Beacroft, Laura --- "Warumungu Land Claim" [1986] AboriginalLawB 60; (1986) 1(23) Aboriginal Law Bulletin 6

• Warumungu Land Claim
• Postscript

---

Warumungu Land Claim

Casenote by Laura Beacroft

In 1978 the Warumungu mob claimed areas of unalienated Crown Land around Tennant Creek (see [1982] AboriginalLB 59; 1(6)pg1). During the 1982 hearing of the claim, the Northern Territory Government alienated some portions of the claimed land which were then held as leases in perpetuity by the Northern Territory Development Land Corporation. The hearing of the Warumungu land claim stopped whilst litigation proceeded on the consequences of the Northern Territory Government's action, for the Warumungu claim, and other land claims similarly affected. (Kenbi No. 1 & Jawoyn.) In 1984 the High Court ordered the Land Commissioner, Mr Justice Maurice, to hear the Claim (Attorney-General (NT) v Aboriginal Land Commissioner, HC March 1984, unreported).

In March this year, Justice Maurice began re-hearing the Warumungu claim. Several legal issues have since arisen (see LSB October 1986 for update on issues not discussed below). A preliminary matter raised by the Northern Territory Government was whether the area claimed in 1978 was identifiable. Mr Justice Maurice, whilst acknowledging a 'verbal misdescription of land' in the original application, said the intention of the persons who lodge the application is clear from 'simply reading the metes and bounds description from either the relevant pastoral leases or the pastoral maps'.

The central issue was whether land, alienated since the receipt of the original Warumungu claim, was still claimable. J Maurice noted that since the claim, there had been 2 enlargements of the Tennant Creek town boundaries-in 1979, regulations under the Planning Act (NT) 1979 specified an area 9 times the size of the then town of Tennant Creek to be treated as town land, and in 1980 an area to the south, roughly two-thirds the size of the then existing town of Tennant Creek, was proclaimed town land under the Crown Land Ordinance 1931 (now Crown Lands Act).

J Maurice referred to the High Court's consideration of the Kenbi No. 1 (The Queen v Toohey; Experts Northern Land Council [1981] HCA 74; (1981) 151 CLR 170) and Jawoyn (Re Kearney; Exparte Northern Land Council (1982) 52 ALR 1) land claims. He noted that these cases establish that town land within the terms of the Planning Act, and so the 1979 enlargement, is excluded from Claim (see s 3(1)) Aboriginal Land Rights Act (NT) 1976. Since the definition of town land in the Planning Act (s 5(a)) covers town land proclaimed under the Crown Lands Act, the 1980 enlargement of Tennant Creek boundaries is also not claimable.

On the basis of these authorities J Maurice also noted that a possible basis for review is alleged ulterior purposes for enlarging town boundaries. (An allegation of improper purpose is yet to be tested in relation to the Kenbi claim.) However he said there was no suggestion of ulterior purpose in either enlargements of the Tennant Creek town boundaries. He cited the Jawoyn case as authority for presuming the regularity of such a decision, in the absence of evidence. He quoted, in particular, Justice Wilson in Jawoyn:

It is not to be assumed, in the absence of evidence that a law which sets apart an area of several hundred square kilometres surrounding a town to be treated as a town, is not a law relating to the use of land 'in or near towns'.

The Warumungu land claim is now proceeding on the assumption that the land alienated in 1979 and 1980 is town land and not claimable.

Brief mention was made by Mr Justice Maurice of a 1981 town plan that extends the town boundaries further than the 1980 proclamation. Mr Justice Maurice decided that this 1981 extension, without enactment of a regulation under the Planning Act, was claimable land.

Postscript

The Federal Court upheld Justice Maurice's decision on discrepancies in the description of the land in the Warumungu Claim. Mr Maurice had rejected the Attorney-General's submission that the Claim be dismissed for uncertainty. (Attorney-General (NT) v Aboriginal Land Commission, Fed. Ct. (Beaumont J), November 1986, unreported.)