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)

FEDERAL COURT OF AUSTRALIA

Re: THE ATTORNEY GENERAL FOR THE NORTHERN TERRITORY OF AUSTRALIA
And: THE HONOURABLE GERARD LESLIE HAND, MINISTER FOR ABORIGINAL AFFAIRS;
THE HONOURABLE LIONEL FROST BOWEN, ATTORNEY GENERAL FOR THE COMMONWEALTH
OF AUSTRALIA; ROBERT AUBREY BRADSHAW, THE REGISTRAR GENERAL FOR THE
NORTHERN TERRITORY and JACK COOK JANGALA AND FRANK JAPANANGKA TJARAMA
AND OTHERS AS CLAIMANTS IN THE MOUNT ALLAN LAND CLAIM
No. NSW G1330 of 1988
FED No. 202
Aboriginal Land Rights - Administrative Law - Practice and Procedure
23 FCR 536

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart J.(1)

CATCHWORDS

Aboriginal Land Rights- Land Grant - whether interstation roads are roads over which the public has a right of way - dedication of public road at common law - dedication by the Crown - whether evidence of maps, user, public expenditure proves dedication - applicability of English decisions to Northern Territory conditions.

Administrative Law - Whether decision authorised by enactment - admissibility of material not before decision maker at the time of the decision - denial of natural justice - failure to wait for possible further written submissions - whether any material fact unknown to Minister at time of decision.

Practice and Procedure - Further written submissions after the close of hearing.

Aboriginal Land Rights (Northern Territory) Act 1976: s. 11.

Administrative Decisions (Judicial Review) Act 1977: s. 5.

HEARING

SYDNEY
10:5:1989

Counsel for the Applicant: Sir Maurice Byers Q.C.,

Mr. J.D. Barrett

Solicitors for the Applicant: Freehill Hollingdale & Page

Counsel for First and Second Respondent: Mr. G.

Downes Q.C.

Ms. R.M. Henderson

Solicitors for First and Second Respondent: Australian

Government Solicitor

Solicitors for Third Respondent: Michie, Shehadie & Co.

Counsel for Fourth Respondent: Mr. T.F. Robertson

Solicitors for Fourth Respondent: David Holt Avery

ORDER

The application be dismissed.

The applicant pay the costs of the respondents of the proceeding.

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

DECISION

The Attorney General for the Northern Territory of Australia, the applicant, seeks to prevent the grant of an estate in fee simple to the Yalpirakinu Aboriginal Land Trust in certain land in the Northern Territory within the Mount Allan Land Claim which the applicant claims are public roads, and, therefore, by operation of sub-s. 11(3) of the Aboriginal Land Rights (Northern Territory) Act 1976 ("the Act"), cannot be included in the grant.

2. A brief statement of the history of the matter is necessary. On 2 November 1979 the Central Land Council lodged an application under the Act on behalf of some 42 Aboriginal people claiming to have a traditional land claim to Mount Allan Cattle Station and to certain unalienated Crown land within its boundaries being a stock route and stock reserve. Mount Allan station is about 240 kilometres north-west of Alice Springs. It is a rectangular block with an area of about 2332 square kilometres - excluding certain stock reserves and stock routes. It comprises Portions 313 and 405 and is held under pastoral lease No. 803. On the west it is bounded by Yuendumu Aboriginal land; and on its other boundaries it adjoins pastoral leases: Mount Denison and Coniston to the north, and Napperby and Central Mount Wedge to the east and south. Mount Allan station is run by Aboriginal people. In August 1982 the land claim was heard by the then Aboriginal Land Commissioner (Kearney J.) who on 4 March 1985 reported to the then Minister for Aboriginal Affairs, the Honourable Clyde Holding, (the present Minister being the Honourable Gerard Leslie Hand, the first respondent) and recommended the grant of the land including the stock route and stock reserve.

3. The applicant argued before the Commissioner that roads involved in the land the subject of the application were public roads and therefore incapable of inclusion in any land grant. Two of the seven roads (the Tanami Highway and road No. 2, an access road, 29 kilometres long from the Tanami Highway to the Mount Allan homestead) were found by the Commissioner to be public roads. It was common ground before me that Road No. 2 corresponds with Road No. 2 on the Master map in evidence before me and that it, and the Tanami Highway could not be included in the Crown grant. For ease of reference a copy of the relevant portion of the master map is attached as appendix A. Roads numbered 3, 4, 5(a) and 9 as depicted on Appendix 2 to the Commissioner's report correspond broadly with roads bearing the same numbers on the Master Map. However, the path followed by each of those roads differs as between each map to varying degrees. Road 5 on Appendix 2 is shown as roads 5 and 13 on the Master map, again with differing depictions of their paths. Roads 10, 11 and 12 appear on the master plan but not on Appendix 2. Road 14 on the Master map is shown as a broken line as it is (though without a number) on Appendix 2, again with differences in its path. The Commissioner found that none of the roads within the claim area shown on Appendix 2, (except the Tanami Highway and the access road to Mount Allan homestead (road 2)) were roads over which the public has a right of way.

4. On 17 June 1985 the Minister decided that all the land recommended should be granted. Proceedings were then brought in this Court by the applicant (matter No. G 305 of 1986) against the then Minister for Aboriginal Affairs seeking the issue of writs of prohibition and certiorari directed to preventing the inclusion of any land comprising the stock route and stock reserve in the land grant of the Mount Allan land. On 26 November 1987 a Full Court of this Court gave judgment in Re Warumungu Land Claim; Ex parte Attorney-General (NT) (1987) 77 ALR 27 and held that the exclusion by sub-s. 11(3) of the Act from land grants of roads over which the public has a right of way applies to the general roadway system of the Northern Territory, but not to the network of stock routes. The High Court refused special leave to appeal from that decision. It appears to have been accepted by the parties to proceeding G305 of 1986 that in the light of that decision this Court should dismiss the applicant's motion to amend its application to include the issue of interstation roads. On 15 September 1988 the application was dismissed.

5. By letter dated 23 September 1988 from the Northern Territory Government to the first respondent the former made certain submissions relating to the interstation roads within the Mount Allan station. By letter dated 20 October 1988 from the first respondent to the Attorney General for the Northern Territory, the applicant, the first respondent said that he had considered those submissions, was not persuaded that the interstation roads should be excluded from the grant and that "the Governor-General has decided to grant the land and the deed of grant has been delivered to the Yalpirakinu Aboriginal Land Trust".

6. The applicant in these proceedings, which were commenced on 27 October 1988, seeks an order of review (a) of the decision of the first respondent communicated to the applicant by the letter of 20 October 1988 and (b) of what is described in the application as the conduct of the third respondent, the Registrar General for the Northern Territory, whereby he proposes to register the proposed deed of grant pursuant to the Real Property Act (NT) or the Act. The proceedings were brought under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act"). Orders for prohibition and certiorari, pursuant to the jurisdiction conferred on this Court by s. 39B of the Judiciary Act 1901, are also sought by the applicant against the first and second respondents designed to achieve the same result, namely, to set aside the relevant decisions of the first respondent and to prevent the registration of the grant.

7. Central to the case is sub-s. 11(3) of the Act which excludes land from a grant to an Aboriginal land trust established under the Act if it is "land on which there is a road over which the public has a right of way".

8. The primary submissions of the applicant are first, that the evidence before the Court establishes that the roads with which this case are concerned are public roads and by virtue of sub-s. 11(3) of the Act are incapable of inclusion in the grant; and secondthat natural justice was denied the applicant because no opportunity was given to him to make submissions to the first respondent about whether the relevant stock route and reserve should be included in the grant.
The Admissibility of Evidence of Public Roads

9. The applicant sought to rely on a number of affidavits in support of his claim that the public has a right of way over roads within the Mount Allan Land Claim. These affidavits deal with various matters including the use of the roads by persons for various purposes over some years, maintenance of the roads by the Northern Territory government on particular occasions and the expenditure of public funds for that purpose.

10. The respondents objected to the affidavits being read. The basis of that objection was that in a review of an administrative decision under the Judicial Review Act only the material before the decision-maker is relevant to a determination whether the decision was valid in law. As the objection went to the essential issues in the case and no parties suggested prejudice would be sustained if they were read subject to objection and relevance, I formed the view that the sensible course was to allow the affidavits to be read subject to those objections. It is now necessary to rule on the admissibility of the affidavits. Much of the material in the affidavits, though not all, was before the first respondent when he made the decisions impugned in this case in one form or another. It is this additional material which is objected to.

11. The admissibility of evidence not before the decision maker depends upon the grounds of review on which the applicant relies before the Court. In the case of some grounds of review (for example, if the decision maker failed to take into account a relevant consideration) (para. 5(2)(b) of the Judicial Review Act) or took into account an irrelevant consideration (para. 5(2)(a)) it is difficult to see the relevance of material not before the decision maker. Other grounds of review (for example, unreasonable exercise of the power (para. 5(2)(g)) will generally, lead to the evidence consisting primarily of the material before the decision maker.

12. Where the ground relied upon is error of law (para. 5(1)(f)) the trend of judicial opinion is that the evidence before the Court is confined to the material before the decision maker: The Attorney-General for the Northern Territory of Australia v Honourable Gerard Leslie Hand, Minister for Aboriginal Affairs (NSW G 235 of 1988) an unreported decision of Wilcox J., 3 August 1988 at 13; Ruangrong v Minister for Immigration and Ethnic Affairs,, unreported decision of Davies J., 29 March 1988 at p 7.

13. The primary ground of attack upon the first respondent's decision in this case is "that the decision was not authorised by the enactment in pursuance of which it was purported to be made": para. 5(1)(d) of the Judicial Review Act.

14. The determination of whether an action taken falls within the power conferred will often centre on issues of statutory interpretation. The Court's task in such a case is essentially that of resolving a legal question, and, where that is the extent of the issue, there will ordinarily be no necessity for adducing material which was not before the decision-maker. Where however there is a question of mixed fact and law, i.e. where there is an issue both of statutory interpretation and the requisite factual situation which will bring the statute into operation, there may be a need to adduce additional material. That evidence would be directed to establishing that on the true facts of the case, regardless of the material that was actually before the decision-maker the decision made was one which could not have been lawfully made. In this case the applicants seek to establish that the true fact of the matter is that certain roads within the relevant area were in fact public roads within the meaning of sub-s. 11(3) and could not therefore lawfully be included within a grant of land under the Act. In my opinion it is open to the applicant to establish that ground by adducing evidence which was not before the first respondent when he made his decision.

15. The applicant also relies also upon s. 39B of the Judiciary Act 1903 to support the issue of writs of prohibition and certiorari where evidence of this kind can, in my opinion, be led.

16. I agree with the analysis of this question of the admissibility of evidence in judicial review proceedings by Wilcox J. in Attorney-General for the Northern Territory v Minister for Aboriginal Affairs subject to one reservation, namely, whether upon a challenge under the Judicial Review Act to a decision on the ground of error of law the evidence is confined to the material before the decision maker. It is not necessary to decide this question in this case so I prefer to leave it open.

17. I therefore admit the evidence to which objection was taken on the issue presented by para. 5(1)(d) of the Judicial Review Act, which is the issue which I propose to examine.
The Principles to be Applied in Determining Whether There Exists a Road Over Which the Public has a Right of Way

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.

19. Part IV of the Control of Roads Act (NT) provides for the opening of roads within the Northern Territory by the Minister. None of the roads here have been formally dedicated to the public or proclaimed as roads over which the public has a right of way. It is common ground that none of the relevant roads in this case were opened in accordance with Part IV. Counsel for the applicant argued that the existence of this Act does not preclude the opening of a public road in accordance with the rules developed by the common law. The Control of Roads Act (NT) does not expressly or, in my opinion, by necessary implication preclude the opening of public roads in accordance with the common law rules and I agree with the conclusion reached by Wilcox J. in Attorney-General for the Northern Territory v Minister for Aboriginal Affairs at p 17 that "the common law methods of opening public roads remain available".

20. Under the common law it has always been possible for a landowner to create a public road. In the Permanent Trustee Case Windeyer J. discussing the nature of a highway in the common law sense said at p 420:

"It is the public right to use the land as a way,
rather 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."

21. It is open to question whether land which is owned by the Crown may be dedicated as a public road by dedication alone without acceptance by the public. Wilcox J. considered this question in Attorney-General for the Northern Territory v Minister for Aboriginal Affairs at 18-21 and did not find it necessary to decide it. As the evidence does not establish to my satisfaction that the roads in question in the present case were dedicated by the Crown it is not necessary for me to decide the question. I should say, however, that as at present advised I would follow the view of Windeyer J. in the Permanent Trustee Case that public acceptance is essential to achieve dedication of land as a public road.

22. There was some argument on the question whether the consent of a lessee is required for the dedication by the owner of the freehold of land as a public road. This question was also considered by Wilcox J. in Attorney-General for the Northern Territory v Minister for Aboriginal Affairs at 22-25 and his Honour concluded at 24 that "the person or persons holding all of the existing legal interests in the relevant plan must consent to the dedication for it to be effective" 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 agree with the view of Wilcox J. but do not propose to consider the question further in view of the opinion I have formed that the evidence does not establish the dedication of the relevant roads by the Crown to the public.

23. Whether the owner of land has dedicated it as a public road is a question to be determined on the facts of each case. The declaration of an intention to dedicate, delineation on maps or plans of roads set apart for public use, user by the public, the expenditure of money by public bodies in forming or maintaining the land as a road are some of the matters which may, when considered with all the relevant evidence, amount to an unequivocal indication of the intention of the owner of the land to dedicate it to the public as a road.
The Facts

24. The roads with which this case is concerned are numbered for convenience in this case on a map published by the authority of the Minister for National Development and Energy of the Australian Government in or about 1979 and which was marked as Exhibit 4 and is described as the master map (appendix A). It delineates roads which have been for convenience numbered 2, 3, 4, 5, 5a, 9, 10, 11, 12, 13 and 14. So that the location of the land in question may be readily understood it is necessary to add to what appears on the map itself, the Tanami Road or Highway continues from the plan as depicted in the annexure in a south-easterly direction towards Alice Springs to the far right of the map annexed. Travelling in a north-south direction is the Stuart Highway with Alice Springs to the south. The town of Napperby is to the east of the map annexed and is reached by a road or track which joins road number 13.

25. The evidence relied on by counsel for the applicant consists primarily of various maps which were in evidence and which were tendered as evidence of dedication. Reliance was also placed upon other evidence including the evidence by affidavit and oral evidence of various witnesses as to the use of the various roads over the years and the expenditure of public funds upon the maintenance of some of them. It is not necessary to refer to the evidence with respect to road 2 because it is proposed to exclude it from the grant.

26. A number of maps were produced as exhibits to the affidavit of Peter John Wells, sworn 15 November 1988. It is convenient to refer to the maps by their exhibit reference, namely, exhibits PW1 to 10 and they are as follows:-

(a) 1968 Pastoral Map of the Northern Territory numbered
CP2941/D: "PW1";
(b) 1969 Pastoral Map of the Northern Territory produced
by the Division of National Mapping: "PW2";
(c) 1:500,000 scale map of Pastoral Leases in the Alice
Springs area drawn by the Lands and Survey Branch,
May 1969: "PW3";
(d) National Topographic Map Series Sheet: Napperby
produced by the Division of National Mapping, dated
1973: "PW4";
(e) 1973 Pastoral Map of the Northern Territory produced
by the Division of National Mapping: "PW5";
(f) 1976 Pastoral Map of the Northern Territory produced
by the Division of National Mapping numbered
NMP/76/193: "PW6";
(g) National Topographic Map Series Sheet: Napperby
produced by the Division of National Mapping dated
1981: "PW7";
(h) Survey and Mapping Division Plan CP4539 entitled
"Mount Allan Land Claim" dated 25 March 1982: "PW8";
(i) 1984 Pastoral Map of the Northern Territory prepared
by the Department of Lands, Survey and Mapping
Division: "PW9";
(j) Plan CP4539B entitled "Roads on Mount Allan" dated
21 September 1988: "PW10".

27. For convenience, I shall use the word "map" to describe a map or plan. These maps are held by the Departments of Lands and Housing of the Northern Territory Government, members of the public have free access to them during normal office hours and any person who asks to see them will be shown them on request free of charge. Members of the public may purchase reproductions of the maps from the Department of Lands and Housing of the Northern Territory.

28. Maps PW8 and PW10 were prepared for the purposes of legal proceedings.

29. Most of the evidence relating to the use of the roads in question was given by affidavit. Some witnesses also gave oral evidence.

30. The witnesses who swore affidavits were:

. Leo Francis Martin, a pastoralist, who has lived on
Mount Denison Station for 40 years, Mount Denison being to
the north-west of road 3;
. David John Martin, a pastoralist, also of Mount Denison
Station and the son of Leo Francis Martin, who has lived on
Mount Denison Station all his life, namely, some 30 years;
. Dianne Stuart Martin of Mount Denison Station, a school
teacher;
. Maxwell Lines of Coniston Station, a pastoralist, who
has lived on Coniston Station for the last 12 years.
Coniston Station is to the north-east of Mount Allan Station;
. John Charles Taylor of Mount Allan Station who has
managed the Yulumu Community Store, the Yulumu Museum,
tourist promotions, town maintenance and general community
activities at Mount Allan Station over the last three years
or so and who is employed by the Yulumu Community Store and
has lived at Mount Allan Station during that time;
. Paddy Stewart Japaljarri who has lived at Yuendumu for
20 years. Yuendumu is to the west of the Mount Allan
Station;
. Samson Martin Japaljarri of Wakurlpa Outstation and who
has lived at Yuendumu for the last 20 years;
. Keith Raymond Brumby who has been employed as a Stock
Inspector by the Department of Industries and Fisheries since
1978 and who lives at Alice Springs;
. John Michael Lewis who has been employed by the
Department of Transport and Works since 1963 initially as a
water cart driver, in 1965 as a grader driver, and since 1981
as the Maintenance Manager of the Roads Division of the
Department;
. Roy James Chisholm of Napperby Station, pastoralist.
Napperby Station has been owned by Mr. Chisholm's family
since 1948 and he has been associated with it since he was
born in 1955. Napperby Station is to the east of the land
included in the Mount Allan Land Claim;
. Sandra June Gordon of the Yuendumu Health Centre, a
Registered Nurse who has been Sister in charge of the
Yuendumu Health Centre since January 1988;
. Robert William Waudby, a pastoralist of Central Mount
Wedge Station, who has lived there for the whole of his life,
namely, 35 years, apart from nine years when he was at
school. Mount Wedge Station is south of the land included in
the Mount Allan Land Claim;
. Peter John Wells of Darwin, the Surveyor General for the
Northern Territory for the past 21 years. His affidavit
evidence was to identify the maps and plans held by the
Department of Lands and Housing numbered PW1 to 10. He gave
oral evidence as to the use of road numbered 13.

Findings

31. I see no purpose in stating my findings road by road. I have carefully considered all the evidence and have been assisted by schedules prepared by counsel for the parties which contain helpful references to maps, the affidavits and, where relevant, the oral evidence. These schedules deal with each road in turn from road 3 to road 14.

32. I turn first to the maps. As maps PW8 and PW10 were produced for the purposes of legal proceedings they are of limited assistance on the issue whether there was a dedication of the roads in question. Where the roads appear on the various maps they are depicted merely by lines (with various insignia so as to indicate, for example, a secondary road or a vehicle track, an unimproved road or a road with loose surface in dry weather), and nothing is said as to the width or precise position of the road and no means were pointed to in the evidence whereby the position could be ascertained with any accuracy save by physical observation of the road itself as it traverses the land.

33. Some roads are shown in a particular position or travelling a particular route on one map yet in a different position or traversing a different route, albeit sometimes only slightly, on other maps. Some roads appear on some maps but not on others, although this is explained, but only in part, by the fact that the roads may have come into existence after the date on which a particular map was produced.

34. The maps vary in their description of the roads. For example, road 3 is described on PW1 and PW2 as a track, on map PW3 as a secondary road, on map PW4 as a road, loose surface dry weather, on maps PW5 and PW6 as a secondary road or track and on map PW7 as a vehicle track. It is shown on maps PW8 and 10 but they were compiled for the purpose of legal proceedings. Road 14 is described on map PW4 as a road, loose surface dry weather (except western end) and on maps PW5 and 6 as a secondary road or track (except western end) and on map PW7 as a minor road. Road 10 is described on map PW4 as a road unimproved and on map PW7 as a vehicle track (restricted use). Road 5 is described on map PW4 as a road, loose surface, dry weather and on map PW7 as a vehicle track (use restricted).

35. In addition to some inconsistencies between the various maps with respect to the depiction of the roads it is plain that roads in the Northern Territory change position over the years. Road 14 is a road which became impassable as a main access road to Mount Allan station and was allowed to deteriorate. It was replaced in the early 1980s by a new graded road which had never been used before and never graded before; nor had it been marked on any previous map. This became road 2 which, as I said earlier, by agreement between the parties is treated as a public road. It is also important to bear in mind the vastness of the area of the Northern Territory, the shifts of land over time due to natural forces and to human activities, and the fact that it is notorious that when people use a road and confront an obstacle they may, for example, go round it and thus may alter the usual method of progress along the road.

36. The fact that the roads in question are not shown with a great degree of consistency suggests that they must be treated with caution in determining the issue of dedication. The dedication of land as a public road is a serious step interferring permanently with the title of the landholder. In order to protect the interests of the landholder and the public it is necessary that acts of dedication define the road with some precision. The need for certainty in the description of the land dedicated is implicit in the judgment of the Court in Rapley v Martin (1865) SCR 173 at 180.

37. There is also a difference between the maps in this case, most of which are Pastoral or Topographic maps, and maps which have been held, in the cases, to constitute evidence of an intention to dedicate. In the majority of cases where a map has been held to show dedication the map has been drawn up as part of a Crown grant or in conjunction with a subdivision of land by the owner. See for example Attorney-General v The City Bank of Sydney (192) 20 SR 216; Scott v The Presidents of the Shires of Eltham and Heidelberg and Anor (1876) 2 VLR 98; Rapley v Martin (1865) SCR 173; Permanent Trustee Company of NSW v Council of the Municipality of Campbelltown and Anor. [1960] HCA 62; (1960) 105 CLR 401. In such situations there is a more obvious intention on the part of the landowner to deal with the title to the land in question. Such maps therefore are more clearly an indication of an intention to dedicate a road to the public.

38. The evidence establishes that certain of the roads have been graded by the relevant Department of the Commonwealth Government or of the Northern Territory Government at different times. I am satisfied that the road grading work carried out by Mr. Lewis was in the course of his duties and I draw the inference that it was carried out at public expense. Road 3 was graded between 1966 and 1967, road 4 once in 1966 and once 1968, road 5 in 1966 and once in 1967 and roads 11, 13 and 14 in 1966 and 1967. This limited amount of public expenditure some twenty years ago is, of its own force, insufficient to establish an unequivocal intention to dedicate. Even in conjunction with the other evidence in the case it does not seem to me to be of significant probative value.

39. Although the frequency of use and the purpose of the use varies from road to road the evidence may be summarised as establishing that for a considerable number of years the roads have been used by land owners or leaseholders, persons in their employ for business or social purposes, by Aboriginal people, by government officers for official or social purposes including Miss Martin, a schoolteacher and Mr. Brumby, a stock inspector with the Department of Primary Industries and Fisheries. There is some degree of use of certain of the roads for tourist purposes.

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:

"... by placing too liberal a construction in
favour of the public and against the landowner
upon acts of passage which are tolerated by him,
there is a danger lest, in the sparsely settled
districts of a country like this, where roads are
few and unmade, and mutual concessions on the part
of the land owners and the public are necessary,
land owners should be put upon the defensive, and
be forced to set obstructions in the way of every
act which, in a long course of time, might be
construed as the assertion of a right of public
highway."

41. The remarks of Blackburn J. in Elizabeth Valley Pty. Limited v. Fordham and Ors (1969-70) 16 FLR 459 at 464 are also relevant:

"... I find it difficult to apply the principles
derived from English cases to conditions in the
Northern Territory, where on one hand large tracts
of unalienated Crown land can relatively easily be
traversed without the knowledge of anybody except
the person who traverses them, and where, on the
other hand, a track made through the bush by a
single vehicle, once made, can so easily be
followed by a casual traveller some time
afterwards. On all this evidence, I cannot be
satisfied that there has been such open use, as of
right, by the public, as to lead to the inference
that the Crown, as the owner of the land, must
have been aware that the public believed that the
track had been dedicated, or that the Crown acted
in such a way as to induce a reasonable belief on
the part of the public that the road was a public
road."

42. A considerable amount of evidence in this case was directed to the question whether in fact use has been made of the roads by the public as the public or in some other capacity; for example, by licence of the owner of the station concerned, or in furtherance of a public duty or casual or occasional use.

43. I am not satisfied that the use of the roads upon which the applicant relied by the various persons concerned over the years has been other than as private roads by station owners or lessees and others who travel to the stations for business, official (e.g. to inspect stations for the purpose of ensuring compliance with statutory duties such as the Stock Diseases Act (NT) s. 42(1)(a)) or social purposes or by persons as invitees or licensees or for neighbourly relations in these large areas of land. Nor am I satisfied that the use by some Aboriginal people of certain of the roads was other than in accordance with Aboriginal tradition pursuant to sub-s. 24(2) of the Crown Lands Act (NT). It must be remembered that the Mount Allan station is run by Aboriginal people and I am not satisfied that the use of certain of the roads by aboriginal people is other than for the purposes of running the Mount Allan station or for visits by aboriginal people to their kinsfolk.

44. A dedication of land as a road confers rights upon members of the public in derogation of the previous rights of the land owner. It is only unequivocal acts of dedication from which an intention to dedicate may be inferred. Dedication will sometimes be inferred from user but to constitute an effective act of dedication the user must be by a member of the public as a member of the public, there cannot be a dedication to a limited part of the public: see Poole v Huskinson [1843] EngR 39; 152 ER 1039 at 1041 and Stewart v Wairoa County Council 28 NZLR 178 at 191-2. I am not satisfied that any of the roads were dedicated to the public and I find that there was no effective act of dedication at common law of any of the roads involved in this case. Sub-section 11(3) of the Act does not preclude the inclusion of the land over which the roads run in the land grant in this case.

45. I base my conclusions on the whole of the evidence before the Court which includes material that was before the first respondent when he made the decision impugned in this case and the additional material relied on by the applicant which was not before the first respondent. If I ignore the material placed before the Court which was not before the first respondent and thus confine the attention to the material that was before the first respondent when he made his decision under challenge it is plain in my opinion that none of the grounds of attack can be supported.

46. I turn now to the question of whether there has been a breach of the rules of natural justice.

47. The applicant placed before the first respondent by letter dated 23 September 1988 a considerable amount of material relating to the Mount Allan land claim and the proposal to grant an estate in fee simple to the Yalpirakinu Aboriginal Land Trust. The material dealt extensively with alleged detriment in relation to the roads numbered 3 to 14 and on page 2 of the memorandum which accompanied the letter the following statement was made:

"Stock Route: Detriment
There are a number of matters of detriment in
relation to the stock route and stock reserve
which we would wish to put to you. These matters
of detriment update and elucidate the material
which was put to Mr. Holding. We should have them
to you within 28 days. But in the meantime we
refer you to the comments of Maurice J. in the
Ti-Tree Report, the Chilla Well Report and the
Warumungu Report."

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."

51. His Honour proceeded in para. 133 to say:

"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.

65. I would dismiss the application with costs.