writ of certiorari quashing the Commissioner's ruling on jurisdictional issues given by him on 27 March 1986; and the other seeking judicial review under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") of the Commissioner's ruling. It is common ground that the two applications raised the same substantive issues. They were heard together by consent before a single Judge of this Court (Beaumont J.). The two appeals from his Honour's decisions were also heard together by consent.

7. Application may be made by or on behalf of Aboriginals claiming to have a traditional land claim to an area of land that is unalienated Crown Land or alienated Crown Land in which all estates and interests not held by the Crown are held by or on behalf of Aboriginals. A traditional land claim is a claim by or on behalf of the traditional Aboriginal owners of land arising out of their traditional ownership. Unalienated Crown Land is Crown Land in which no person other than the Crown has an estate or interest but it does not include land in a town. Alienated Crown Land means Crown Land in which a person other than the Crown has an estate or interest but it does not include land in a town. Thus, applications may not relate to land in a town or to alienated Crown Land unless all estates and interests in that land not held by the Crown are held by or on behalf of Aboriginals.

8. When an application is made under para. 50(1)(a) of the Act the function of the Commissioner is, to ascertain whether the Aboriginals applying or any other Aboriginals are the traditional Aboriginal owners of the land, to report his findings to the Minister for Aboriginal Affairs and, where the Commissioner finds that there are Aboriginals who are the traditional owners of the land, to make recommendations to the Minister for Aborigianl Affairs for the granting of the land or any part of it to a Land Trust. There is no prescribed form of application. However, s. 51 of the Act provides that the Commissioner "may do all things necessary or convenient to be done for or in connexion with the performance of his functions". On 8 June 1977 the then Commissioner (Toohey J.) made practice directions in exercise of the power conferred by s. 51 and in response to submissions made at a public hearing on 12 and 13 May 1977. The practice directions required that applications be in writing and addressed to the Associate to the Commissioner. Direction 8 states:
   
   

" . . . the application should ensure as far as possible that the identity of the claimants and the land claimed appears clearly. To this end the application should set out the following information -

(a) the names of those persons by or on behalf of whom the application is made;

(b) a description of the land claimed accompanied by a map showing clearly the location of the land;

. . . "

One of the introductory paragraphs of the practice direction states-

"These Directions should not be regarded as inflexible or as not subject to change in particular instances. Their purpose is to assist in the orderly presentation and hearing of applications under s. 50(1)(a) of the Act and to ensure as far as is practicable that applications receive adequate publicity and in particular that they come to the notice of any person or organisation likely to be affected by the exercise of the Commissioner's functions in regard to those applications."

1. Before the Commissioner, the learned trial Judge and this Full Court the appellant argued that the description of the land claimed in the Warramunga Land Claim application was inadequate and defective in several respects and therefore the claim was void for uncertainty. The Commissioner and the trial Judge rejected these arguments. The trial Judge held that by looking at the description of the land claimed as a whole and having regard to the map attached to the application it was possible to identify the land claimed and that, contrary to the appellant's submissions, it was not appropriate to resort to rules of construction of legal documents, which in some cases can have an artificial operation, such as the contra proferentem rule and the maxim falsa demonstratio non nocet cum de corpore constat.

2. This case is not concerned with the interpretation of a precise legal instrument such as a will, Crown grant or conveyance. The document is a form of application to the Aboriginal Land Rights Commissioner on behalf of the second respondents as Aboriginals claiming to have a traditional land claim to land being unalienated Crown Land in the Northern Territory.

3. These applications usually relate to large areas of land, measured not in square feet or square metres but in square kilometres; sometimes, as in this case, not only hundreds, but thousands. The land is often in remote regions of Australia, is used for sparse grazing, rarely for agriculture, and, though not lacking its own special significance and beauty, is usually hot and dry. It is not surprising, therefore, that the forms of Pastoral Leases of land which abut the land which is the subject of the application in this case describe the land included in those leases, not by metes and bounds, but by reference to plans included in the leases themselves. Indeed, at the foot of each plan of the land included in these Pastoral Leases is a note which reads as follows:-
   
   

"The trigonometrical surveys not being sufficiently advanced to enable the preparation of correct plans, this plan is issued on the distinct understanding that the Government does not guarantee its accuracy as to boundaries and that such are liable to correction on completion of surveys so as to secure original boundaries to prior applicants. All corrections of boundaries and areas to be subject to the approval of the Surveyor-General whose decisions in all cases shall be final."

1. The draftsman of the form of application in this case set out to describe the land by a metes and bounds description; no easy task, as the evidence and the argument in this case revealed. Counsel for the appellant in argument sought to describe the land claimed to the trial Judge and to us by reference to a plan which was not tendered in evidence. In the course of counsel's description it became apparent that this plan did not conform with plans and maps in evidence in more than one respect. This is said in no way critically; but I mention it simply to point out that the facts of this case demonstrate the difficulty of defining with any degree of real precision the area of the land claimed by the second respondents.

2. One must therefore approach the question of interpretation of the application and the identification of the land which it claims with these considerations in mind and conscious of the fact that the Court is considering applications relating to land claims by traditional Aboriginal owners under the Act which is, as its short title says: "an Act providing for the granting of Traditional Aboriginal Land in the Northern Territory for the benefit of Aboriginals, and for other purposes". This requires a liberal or broad construction to give effect to the beneficial purpose it is intended to serve: Re Kearney; Ex parte Jurlama (1984) 52 ALR 24 per Gibbs C.J. at p 28; Re Kearney; Ex parte Northern Land Council (1984) 52 ALR 1 at 7 and Re Toohey; Ex parte Meneling Station Pty. Ltd. (1982) 44 ALR 63 at 77.

3. It is now convenient to state the description of the land as it appears in the application:
   
   

"DESCRIPTION OF LAND CLAIMED:

An area of Unalienated Crown Land in the Tennant Creek area. The claim area is bounded by a line commencing at the easternmost point of the northern boundary of Epenarra Pastoral Lease then due north to the southern boundary of Dalmore Downs Pastoral Lease, then west and then north to the junction of the western boundary of Dalmore Downs Pastoral Lease, with the southernmost boundary of Rockhampton Downs, then west, then north and then west along the boundary of Rockhampton Downs Pastoral Lease, and the southern boundary of Burnchilly Pastoral Lease to the eastern boundary of Phillip Creek Pastoral Lease then following the boundary of Phillip Creek Pastoral Lease, in a southerly, then westerly, then southerly, then easterly, then northerly, then north easterly, then easterly, then southerly, then westerly, then northerly and then westerly direction to the easternmost point of the northernmost boundary of Tennant Creek Pastoral, then along the boundary of Tennant Creek Pastoral Lease, southerly, then westerly, then southerly, then easterly and then southerly to the westernmost point on the northernmost boundary of McLaren Creek Pastoral Lease. Then easterly, then southerly and then westerly along the boundary of McLaren Creek Pastoral Lease to that boundary's intersection with the westernmost boundary of Kurundi Pastoral Lease. Then northerly, then easterly, then northerly, then easterly along the boundary of Kurundi Pastoral Lease to its junction with the western boundary of Epenarra Pastoral Lease. Then northerly and then easterly along the boundary of Epenarra Pastoral Lease to the point of commencement, but excluding areas within the area so enclosed defined as a town under the terms of the Aboriginal Land Rights (Northern Territory) Act, 1976, Section 3(1).

1. The land claimed is shown on the attached map."

2. A copy of the application and the map attached to the application are appended to these reasons. The map is a photocopy of a portion of the Pastoral Map of the Northern Territory. The Pastoral Map appears to have been published by the Government of the Territory to indicate the location of pastoral leases. On the map attached to the application the area claimed is outlined and hatched in blue biro. The Pastoral Map of the Northern Territory from which the map attached to the application was copied was an earlier edition of the Pastoral Map of the Territory than that dated September 1979 which was tendered in the proceeding before the trial Judge and marked Exhibit "1". His Honour said that it was common ground that the 1979 edition was the same, in all material respects, as the earlier edition.

3. I see no useful purpose in setting out the various possible interpretations of the metes and bounds description of the land to which we were referred in argument. They are sufficiently described in the reasons for judgment of the trial Judge, the reasons for decision of the Commissioner and the outlines of counsels' arguments before us. Also, merely to set out the various arguments would make little sense unless the recitation is accompanied by an appropriate plan or map. What I propose to do is to state my view of the land claimed in the application with reference to a sketch which I set out below. I have reached this view after considering the argument advanced before us and the reasons of the trial Judge and the Commissioner.
   

(MAP OMITTED)

1. Looking then at my sketch, one commences, according to the description in the application, at point numbered 1 (my numbering for convenience), which commences at the easternmost portion of the northern boundary of Epenarra Pastoral Lease. One then proceeds as follows:-
   
   

- due north to 2, the southern boundary of Dalmore Downs Pastoral Lease

- west to 3

- north to 4, the junction of the western boundary of Dalmore Downs Pastoral Lease with the southeastern boundary of Rockhampton Downs

- west to 5

- north to 6

- west along the boundary of Rockhampton Downs Pastoral Lease and the southern boundary of Brunchilly Pastoral Lease to the eastern boundary of Phillip Creek Pastoral Lease, at 7 - one follows the boundary of Phillip Creek Pastoral Lease in a southerly direction to 8

- west to 9

- south to 10

- east to 11

- north to 12

- north east to 13

- east to 14

- south to 15

- west to 16 and

- north to 17.

So far the appellant does not attack the description of the land in the application; but the first of three criticisms is now made.

1. The metes and bounds description then provides that one travels from point 17 in a "westerly direction to the easternmost point of the northernmost boundary of Tennant Creek Pastoral". In one sense this may not strictly be a correct description for a number of reasons fully canvassed in argument.

2. The Commissioner explained the matter in the reasons for his decision of 27 March 1986 in these terms:
   
   

"Looking at the relevant lease documents it can be seen that Tennant Creek Station has an unusual configuration inasmuch as it consists of two more or less disconnected parts lying on opposite sides of the Stuart Highway. The more northerly of the two lies to the east with the Highway separating it from Phillip Creek Station. In fact, this northern segment appears more naturally to be an easterly extension of Phillip Creek Station than part of Tennant Creek. The original mapmaker has adopted the style of placing the name of each pastoral lease holding in about the centre of the area representing the holding using an upper case print form not used for any other purpose on the map. In the case of Tennant Creek Station, the words 'TENNANT CREEK' appear in approximately the middle of the southern part of the run, but do not appear in this form in the northern part. (Both the town and the watercourse are named, but in different print styles and quite obviously as features different from the pastoral holding.) It is therefore easy to get the impression from looking at the Pastoral Map that Phillip Creek Station extends to the east of the Highway and includes what in truth turns out to be the northern part of Tennant Creek Station."

1. Another relevant consideration is that at or about the point in question (which I have numbered 18 in my sketch) the map attached to the application shows a black blob which, on analysis from the Pastoral Map from which that map was copied, is the representation of an aeroplane as the sign for an aerodrome. Its presence, however, does not facilitate the precise identification of the relevant point to which the metes and bounds description is directed. This illustrates the need to read the metes and bounds description as a whole and in conjunction with the map attached to the application.

2. When the metes and bounds description, which refers to travelling in a "westerly direction to the easternmost point of the northernmost boundary of Tennant Creek Pastoral", is read in the context of the metes and bounds description as a whole, in particular the description that follows those words, and in the light of the map attached to the application, it is plain in my opinion that the description refers to point 18 on my sketch.

3. It is true that that point is not in fact the "easternmost point of the northernmost boundary" of the relevant part (the western part) of Tennant Creek pastoral property. The northern boundary of that part terminates in an extended relatively narrow finger of land jutting to the east, and formed by an easterly prolongation of the northern boundary and a parallel line a short distance to the south. Where the two lines end to the east they are joined (to complete the tip of the finger) by a relatively short north-south line, but on the copy of the pastoral map, which it is accepted the draftsman used, the two parallel lines have virtually coalesced into a thickened line, partly as a result of photostating and partly as a result of the superimposition of the symbol for an aerodrome previously mentioned. When the map is seen, it is clear that the misdescription of the southern line of this finger of land as if it were a prolongation of the northern boundary of the pastoral holding is perfectly explicable. The northern boundary of the finger itself, which must have appeared to the draftsman to be the same line, is just such a prolongation.

1. One then travels to point 19 along the boundary of Tennant Creek Pastoral Lease in a southerly direction
   
   

- west to 20

- south to 21 and

- east to 22.

1. From this point (22) the metes and bounds description, namely, "and then southerly to the westernmost point on the northernmost boundary of McLaren Creek Pastoral Lease", gives rise to the second criticism of the appellant.

2. The plan in the Tennant Creek Pastoral Lease - No. 779 - shows that the point which I have numbered 23 on my sketch is not precisely at "the westernmost point on the northernmost boundary of McLaren Creek Pastoral Lease". If one follows the boundary of Pastoral Lease No. 779 southerly from point 22 then the only point which could answer (though not precisely) the metes and bounds description is a point (23) on the western side of a stock route (which appears to be one mile wide). It is only by extending a straight line from that point (23) to a point about half a mile to the east (which is about the centre of the stock route where the Stuart Highway is situated) that one finds the westernmost point on the northernmost boundary of McLaren Creek Pastoral Lease.

3. The plan in McLaren Creek Pastoral Lease - No. 646 - depicts the northernmost boundary of the lease as travelling east-west, the westernmost point of which crosses so much of the north-south stock route as travels east of the Stuart Highway and ends at the Stuart Highway. The Pastoral Map shows stock routes as shaded in yellow and the Stuart Highway is shown as a stock route. The plan in Pastoral Lease No. 646 depicts the eastern boundary of the Tennant Creek Pastoral Lease (at the point under discussion) as the western side of the Stuart Highway (or stock route) and the western boundary of the McLaren Creek Pastoral Lease (at the point under discussion) as the eastern side of the Stuart Highway (or stock route).

4. There is therefore some inconsistency between the Pastoral Map and the plan in Pastoral Lease No. 646 in that the plan depicts the east-west line along the northernmost boundary of the McLaren Creek Pastoral Lease as crossing so much of the stock route as lies east of the Stuart Highway and ending at the line depicted as the Highway itself, whereas the Pastoral Map simply shows the stock route and the Stuart Highway as one and the same. Also, the plan used by counsel for the appellant as an aid to argument shows the stock route as extending west of the Stuart Highway but not as extending to the east of it.

5. All of this goes to show how unwise it is to construe the metes and bounds description in the application as if it were a precise legal instrument of conveyance or devise. It is obvious to my mind that the draftsman of the map attached to the application intended "the westernmost point on the northernmost boundary of McLaren Creek Pastoral Lease" to be the point numbered 23 in my sketch, notwithstanding that it is strictly about half a mile from that northernmost boundary. It is important to note that, by projecting westerly the east-west line along the northernmost boundary of McLaren Creek Pastoral Lease, the line so projected intersects the line travelling south from point 22 at my point 23 and that is the concept which the draftsman obviously intended to convey by the words he chose. It is now time to leave my already lengthy, and, I hope not too confusing, analysis of point 23.

6. One then travels from point 23 east to point 24. The metes and bounds description then states that one proceeds "southerly and then westerly along the boundary of McLaren Creek Pastoral Lease to that boundary's intersection with the westernmost boundary of Kurundi Pastoral Lease." In this description lies the genesis of the third and fourth grounds of attack of the appellant. I have no doubt that the instruction by the draftsman to travel "southerly" from point 24 leads to point 25. About one-third of the distance from point 24 going south is a "kink" or square as depicted on the map attached to the application. This area is shown on the Pastoral Map as hatched in yellow, i.e. a reserve other than an Aboriginal reserve. Other plans and documents in evidence describe this reserve as a reserve for water and conservation known as Ooradidgee Rockhole. It is obvious to me that, when the metes and bounds description is read in the context of the description that follows the description in question here, the draftsman did not intend to include this reserve or any part of it in the land claimed. If there is any doubt about the matter it is readily resolved by recourse to the map attached to the application which plainly shows the reserve as excluded from the land claimed.

7. The fourth criticism of the metes and bounds description is of the word "westerly". Plainly it cannot be correct to describe the line from point 25 as travelling westerly along the boundary of McLaren Creek Pastoral Lease to that boundary's intersection with the westernmost boundary of Kurundi Pastoral Lease. It can only be read in the context of the metes and bounds description that follows the impugned description as if "westerly" means "easterly". To read the word "westerly" other than as an obvious mistake for "easterly" would make nonsense of the description of the land which precedes and follows it. Hence one must read the word "westerly" as meaning "easterly".

8. That takes one to point 26. The metes and bounds description then travels north from point 26 to point 27
   
   

- east to 28

- north to 29

- east "along the boundary of Kurundi Pastoral Lease to its junction with the western boundary of Epenarra Pastoral Lease" to 30 - north to 31 then

- east "along the boundary of Epenarra Pastoral Lease to the point of commencement", namely, point 1.

1. That is how I read the metes and bounds description of the land in the application. One question remains. It concerns an area of 269km2 to the south of the township of Tennant Creek near points 20, 21 and 22 on my sketch where it is shown as having that area. There may be some question arising from the metes and bounds description as to whether this 269km2 area is or is not included in that description. But, I do not think that there is any ambiguity in the description, so that the metes and bounds description does, in my opinion, include this area. However, as the application itself says: "The land claimed is shown on the attached map." That map shows plainly that the area of 269km2 is excluded from the claim. There is, therefore, a conflict between the metes and bounds description in the application and the map attached to it.

2. The conflict is not resolved by recourse to principles of interpretation such as the contra proferentem rule or the principle falsa demonstratio non nocet cum de corpore constat; the latter was the subject of argument before us. The map attached to the application is the better guide to the identification of the land claimed. It is, as the application itself says, the map which shows the land claimed. There are various considerations among which it is sufficient to refer to those surrounding the misreading of what I have called the finger of land projecting easterly from the northern boundary of part of the Tennant Creek pastoral property, to make it plain that the draftsman of the metes and bounds description simply attempted (rather clumsily and inaccurately) to put into words a plotting of the boundaries ascertained from the map, but failed to use appropriate words to exclude, not only the 269km#, but also the other reserve which has been mentioned. That map is a copy of the relevant portion of the Pastoral Map which describes the 269km# as a reserve other than an Aboriginal Reserve. The draftsman of the map attached to the application obviously sought to exclude from the area of land claimed all land shaded in yellow and depicted on the Pastoral Map as Reserves other than Aboriginal Reserves. It is also obvious that the draftsman of the map attached to the application confined the land claimed to unalienated Crown land which is the only relevant land capable of being claimed pursuant to an application under s.50 of the Act. I mention again that the description of these vast areas of land in Pastoral Leases is not by metes and bounds descriptions, but by reference to plans included in the leases.

3. Of course, some may prefer to say in thses circumstances that it is impossible to choose between the two apparently conflicting descriptions of land (i.e. the conflict between the metes and bounds description and the delineation in the map attached to the application) and that the claim is therefore void for uncertainty. A view of that kind does not attract me, nor is it tenable. If it is reasonably possible to discern whether the 269km2 is or is not included in the claim I shall do so; and I am satisfied that the map is a clearer and more reliable exposition of the intent of the second respondents than the metes and bounds description. It follows that the 269km2 is not included in the land claimed by the application of 9 November 1978.

4. It is not clear whether the inclusion of the 269km# as land claimed in the application was a question raised before the Commissioner or, if it was raised, whether much reliance was placed upon it by any interested party. Although the point was raised before the trial Judge, it was discussed between his Honour and counsel in circumstances and terms which may have left his Honour in doubt (a perusal of the transcript of argument certainly leaves me in doubt) as to whether the second respondents were asserting that the 269km2 was included in or excluded from the claim. His Honour concluded that the 269km2 of land was not included in the application, but did not think that it was appropriate to make a declaration to that effect. Perhaps counsel did not press his Honour to make such a declaration, but counsel for the appellant certainly pressed us to make one. As the 269km2 is not included in the original application the orders of the trial Judge should be varied to make this clear. In the result, I would declare, in appeal 558 of 1986 (the Judicial Review Act matter), that the land the subject of the application of 9 November 1978 does not include the area of 269km2. Appeal 558 of 1986 should be allowed to that extent; otherwise it should be dismissed. Appeal 557 of 1986 should be dismissed.

5. The appellant has succeeded only on his argument in relation to the 269km2. He failed on what were the principal issues argued on the appeal. The appropriate order for costs is that the appellant should pay one-half of the second respondent's costs of the two appeals and of the trial of both applications. The first respondent is the Commissioner who submitted to the Court's orders save as to costs. No order for costs should be made for or against the Commissioner in respect of the appeals or of the trial.
   

CENTRAL LAND COUNCIL (INCORPORATED UNDER THE ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) ACT 1976)

--------------------------------------------------

Telephone: 523800 75 HARTLEY STREET, 523978 ALICE SPRINGS. N.T. 5750 523676 P.O. BOX 1960

Our Ref:

Your Ref:

NOTIFICATION OF CLAIM UNDER ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) ACT, 1976

TITLE OF CLAIM: The Warramunga/Alyawarra claim to an area between Dalmore Downs and Tennant Creek.

DESCRIPTION OF LAND CLAIMED:

An area of Unalienated Crown Land in the Tennant Creek area. The claim area is bounded by a line commencing at the easternmost point of the northern boundary of Epenarra Pastoral Lease then due north to the southern boundary of Dalmore Downs Pastoral Lease, then west and then north to the junction of the western boundary of Dalmore Downs Pastoral Lease, with the southernmost boundary of Rockhampton Downs, then west, then north and then west along the boundary of Rockhampton Downs Pastoral Lease, and the southern boundary of Burnchilly Pastoral Lease to the eastern boundary of Phillip Creek Pastoral Lease then following the boundary of Phillip Creek Pastoral Lease, in a southerly, then westerly, then southerly, then easterly, then northerly, then north easterly, then easterly, then southerly, then westerly, then northerly and then westerly direction to the easternmost point of the northernmost boundary of Tennant Creek Pastoral, then along the boundary of Tennant Creek Pastoral Lease, southerly, then westerly, then southerly, then easterly and then southerly to the westernmost point on the northernmost boundary of McLaren Creek Pastoral Lease. Then easterly, then southerly and then westerly along the boundary of McLaren Creek Pastoral Lease to that boundary's intersection with the westernmost boundary of Kurundi Pastoral Lease. Then northerly, then easterly, then northerly, then easterly along the boundary of Kurundi Pastoral Lease to its junction with the western boundary of Epenarra Pastoral Lease. Then northerly and then easterly along the boundary of Epenarra Pastoral Lease to the point of commencement, but excluding areas within the area so enclosed defined as a town under the terms of the Aboriginal Land Rights (Northern Territory) Act, 1976, Section 3 (1).

The land claimed is shown on the attached map.

Traditional Aboriginal Owners.

The claim is made jointly on the behalf of several Warramunga Clans:

Claimants include;

Murphy Japanangka

Dick Riley Japanangka

Vince Japanangka

Nelson Japanangka

Myrtle Napanangka

Carol Napangardi Johnny Japangardi

Johanna Napangardi Robert Japangardi

Karen Napangardi Terry Japangardi

Mildred Napangardi Bruce Japangardi

Christa Napangardi Ronny Japangardi

Phyllis Napangardi Pat Japangardi

Alba Napangardi Mick Japangardi

Jeffrey Japangardi Kevin Japangardi Tommy Japangardi Archie Japangardi Jeffery Japangardi Teddy Japangardi

Albert Japiljarri

Alfie Jungarrayi

Joe Jungarrayi

Dick Flash Japiljarri

PERSONS AND ORGANIZATIONS LIKELY TO BE AFFECTED BY THE CLAIM:

The Central Land Council is currently investigating the extent of estates, interests and mining interests held in the area.

ADDRESS FOR NOTICES AND CORRESPONDENCE.

This claim is lodged by:

Central Land Council,

P.O. Box 1960,

ALICE SPRINGS. N.T. 5750

Telephone : 523800

All notices, correspondence or queries may be addressed to the Secretary, Central Land Council of the above address.

Tim Morris. 9th November 1978

TIM MORRIS.

Solicitor to Central Land Council.

(MAP OMITTED)

JUDGE2

These two appeals are brought from orders of Beaumont J. made on 11 November 1986 in which he dismissed applications by the Attorney-General for the Northern Territory of Australia for writs of prohibition and certiorari and for an order of review under the Administrative Lecisions Judicial Review Act 1977. The two applications raised much the same questions. They arose out of the hearing by the Aboriginal Land Commissioner of a claim made pursuant to the Aboriginal Land Rights (Northern Territory) Act 1976 by the Central Land Council. The claim is known as the Warumungu Land Claim. A reference to the history of the claim is to be found in the judgment of this Court in The Honourable Michael David Andrew Maurice, Aboriginal Land Commissioner, and Ors.; Ex parte: The Attorney-General for the Northern Territory of Australia (No. G119 of 1987) and The Attorney-General for the Northern Territory of Australia v. The Honourable Michael David Andrew Maurice, Aboriginal Land Commissioner, and Anor. (No. G120 of 1987) (13 April 1987).

1. The applications before his Honour and the appeals brought from his orders concern the form of the original notification of claim which was lodged on 9 November 1978. The claim was prepared by the then solicitor for the Central Land Council. The primary submission made by counsel for the Attorney-General is that the description of the land claimed is so uncertain that the land which is sought by the Land Council cannot be properly identified with the consequence that the claim is of no effect. Counsel's second submission is that, assuming the description to be sufficiently certain, it should be read so as to exclude from the claim an area of 269 square kilometres which has been set aside as a reserve for mining purposes.

2. The notification of claim is headed with the name of the Central Land Council. There then appear the words, "NOTIFICATION OF CLAIM UNDER ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) ACT 1976". Underneath these words is a further heading, "TITLE OF CLAIM", beside which are written the words, "The Warramunga/Alyawarra (sic) claim to an area between Dalmore Downs and Tennant Creek". There follows a description of the land claimed which begins with the words, "An area of Unalienated Crown Land in the Tennant Creek area". The description then continues with a detailed plot of the boundaries of the claim area expressed in conventional conveyancing language. I do not find it necessary to set out the entirety of the description but it is lengthy and complex. It begins by saying that the claim area "is bounded by a line commencing at the eastermost point of the northern boundary of Epenarra Pastoral Lease then due north to the southern boundary of Dalmore Downs Pastoral Lease . . .". It concludes with the words, "Then northerly and then easterly along the boundary of Epenarra Pastoral Lease to the point of commencement, . . .".

3. After the description is a statement that "The land claimed is shown on the attached map". The map is a copy of part of a pastoral map in common use in the Territory. The land claimed is marked in blue hatching on the map. Except in the case of one boundary, the land claimed abuts pastoral leases or the town area of Tennant Creek. The Epenarra and Dalmore Downs Pastoral Leases referred to in the description and also a number of other pastoral leases are shown on the map.

4. The claim concludes with an indication of the persons on whose behalf it is made. A number of claimants are listed.

5. Counsel's primary submission is based on the uncontested assertion that in four places the detailed description of the land claimed, if followed literally, would render the description either meaningless or so uncertain as not to provide a sufficient indication of the land which is the subject of the claim. The four matters relied upon are as follows:-
   
   

(a) The first has its origin in the fact that the Tennant Creek Pastoral Lease has two distinct sections which may be described as the north-eastern section and the south-western section. The description refers to a point as "the easternmost point of the northernmost boundary of Tennant Creek pastoral". This point, if the description is read literally, is, in effect, the north-eastern corner of the north-eastern section. It seems clear, however, that the draftsman intended to refer to the north-eastern corner of the south-western section. As mentioned, the map attached to the application was taken from a pastoral map of the Northern Territory. It shows the boundaries and names of all pastoral leases. But the name, "Tennant Creek", does not appear on the north-eastern section of the Tennant Creek Pastoral Lease. One could mistakenly conclude that the north-eastern section was part of the Phillip Creek Pastoral Lease which abuts the north-eastern section of the Tennant Creek Pastoral Lease to the west. That this is what the draftsman did is apparent from the fact that the plot of the boundaries of the area claimed takes one to the northern portion of the south-western section of the Lease without any mention of the name "Tennant Creek" in the description before that point is reached. But, if as should be done, the description is read as if it refers to the north-eastern corner of the south-western section, there remains a difficulty. The eastern boundary of the south-western section has an irregular shape. The north-eastern corner of it is in the shape of a comparatively narrow corridor which was described by counsel for the Attorney-General as a "panhandle". Without going into detail, it is clear that the point referred to in the description cannot be the north-eastern corner of the south-western section: it is rather the third most north-easterly corner which is at the westerly end of the southern side of the corridor or pan handle. The position is illustrated on the copy plan annexed. The point which is in fact the north easterly corner of the south-western section has been marked "A"; the point to which one is led if one follows the description has been marked "B". The pastoral map of the Northern Territory earlier referred to shows the positions of aerodromes or landing fields. These are designated by drawings of an aircraft. There is apparently an airfield in the corridor in question. The drawing of the aeroplane almost covers it and thus obscures the nature of the boundaries of the south-western section of the Tennant Creek Pastoral Lease at that point. This probably explains the error which has been made.

(b) The description takes the boundary of the land claimed along the easterly boundary of the south-western section of the Tennant Creek Pastoral Lease to a point where that boundary intersects with the most northerly boundary of the McLaren Creek Pastoral Lease. The difficulty is that lying between the Tennant Creek Pastoral Lease and the McLaren Creek Pastoral Lease at this point is the Stuart Highway and a stock route which together are about one mile in width. Nothing in the description indicates whether the land claimed is intended to take in the stock route or to exclude it.

(c) The pastoral map earlier referred to shows reserves of various kinds. These are either edged yellow or shaded yellow. One such reserve is on one of the eastern boundaries of the McLaren Creek Pastoral Lease. The description in the application shows that it was intended that the land claimed should abut this boundary of the McLaren Creek Pastoral Lease but takes no account of the reserve. It describes the boundary of the land claimed as running continuously in a southerly direction along the relevant easterly boundary of the McLaren Creek Pastoral Lease.

(d) The description indicates that the land claimed is to abut the McLaren Creek Pastoral Lease until it reaches Kurundi Pastoral Lease. At the end of the eastern boundary of the McLaren Creek Pastoral Lease mentioned in para. (c) the boundary runs in an easterly direction until it reaches the Kurundi Pastoral Lease. However, the description refers to the boundary of the land claimed as running "westerly along the boundary of McLaren Creek Pastoral Lease to that boundary's intersection with the westernmost boundary of Kurundi Pastoral Lease". This is plainly an error. The draftsman should have said "easterly", not "westerly".

1. In my opinion the misdescriptions and omissions which exist in the application do not make it so uncertain as to warrant the conclusion that the land claimed cannot be identified. The written portion of the application refers to the map attached to it and says that the land claimed is shown on that map. In my opinion it would be quite wrong not to give the plan a weight equal to that of the description in determining what land is claimed. The area of the claim is hatched in blue ink on the map and plainly shows an intention to claim all the unalienated Crown land (other than the area of 269 square kilometres earlier mentioned and the reserve referred to in para. (c) above) abutting the boundaries of the various pastoral leases which are referred to in the written portion of the application and shown on the map. The only part of the land claimed which does not abut a pastoral lease is its most easterly boundary which runs from the north-eastern corner of the Epenarra Pastoral Lease in a northerly direction to the southern boundary of the Dalmore Downs Pastoral Lease.

2. It is my opinion that that clear indication of intention should be given effect to. If that is done, all the difficulties relied upon by counsel for the Attorney-General are overcome. One should understand the application as referring to the most north-easterly corner of the south-western section of the Tennant Creek Pastoral Lease and not to either the north-eastern section of that Pastoral Lease or the third most north-easterly corner of it. The fact that the description fails to describe the boundaries of the corridor or panhandle does not vitiate it or make it uncertain. Likewise such difficulty as may be thought to exist in relation to the boundary of the claim crossing the Highway and the stock route is overcome as is the difficulty concerning the reserve on the easterly boundary of the McLaren Creek Pastoral Lease. Finally the draftsman plainly made a mistake when he used the word "westerly" rather than "easterly" to describe the intersection of the boundary with the Kurundi Pastoral Lease.

3. In the course of the argument reference was made to a number of cases and to the maxim. Falsa demonstratio non nocet cum de corpore constat. I have considered these, but I have not found them of any ultimate assistance in resolving this case. As I have said, the question is one of intention to be gathered from a consideration of the application read as a whole. I would add that this case does not concern a grant or conveyance of land. It concerns a claim for land which may be refused or acceded to in whole or in part. Obviously it is important for claimants to be as precise as possible. Directions given for the guidance of claimants make this point. But the Act itself does not require any particular form of words and, in the context of legislation of this kind, the Court ought not to be strict in its interpretation of the delineation of a claim provided that the claimant's intention is made reasonably clear.

4. For these reasons, I would reject the appellant's primary submission.

5. His secondary submission concerns the area of 269 square kilometres which abuts one of the eastern boundaries of the south-western section of the Tennant Creek Pastoral Lease. Notwithstanding conclusions to the contrary reached by the learned primary Judge, I am of opinion that the written description of the land claimed, when read literally, discloses an intention to include this area in the claim. The description takes one south along the relevant eastern boundary of the Tennant Creek Pastoral Lease which abuts the western boundary of the reserve. However, a consideration of the map shows that the reserve is not hatched. In those circumstances, notwithstanding the conflict between the description and the map, I think the intention was not to claim the land within the reserve. His Honour reached the same conclusion, but for reasons given by him thought it inappropriate to make a declaration about the matter. With respect, I do not share this view. I think that in the application for judicial review it would have been appropriate to make a declaration to the effect that the reserve of 269 square kilometres abutting the eastern boundary of the south-western section of the Tennant Creek Pastoral Lease does not form part of the claim.

6. In the result I would dismiss the appeal brought against his Honour's refusal to grant writs of prohibition and certiorari. I would allow in part the appeal brought from his Honour's refusal to grant relief under the Judicial Review Act in that I would make a declaration concerning the reserve of 269 square kilometres in terms of that indicated above. I would otherwise dismiss that appeal. I agree in the order for costs proposed by Lockhart J.
   
   

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JUDGE3

I agree with the orders and declaration proposed by Lockhart J., and with his reasons.