Billy Boy Foster Jampijinpa & Ors v. The Honourable Maurice, M.D. [1987] FCA 642

Billy Boy Foster Jampijinpa & Ors v. The Honourable Maurice, M.D. [1987] FCA 642

The expression 'road over which the public has a right of way' as used in ss.11 and 12 of the Aboriginal Land Rights (Northern Territory) Act 1976 does not include stock routes proclaimed under the 1933 notification. The legislative context and intent, as well as Ministerial statements and the distinct treatment in local ordinances, indicate Parliament did not intend to treat stock routes as 'roads' for this exclusion.

Parties
First Respondent: The Honourable Michael David Andrew Maurice, Aboriginal Land Commissioner; Second Respondent: Billy Boy Foster Jampijinpa & Ors; Prosecutor: Attorney-General for the Northern Territory of Australia
Jurisdiction
Australia
Judgment Date
26 November 1987
Procedural Posture
Special Case / Full Court Hearing and Determination of Reserved Questions
Outcome
First reserved question answered 'No'; question 2 does not arise; costs awarded to respondents.
Legal Topics
Aboriginal Land Rights, Definition of Road Under Statute, Exclusion of Stock Routes, Right of Way, Statutory Construction, References to Parliamentary Materials
Aboriginal and Torres Strait Islander Law Statutory Interpretation Administrative Law Aboriginal Land Rights Definition of Road Under Statute Exclusion of Stock Routes Right of Way Statutory Construction +1 more

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Parties

The Honourable Michael David Andrew Maurice, Aboriginal Land Commissioner

First Respondent

Billy Boy Foster Jampijinpa & Ors

Second Respondent

Attorney-General for the Northern Territory of Australia

Prosecutor

Procedural Posture

Special Case / Full Court Hearing and Determination of Reserved Questions

Legal Issues

  1. 1 Whether a stock route proclaimed in 1933 is 'land on which there is a road over which the public has a right of way' for the purposes of the Aboriginal Land Rights (Northern Territory) Act 1976 by virtue of the proclamation alone
  2. 2 Whether stock routes fall within the exclusionary provision for 'roads' in ss.11 and 12 of the Act

Ratio Decidendi

The expression 'road over which the public has a right of way' as used in ss.11 and 12 of the Aboriginal Land Rights (Northern Territory) Act 1976 does not include stock routes proclaimed under the 1933 notification. The legislative context and intent, as well as Ministerial statements and the distinct treatment in local ordinances, indicate Parliament did not intend to treat stock routes as 'roads' for this exclusion.

Court Disposition

First reserved question answered 'No'; question 2 does not arise; costs awarded to respondents.

Orders

  • The Court answers the first question: 'No.', that the stock route is not 'land on which there is a road over which the public has a right of way' for the purposes of the Act by virtue of the 1933 proclamation alone.
  • The second question does not arise.