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Court and Tribunal Decisions - Australia
Federal Court of Australia (Olney J)
9 September 1999
ABORIGINAL PEOPLE AND TORRES STRAIT ISLANDERS — native title — claimant application for determination of native title — identification of native title holders — identification of traditional laws and customs in relation to land — extinguishment of native title — previous exclusive possession acts — reservation or setting aside of land inconsistent with continuation of native title — Native Title Act s 47B — occupation of land at time of application — form of determination of native title.
The Arrernte people (Mparntwe, Antulye and Irlpme estates) were applicants for native title over lands and waters in and around Alice Springs. The application was made to the National Native Title Tribunal under s 13(1) and s 61(1) of the Native Title Act 1993 (Cth) (the NTA) and was accepted by the Native Title Registrar. No determination was made by the Tribunal and the application was lodged with the Federal Court on 21 May 1996. The Arrernte claimed native title rights and interests in the land in the form of possession occupation use and enjoyment to the exclusion of all others, subject to the rights of others validly granted, and identified particular rights of importance.
1. Section 225 of the NTA does not require each individual member of the group of persons identified as holding native title to be identified by name.
2. The native title holders are not limited to those whose rights and interests are equated with ‘traditional ownership’ but extends to those who exercise traditionally based rights in relation to the land in question including where those rights lack a proprietary element.
3. On the evidence presented, the Arrernte peoples’ rights to the possession, occupation, use and enjoyment are in no instance exclusive. While the right to refuse entry may remain part of Aboriginal law, it was not in fact a right currently exercised or observed by the Arrernte, even in relation to other indigenous people.
4. The pastoral leases granted by South Australia and the Northern Territory were determined to be indistinguishable from those considered in Wik and therefore did not grant exclusive possession and did not extinguish native title.
5. Crown leases granted for conservation purposes are not exclusive possession leases (and therefore not within the ambit of NTA s 23B (2)(c)(viii)). Vesting of land for the purposes of conservation in a government agency or corporate body, or the subsequent substitution of one body for another, will not extinguish native title.
6. Native title is not affected by a reservation for a public work, but will only be affected by the construction of a work. The construction of a public work will not necessarily lead to the conclusion that the whole of the area reserved was necessary or incidental to the operation of the work.
7. Mere regulation of native title rights, such as water control legislation, flora and fauna legislation, local government, and soil conservation legislation, does not extinguish native title rights. This principle also applies to short term regulatory regimes, for example, for defence purposes.
8. Legislation regulating the lives and activities of Aboriginal peoples throughout the history of the Northern Territory was introduced for the protection and advancement of Aboriginal peoples, despite our perceptions of those regimes with hindsight. It would be quite contrary to the beneficial intention of such legislation for it to be construed as evidencing a clear and plain intention to adversely affect native title rights and interests.
9. The decision outlines four general principles in the application of s 47B to non-contiguous applications.
(1) existing lots and boundaries are irrelevant to determining a native title area;
(2) separated parts of the claimed area that may be remote from each other need not be regarded as separate areas. Implicitly, occupation of any part of the claimed land may satisfy the requirement of paragraph (1)(c);
(3) in determining what constitutes occupation of such an area, occupation of land should be understood in the sense that the indigenous people have traditionally occupied land, in accordance with the way of life, habits, customs and usages of the group, rather than according to common law principles and judicial authority relating to freehold and leasehold estates and other statutory rights;
(4) in applying NTA s 47B, the inquiry should concern the extent of occupation, in the sense described, at the time the application was made.[1]
1. This is an application for a determination of native title in relation to land and waters in and near Alice Springs in the Northern Territory.
...
The application was made to the National Native Title Tribunal (the Tribunal) on 31 August 1994 pursuant to s 13(1) and s 61(1) of the Native Title Act 1993 (the Act) and was accepted by the Native Title Registrar on 12 April 1995. The Tribunal made no determination under ss 70, 71 or 73 of the Act and on 21 May 1996 the Native Title Registrar lodged the application with the Federal Court for decision.
...
3. The Attorney General for the Commonwealth was given leave to intervene on 10 June 1997 when a question was raised concerning the failure of the Native Title Registrar to give notice of the application to a number of persons and companies having mining interests in the claimed land [under s 66(2)(a)(v)].
....
After hearing submissions from counsel for the Attorney General and the other parties I ruled that the proceeding was not invalidated by the failure by the Native Title Registrar to give notice to eight individuals and corporations shown to have a registered proprietary interest in various parts of the claimed land, but directed that the District Registrar give notice of the proceedings to the holders of such interests and provide them with an opportunity to be heard. None of those concerned made any response.
....
5. In their application the applicants identify ‘other persons with whom the applicants claim to hold title’ as follows:
The applicants are family representatives who hold native title along with all other members of their families. The land the subject of this application is primarily associated with Central Arrernte people although other Arrernte people also have traditional connections to the area. The applicant families encompass the interests of both Central Arrernte and other Arrernte people. For the purposes of this application these families are collectively termed the Mbantuarinya Arrernte.
Subsequently, the landholding groups were described as the members of Mparntwe, Antulye and Irlpme estate groups. In these reasons the persons on whose behalf the application is made are collectively referred to as ‘the claimant groups’.
6. The area of land and waters covered by the application is described in the application by reference to attached maps which identify 166 separate parcels of land and waters. It is said that all land and inland waters claimed are either vacant Crown land, Crown land subject to various reserves, Crown land subject to various leases and Crown land `set aside’ for various purposes and that none of the land or waters claimed is held under freehold title or held under a current pastoral lease.
....
8. The determination sought by the applicants in the form expressed in para 12.3 of their written submission dated 12 June 1998 is as follows:
(a) native title exists in the Mparntwe estate, the Antulye estate and the Irlpme estate, being the estates in which the areas of land and waters the subject of the application are located;
(b) the native title to the land and waters the subject of the application is held by the members of the Mparntwe estate group, the Antulye estate group, and the Irlpme estate group;
(c) the native title rights and interests confer possession, occupation, use and enjoyment of the land and waters the subject of the application on the members of the three estate groups to the exclusion of all others, subject to the rights of others validly granted by the Crown pursuant to statute to possess, occupy, use or enjoy the land or waters;(i) the right to possession, occupation, use and enjoyment of the land and waters of their estates that are the subject of the application, subject to the rights of others validly granted by the Crown pursuant to statute to possess, occupy, use or enjoy the land or waters;
(ii) the right to be acknowledged as the traditional Aboriginal owners of the land and waters of their respective estates;
(d) alternatively, the native title rights and interests of the members of the three estate groups that are of importance are:(i) the right and interest of possession, occupation, use and enjoyment of the land and waters of their respective estates;
(ii) the right to be acknowledged as the traditional Aboriginal owners of the land and waters of their respective estates;
(iii) the right and interest of ownership of the natural resources of the land and waters of their respective estates, and the right to use and enjoy those resources;
(iv) the right to give or refuse permission to non-members of the estate groups to occupy, or enjoy the land and waters of the respective estates, or to use and enjoy the natural resources of that land and waters;
(v) the right to make decisions about the use of the land and waters of their respective estates;
(vi) the right to protect places and areas of importance in the land and waters of the respective estates;
(vii) the right to manage the spiritual forces and to safeguard the cultural knowledge associated with the land and waters of the respective estates.
This form of determination was put forward ‘by way of preliminary submission’ at a time when amendments to the Native Title Act were actively under consideration by the Commonwealth Parliament and reflects the provisions of s 225 of the Act as it then applied. A new s 225 was substituted by the Native Title Amendment Act 1998. The Court is now not required to identify the native title rights and interests that it considers ‘to be of importance’, but rather it is required to determine ‘the nature and extent of the native title rights and interests’. Paragraph 24 of Schedule 5 to the amending Act provides that the substituted form of s 225 is to apply to all determinations made after the commencement of the amending Act, regardless of when any native title determination application was made. In these circumstances the new form of s 225 is applicable to this proceeding. As no further submission has been made since the amended section came into operation, it is presumed that for the purposes of s 225(b) (as amended) the applicants seek a determination that the nature and extent of their native title rights and interests in relation to the claimed land encompass all of the rights and interests asserted in paras (d) and (e) of the proposed determination as expressed in para 12.3 of the submission of 12 June 1998.
9. The trial was conducted at Alice Springs and occupied a total of 35 hearing days. It commenced on 1 July 1997 and concluded on 9 February 1999. The Northern Territory was the only party other than the applicants to participate in the trial and in these reasons is referred to as the respondent. The applicants called 50 witnesses and the respondent called five. Numerous exhibits, including a number of uncontested witness statements, were tendered and admitted into evidence. A number of sites were visited in the course of the hearing at the request of both the applicants and the respondent. Although there were no formal pleadings the issues were initially defined by the exchange of statements of facts, issues and contentions. The 1998 amendments raised further issues which were addressed at a special sitting of the Court convened after the new provisions took effect.
10. In Mabo v Queensland (No 2) [1992] HCA 23; 175 CLR 1 (Mabo No 2), the concept of what is now generally understood as ‘native title’ was referred to by each of the majority Judges. Mason CJ and McHugh J referred (at p 15) to the recognition by the common law of Australia of ‘a form of native title which ... reflects the entitlement of the indigenous inhabitants, in accordance with their laws or customs, to their traditional land’. Brennan J (whose reasons for judgment Mason CJ and McHugh J expressly adopted) said (at p 57):
The term ‘native title’ conveniently describes the interests and rights of indigenous inhabitants in land, whether communal, group or individual, possessed under the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants.
...
The Native Title Act 1993 was the Commonwealth Parliament’s response to the decision in Mabo No 2. In the preamble it is recited, inter alia, that the High Court has:
held that the common law of Australia recognises a form of native title that reflects the entitlement of the indigenous inhabitants of Australia, in accordance with their laws and customs, to their traditional lands.
The principal object of the Act is expressed, in s 3(a), to be ‘to provide for the recognition and protection of native title’.
The statutory definition of ‘native title’ largely adopts the language used in Mabo No 2.
Subsections (1) and (2) of s 223 provide:
223 (1) The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia.
(2) Without limiting subsection (1), rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.
The resolution of an application for a determination of native title will initially require the Court to inquire into and make findings concerning:
In the event that the claimant group establishes the existence of traditional rights and interests in relation to the claimed land, it will then be necessary to consider the extent, if any, to which those rights and interests are recognised by the common law.
11. The paragraphs which follow contain, in summary form, a description of some aspects of the social organisation and cultural traditions of the members of the claimant groups. What is written is based upon a report prepared by Dr John Morton, a consultant anthropologist engaged by the applicants. The report was tendered in evidence (exhibit A3) without objection. Its contents are not controversial and accordingly these paragraphs represent a commentary on undisputed aspects of the evidence of an expert witness and as such provide a context in which the evidence of the Aboriginal witnesses can be more readily understood. To the extent that assertions of fact are made, they represent Dr Morton’s evidence which is unchallenged; and to the extent that opinions are expressed, they are Dr Morton’s and stand uncontradicted. The respondent did not call any expert evidence.
12. It is the applicants’ case that since time immemorial the area in and around Alice Springs has been occupied by the Arrernte people under an orderly and mutually recognised system of governance and laws by which they live and define their relationship with the land and their environment. The traditional country of the Arrernte extends far beyond the area affected by the present application which is made on behalf of specific Arrernte groups whose estates include various portions of the claimed land. The estate groups in question are the Mparntwe, Antulye and Irlpme. In terms of the proportion of the claimed land associated with the particular estate groups, Mparntwe is the dominant group. Large parts of the Antulye and Irlpme estates lie outside the area of the claim.
....
13. Connection to land, and rights and interests in land are to a large degree subsumed under the Arrernte concept altyerre, a complex word which has several different but related meanings. It can be translated as ‘the Dreaming, Dreamtime: the creation of the world and the things in it, and its external existence’. Dr Morton says ... (at p 9):
Apart from creating the landscape itself and the forms of art associated with it, the ancestors also brought into existence all the other features of contemporary human existence — hunting and gathering, the making and use of tools, rules of kinship, language and dialect variation, and so on. Collectively, and in conjunction with totemic beliefs and ceremonial action, all these features may be glossed in English as the Law. While the Law is often narrowly defined in terms of ceremonial activity, it may also be construed as a more general system of rules and regulations through which people define their rights and interests ...
14. The Arrernte word apmere has the board sense of ‘place’ but may, in some contexts, refer to such terms as ‘site’, ‘camp’, ‘country’ or ‘home’. Dr Morton says (at p 10):
The ancestors created the world, so all the features of the landscape are now seen as apmere (sites) which mark their presence. This is because all geographical traces, through their totemic creation, are spiritually bound to the embodiment of an ancestor. However, some of these places are more prominent than others ...
Such larger areas of country (also called apmere) are generally referred to by anthropologists as estates. Estates consist of a network of Dreaming tracks and a mosaic of specific sites marking the ocal deeds of ancestral figures. Some sites are ameke-ameke; that is, particularly powerful and dangerous in a supernatural sense. Such places must be approached with care; others must be avoided. However, avoiding is only the negative side of a positive injunction to carefully manage the power concentrated in certain places. Most sites are not ameke-ameke. They may be regular camping places or notable landmarks which are not regarded as especially dangerous. As a living landscape, an estate consists of a network of sites with different types of significance.
Responsibility for site protection in general, and for careful management of the power of certain sites in particular, typically falls upon senior adults. In some cases the responsibility is gender specific. It is also held on behalf of all others who are members of the landholding group. To understand the composition of such groups, it is first necessary to know something about Arrernte kinship.
15. An estate is always associated with, and owned by, a group of living people who have established connections to the original ancestors in a variety of ways.
...
18. Whilst what in English is called ‘biological relationships’ are understood by Arrernte people as one kind of recognised relationship, so too is adoption which is a normal part of Arrernte kinship practice and is critical in understanding the position of many children of mixed-race parentage who have been incorporated in Arrernte society ...
20. While apmereke-artweye are often designated as owners of an estate, they take care of it in partnership with others known as Kwertengerle. The English term ‘boss’ is sometimes applied to apmereke-artweye but may also be used for Kwertengerle. Other English terms used to convey the meaning of Kwertengerle include ‘manager’, ‘boundary rider’, ‘policeman’ ‘spokesman’ ‘prime minister’ and ‘fixer’.
...
While the apmereke-artweye link to an estate emphasises continuous patrilineal descent, Kwertengerle are primarily thought of as matrifiliates — the children of women patrilineally connected to the estate. The role may in turn be acquired by those children’s own children. So, just as apmereke-artweye have strong descent ties to the estate of their arrenge (father’s father), others have Kwertengerle responsibilities for those estates when related to them through their atemeye (mothers’ fathers), aperle (fathers’ mothers) and ipmenhe (mother’s mothers).
...
21. The concept of descent is conventionally understood to include genetic connection or something comparable, eg adoption, but descent is not the only factor by which an interest in an estate may be acquired. There is also the important process known as ‘conception’. In this context conception does not refer to the moment of fertilisation, but rather to what is believed to be the entry of an ancestral spirit into a women to animate the child with which she is already pregnant. This occurs some months into the pregnancy and may be indicated by the child’s quickening in the womb. The animating force is one of the many spiritual ‘fragments’ left behind in the landscape by a totemic ancestor. Conception links a person not only with a Dreaming and its track, but also with a place on the track where a particular ancestral event took place. This place is often referred to as the ‘conception site’. A person retains a life-long association with his of her conception site and Dreaming.
...
22. ...
Dr Morton says (at p 31):
People connected with Dreaming lines to an estate can and do assert rights and interests in that estate, but, as with conception, the degree to which such rights and interests are realised depends on negotiation with members of the landholding group (apmereke-artweye and Kwertengerle). In other words, interests in estates through Dreaming connections do not, in themselves, confer membership of landholding groups.
...
23. Knowledge of Dreamings is generally distributed throughout a local population; it is largely open and may extend some way beyond the landholding group. Dreamings also have sacred objects, songs, designs (‘paint’) and dramatic acts associated with them, which the ancestors have left behind for their heirs to inherit. Some aspects of this inheritance is public, openly held and celebrated by men and women, and taught to children in the Arrernte community. Other aspects are restricted to either women or men. While both men and women have their own ‘sides’ in relation to this knowledge, they speak for their land as a coherent group of senior landholding group as a whole. They are obliged to reproduce their own structures of authority and teach younger members of the groups as considered appropriate. The younger members of the group thus progressively acquire this knowledge and hold it for future generations.
...
25. At p 37 of his report Dr Morton provides the following summary:
Arrernte laws and customs relating to rights and interests in land in Alice Springs and nearby areas can be summarised as follows:
(a) subsections;
(b) moieties; and
(c) kin relatedness (consanguinity and affinity).
...
28. Before proceeding to a consideration of the evidence relating to the identification of the native title holders, it is appropriate to observe that there is no dispute that the whole of the claimed land is part of the country recognised as the traditional land of the ancestors of the members of the claimant groups at and prior to the settlement of that land by non-Aboriginal people.
...
30. The evidence establishes that there are groups of Aboriginals who claim and exercise communal or group rights and interests in relation to one or more of the estates which comprise the land and waters the subject of the application. That is not in issue, nor is it disputed that the rights and interests in question are possessed under laws and customs acknowledged and observed by the Arrernte people of the Alice Springs area and that those laws and customs are derived from laws and customs passed down from the ancestors of the present claimants. The changing social and political environment arising from European settlement has undoubtedly given rise to some modification and adaptation of the old laws and customs, but that is not to say that the laws and customs as presently acknowledged and observed are other than the traditional laws and customs of the claimant groups.
31. Whatever relationships may, in former times, have entitled a person to claim the status of apmereke-artweye or Kwertengerle, there is presently no uniformity of understanding amongst those members of the claimant groups who gave evidence. In the early stages of the hearing it seems that the evidence tended towards the proposition that descent from one’s arrenge was required for the status of apmereke-artweye and from one’s atemeye, for the status of Kwertengerle. This is the thrust of the evidence of the earlier witnesses who were mainly the senior members of the claimant groups. In later evidence, given mainly by younger claimants, descent from any of one’s four grandparents was asserted to be sufficient to give rise to rights in relation to an estate. And it may well be that there is no necessary conflict between these two assertions; it all depends upon the nature of the rights asserted. The Native Title Act recognises that native title rights and interests include hunting, gathering, or fishing, rights and interests, that is, rights which may be purely usufructuary and exercisable without the need for any proprietary interest in the land or waters over which they may be exercised. By way of analogy, reference may be made to the Aboriginal Land Rights (Northern Territory) Act 1976 under which a finding that there are traditional Aboriginal owners of land is necessary before a grant of title can be made to a Land Trust, but once a grant is made the land is held for the benefit of ‘Aboriginals entitled by Aboriginal tradition to the use and occupation of the land, whether or not the traditional entitlement is qualified as to place, time, circumstance, purpose or permission’ (Land Rights Act s 11(4)). In the context of the Native Title Act it would appear that a traditional right to hunt, to gather or to fish on an estate with the permission of the land holding group would amount to a native title right or interest and entitle the person concerned to recognition as a native title holder (s 224(b)). Be all that as it may, in the event that it finds that native title exists, the Court is charged with the task of identifying the persons or group of persons who hold the native title rights (s 225(a)). It would be impossible in a case such as the present to name all of the relevant individuals and it would be a useless exercise to do so. With the passage of time the composition of the group will change as senior members pass on and new members are born. The concept of native title is not confined to what may be termed ownership or traditional ownership of land but rather extends to all traditionally based rights and interests in relation to the particular area in question.
32 ...
As native title rights and interests may extend to rights and interests which lack any proprietary element the concept of ‘traditional ownership’ is not appropriate to describe ‘native title rights and interests’ as defined in the Native Title Act. The Act makes no distinction between those rights and interests which on the one hand may confer a status equivalent to ownership and those which on the other hand are purely usufructuary or indeed are merely permissive. On the basis of the material presented in this case the appropriate description of the native title holders of the estates of the claimant groups is those Aboriginal persons who are descended from the original Arrernte inhabitants of the Mparntwe, Antulye and Irlpme estates who are recognised by the respective apmereke-artweye and Kwertengerle of those estates under the traditional laws acknowledged and the traditional customs observed by them as having communal, group or individual rights and interests in relation to such estates.
33. Paragraph (a) of s 225 of the Native Title Act contemplates that a determination of native title will identify ‘who the persons, or each group of persons, holding the common or group rights comprising the native title are’. I do not regard this provision as requiring each individual member of a group of persons found to hold native title to be identified by name. Such a requirement would be impossible to fulfil and even if it were possible to name each individual comprising the group at the time the determination is made, to do so would be meaningless as the composition of such a group will inevitably be in a state of flux as senior members pass on and as new generations emerge. In my opinion a description of the type suggested in the final sentence of the preceding paragraph is sufficient to satisfy the requirement of s 225(a).
...
35. On the basis of the claimed rights and interests the applicants seek the determination to which reference is made earlier in these reasons. Although there is a degree of inconsistency between the exclusive right asserted in para 11.6 of the submission and that asserted in subpara 11.7(i), I will assume that the applicants’ primary claim is to exclusive possession, occupation, use and enjoyment of the claimed land, a claim which is repeated in a modified form in subparagraph (c) of the proposed determination. I have some difficulty in understanding the full import of the claim in para 11.7 (ii) of the submission (which is repeated in the proposed determination) to be acknowledged as the ‘traditional Aboriginal owners’ of the claimed land and waters. In the Land Rights Act the term ‘traditional Aboriginal owners’ has a special and defined meaning but it is not a term which is found in the Native Title Act, and if it is intended to be equated with ‘native title holder’ (defined in s 224) or ‘common law holders’ (defined in s 253) then it would be preferable to use those terms which have a meaning in the context of native title law.
36. Before embarking upon a detailed consideration of the claimed native title rights and interests it will be convenient to make reference to the evidence of a number of the senior claimants. It is a consistent feature of the evidence that witnesses assert that their knowledge of their traditional laws and customs has been, and continues to be, passed down from earlier generations. This being so, it is logical to assume that the senior generations of the claimant groups can provide the most reliable evidence of traditional laws and customs.
...
38. Rosie Ferber Ampetyane, a senior Kwertengerle for the Mparntwe estate was asked by Mr Howie (at T 214-215) what rights and obligations Arrernte law gave her in Mparntwe country but her initial answers were not responsive to the question. However, after the intervention of the luncheon adjournment the following exchange took place between counsel and the witness (T 216-217):
Q. Now, Rosie, I was asking you before the luncheon adjournment about Mparntwe country and about your Arrernte law and about what rights that law gives you in Mparntwe country and I think you have told us that, for that country, you belong to it, that you are Kwertengerle for it, that you are apmereke-artweye through your mother, and that she was apmereke-artweye, and you have told us that your spiritual totems are in the country. I just want to ask you a little more about the rights that you have in Mparntwe country. In the evidence that you have given today and yesterday, you have spoken of camping and living at various places, at Inernte-akerte which is site 16, at Uyenpere Atwatye which is site 51, at Kere Kwatye, site 23, at Ilperle Tyathe which is site 7, at Werlatye Atherre which is site 9, at Mpwetyerre which is site 44. They are just the ones that I can think of for the moment. There may be others. But they are different places you have camped on in Mparntwe country. When you have been living at those places, have you had the right to live there by your law, or not?
A. That question, in my view, my answer to that — that is my family have been living here for generation to generation and not moving away to other countries that belong to other tribes. Arrernte people have been living here always and never moved away from here and that gives me the right to be here and — and I should be fighting — fighting for this land and that gives me the right. I should be looking after the sacred sites, looking at the land itself, when developers wanting to take a bit of land away from us again and looking at it my way. Looking at Mparntwe now is like watching yourself being torn apart, and I’ve been emotionally free to talk — talk with this land and that gives me the strong right through my culture — to look after the land the way the old people looked — looked after it. And when they were living here none of the tribes would come in here without permission from the old people. And inwardly, I look at it that way and I think that gives me the right to be — talk for Mparntwe.
Q. And if you have got that right to be here and talk for Mparntwe, do you also have a right to use Mparntwe land?
A. Mparntwe is my country. I’m — I’ve got the right to go around Mparntwe area looking for what I — what I can get from it in ways of tucker and meat and looking for water — and which places to go back with my kids and show them the things that I want to show them. That — I think that gives me the strong point to be — and talk about Mparntwe.
...
40. When Patrick McMillan, another senior Mparntwe Kwertengerle gave evidence at a site known as Ilperle Tyathe (otherwise the Warlpiri Camp) near an area which is registered with the Aboriginal Areas Protection Authority, the following exchange took place. (T 328-9):
Q. By your Arrernte Law, what can you do here; that group of people that you have spoken of, what can you do here?
A. Well, I’d look after it and protect the place.
...
Q. If you wished to, by your Law, is this an area where you could camp and walk around?
A. Yes.
Q. What else could you do here, by your Law?
A. Go hunting here somewhere.
...
Q. In earlier days, did people camp here?
A. Yes.
Q. Did that include Mparntwe people?
A. All mixed up, yeah.
Q. All mixed up. Yes. All right. What about bush tucker; can you get bush tucker here?
A. Yes.
Q. What sort of things?
A. Those alangkwe.
Q. Right. What about the soakages that were here; do you have the right to get water from those soakages by your law?
A. Yes.
Q. When you get older, Patrick, who will take over this country?
A. My family.
Q. Which people?
A. My sons and daughters.
Q. Yes. Just by themselves?
A. They got to have some Kwertengerle somewhere.
Q. All right. And will they take over that country took, round here?
A. Yes.
Q. Who will teach the next generation about this area; who will tell them about the places and the soakages and the bush tucker, and the Dreaming, those things?
A. I’ll tell them. I’ve already told them anyway.
41. Robert Stuart first gave evidence at the site known as Akngwelye Antere (site 38) which is to the west of the town close to the Alice Springs Desert Park. In the course of describing his hunting and gathering activities he gave the following evidence (T 382-3):
Q. And when you were doing that on whose country were you travelling by your traditional law?
A. Mparntwe.
Q. And which people belonged to that country?
A. The Arrernte Mparntwe.
Q. Did you have any understanding then of your relationship to those people?
A. Yes.
Q. Who did you get that from?
A. From my father.
Q. And what did he tell you about that?
A. I can’t understand the question.
Q. What did he tell you about your relationship to this country, your father, as to whose country it was or how you were related to it; that sort of thing?
A. I think he said to me by altyerre.
Q. And what did you understand that to mean?
A. At the beginning.
Q. Well, when you came here, Bob, did he — when you came here did you have a right to come here and hunt in that way?
A. I believe and still do believe that I’ve still got the rights.
Q. And where do those rights come from?
A. From altyerre.
Q. And you say you believe and still believe that you have them. Is it only you personally who has them?
A. The rest of the Mparntwe Arrernte.
...
Q. The knowledge of this — your connection here and of the altyerre here, you say you have got it from your father. Who will take it in future generations, that knowledge?
A. My sons, yes.
42. Later, after the Court had returned to the main hearing place Robert gave further evidence, including:
Q. Were you told that you were conceived at Anthelke Ulpaye or near Ntyarlkarle?
A. Practically on the banks of the Todd River.
Q. All right. The fact that that is your conception place, does that in itself give you rights in Mparntwe country?
A. Yes.
Q. Rights of what kind?
A. Right, I suppose, is to call your home.
Q. Yes?
A. The rights to hunt or forage. The rights to protect the place.
(T 406)
...
Q. And you say you have got — you had a right to live there and hunt and forage; what other rights do you say you have according to that law?
A. The rights to protect our sacred sites.
Q. Yes. Are your rights confined just to the sites?
A. No.
Q. What rights do you have to land that is not where the particular site is, but is still Mparntwe land?
A. We — I believe we still have the right.
Q. To do what?
A. To own land.
Q. Yes. If there was to be development on that land, Mparntwe land, according to Arrernte law, what should happen?
A. Permission should be sought.
Q. Yes. From whom?
A. From the custodians, the Mparntwe people.
Q. And by your law, what rights would you have if permission was sought?
A. The rights to say no.
...
Q. Yes?
A. And if whoever wishes to come back, he’s to sit down and negotiate.
Q. All right. And where do those rights come from?
A. From the law.
(T 428-9)
43. Myra Hayes is a senior claimant from the Antulye group. The following extracts from the transcript relate to the laws and customs of the group in relation to the land.
Q. All right. Now when you think of that country, Myra, under your Arrernte law do you have rights in that country?
A. Yes, we have rights in that country.
Q. Where do they come from?
A. From my grandfather. We’ve got to follow his spirits and stories, what he told us. We’ve got to believe in that.
Q. What can you do on that country? Where are your rights?
A. We got rights to go there and show the kids their great-grandfather’s story. Show them. Tell them about it so they can carry on.
Q. And is that important to you?
A. Yes, that’s very important for them, to learn about their great-grandfather’s story.
...
Q. And do you have any rights to be in that country?
A. I have to be — I got right to go around my country — so I can walk around.
Q. Is that Antulye country?
A. Yes.
Q. Where does that right come from?
A. From the old people.
...
Q. And can you live there?
A. Yes, if we get a piece of land on it to live around there.
Q. Do you want to live there?
A. Yes. We want to live there ... Because it’s our story and we have to tell the story, show the story to the kids and tell them how we connected to the land for the young kids, for our grandchildren here.
Q. Do you have rights to that bush tucker under your Arrernte law?
A. Yes, we have rights all through for all the bush tuckers in the bush country and everywhere. We don’t have to ask anybody to give permission to go and get it. We just got to walk ourselves and get it.
Q. What about that water — those soaks that you mentioned?
A. Soakages. Yes, we know how to go and look round for water, and we know where the old people used to find water. We know that. And we know how to dig up a soak, find water.
...
Q. When you were walking around with the old people, did they use the timber, did they use the wood to make things?
...
A. They used to make boomerangs, nulla nullas, spears, and they used to make yam-sticks, digging sticks.
...
Q. And what would they do with the boomerangs and the spears?
A. Well, they used to go hunting. They would used to use rifle, they used to have dogs — dogs to chase kangaroos.
Q. And spears?
A. Mm.
Q. Did you see them use spears?
A. Sometimes they used to use spears, but they used to put wires around to trap the kangaroos in the night and go in the morning and get the kangaroo out of the wire.
Q. Would they take other animals with those spears?
A. Yes. Sometime — most of the time they used to use boomerangs and things.
Q. Under your Arrernte law, Myra, do you have a right to take those animals?
A. Yes. .... That’s how the old people used to live on before white people’s tucker.
Q. Do you still have that right today?
A. Yes, we still have that right.
Q. And do you go after those animals today?
A. Yes, sometimes they go out there and get some.
Q. Is this out towards Antulye on that east side?
A. Yes, yes.
Q. When was the last time, Myra, you can remember? Was it last week or last year or five years ago?
A. No. What is today, Monday — they went out there on Sunday and they brought back kangaroo meat.
(T 471-3)
Q. And Myra, as kwetengerle do you under Arrernte law, do they have rights?
A. Yes.
Q. What rights are they?
A. They got to help us. If we need help, they come and sit down and listen and if anybody ask them they tell the same story, yes. They have rights to listen to our stories and they are like caretakers for us.
Q. Someone told me like lawyers?
A. Yes, they lawyers, they like lawyers, that’s in Aboriginal way.
Q. And Myra you have told us about your rights to that hunting and bush tucker and medicines, do they have any rights to those things?
A. Mm.
Q. As Kwertengerle?
A. Yes.
Q. In that Antulye country?
A. Mm
(T 476)
...
46. Patricia Ann Miller spoke about her traditional rights in relation to Mparntwe country and the practices that were formerly observed as between Aboriginal people when people from other areas wished to visit Alice Springs. Her evidence included the following (T 1347-8):
Q. Now do you as apmereke-artweye Kwertengerle have rights in that Mparntwe country?
A. Yes, I do.
Q. What rights are they?
A. I have the right to hunt and gather food, look after country, speak to people who I believe are misbehaving or desecrating things, speak on behalf of Mparntwe people without families, speak to Government Departments, notify sacred sites if we believe damage is being done in that area, welcome people to Alice Springs which all of our family groups and different members have been called on from time to time as specially for visiting conferences, and other Aboriginal people that come to town. We are respected by the rest of the Aboriginal community within the Alice Springs area of Mparntwe and that gives us a lot of responsibility.
Q. And does that include a right to live on Mparntwe country?
A. Yes, it does.
Q. You mentioned hunting?
A. Yes.
Q. Does it include a right to forage and take bush tucker?
A. Yes, when I was younger and before the town is spread out as much as now, we used to often go all around this area and get bush tucker and, you know, all that.
Q. We will come back to that, if I may. Is there a notion in Arrernte law of who can be here and who cannot be here?
A. Yes.
Q. When did you first learn about that?
A. I’ve known it all my life.
Q. What is the position?
A. The position that right where the town is situated is Mparntwe country, Mparntwe-Arrernte country. It is all Arrernte country as far as the eye can see, but there’s eastern, northern, Pertame mob, which is southern and western Arrernte.
Q. What if somebody from outside, say, Pitjantjatjara wanted to come in. When you were growing up was there any Arrernte laws about that?
A. Yes.
Q. What were they?
A. Well, nearly all those people when they came in, either travelling or with different station owners from the southern, south western region, they’d stop south of The Gap and they’d send a messenger in. And the people who dealt with those messengers would be my old uncles, which is my granny’s brothers.
...
Q. And what happened?
A. What happened is that usually they came into town, had a meeting, and asked why they were coming into town, whether it was for picking up stores or medical reasons or just to see other people.
Q. And someone would make a decision?
A. They’d make a decision and they’d allow people to come in.
Q. Who would make those decisions?
A. Nearly all the old people, jointly.
...
Q. And what happened if those arrangements were not followed by those outside Pitjantjatjara people? Did that cause a problem?
A. It wasn’t ...
Q. In the old days?
A. Yes. It was just what they call strangers, you know. So it just wasn’t one group with one tribal name.
Q. And if these strangers in the old days just walked in, what was the response?
A. Yes, yes, it was just referred to a big trouble.
I then intervened with a view to establishing the extent to which the former customs are still observed. The following exchange occurred:
Q. Could I just interrupt there. Could you tell me, is that process still followed, say with strangers coming into Alice as you have described it?
...
A. It’s followed probably more so through an organisational point of view today. There’s a lot of people that still recognise — the older people still recognise that Mpartnwe-arenye people are the traditional owners of Alice Springs, but the protocols are nearly always followed via the advisers to the organisations, and they track down through sacred sites or native title people who are the traditional owners. And people get messages like that, because you haven’t got the same travelling routes as what you had when I was a kid, you know, because people have got motor cars and sealed roads, and everything else. But the same status applies.
Q. For instance, if someone was coming in from, say, Hermannsburg to catch an aeroplane at the Alice Springs airport to go somewhere, they ...?
A. No, no, no. I think what’s been realised is that Alice Springs is sort of like the economic base for a whole lot of communities now. And more and more Aboriginal people are coming into town and using, like, you know, like European way of travel, you know, whether it a motor car or aeroplane, yes.
47. On the evidence which has been adduced in support of the applicants’ case it is not open to find that the members of the claimant groups have, in accordance with their traditional laws and customs, the right to the exclusive possession, occupation, use and enjoyment of the claimed land. The evidence does however establish that members of the claimant groups and their forebears have by Aboriginal traditional law and custom lived on the land of their respective groups, hunted wild life and gathered food found thereon and made use of the surface water resources. The advent of non-Aboriginal occupation of the land has clearly had an effect on the claimants’ ability to continue to exercise these traditional rights to the same extent that their forebears were able to but nevertheless they continue to use the land in the manner described and they do so in accordance with their traditional laws and customs.
48. The evidence indicates that as between themselves, Aboriginal people would be expected to recognise the rights and interests of the relevant land holding groups and on occasions may be expected to seek permission before embarking upon an activity such as building a permanent residence on the country of a group to which they themselves do not belong. There is however no evidence that in recent times any Aboriginal person or group has been excluded from entering or remaining on the claimed land or other traditional country of the claimant groups. Nor indeed that any person, Aboriginal or non-Aboriginal, has sought permission either to enter upon the claimed land or to establish a permanent residence there. The evidence does not support the general proposition that the claimant groups in practice enjoy, nor indeed that they claim the right to, the exclusive possession, occupation, use and enjoyment of their country. The traditional laws currently acknowledged and the traditional customs currently observed by the claimant groups do not extend to the exclusive entitlement which has been advocated in this proceeding. The claimants’ own evidence does not support the rights that have been asserted by others on their behalf.
49. Subparagraph (e)(iii) of the applicants’ proposed determination refers to the right and interest of ownership of the natural resources of the land and waters of their respective estates. The only natural resources of the land to which reference was made in the evidence are the animals hunted, the food gathered and the water. The rights which were asserted in relation to these resources were not expressed in terms of ownership but rather in terms of engaging in the activity of hunting, gathering and obtaining water for consumption. The use made by the claimants of the resources of their country is nothing more or less than one aspect of their right to use and enjoy the land. There is nothing in the evidence that would support a finding that by their traditional laws and customs the claimant groups enjoy the exclusive rights to the natural resources of their respective estates that the claim of ‘ownership’ suggests. They clearly have a traditional right to enjoy the resources found on their estates.
50. The claim to the determination sought in subpara (e)(iv) of the proposed determination is covered by the conclusions expressed above in paras 45 to 47 (inclusive) and no further comment thereon is called for. The rights referred to in subparas (e) (v), (vi) and (vii) are however of a somewhat different character.
51. There is a strong theme running through much of the evidence to the effect that the traditional laws and customs of the claimant groups require them to take special care to protect the integrity of places which are of spiritual importance to them; and the evidence contains many references to specific occasions when members of the claimant groups have been actively involved in endeavouring, sometimes but not always successfully, to prevent the destruction or degradation of such places. Indeed, the law of the Northern Territory in the form of the Northern Territory Aboriginal Sacred Sites Act 1989 provides some recognition of the importance in Aboriginal culture of sites associated with the spiritual beliefs of the indigenous people and the Commonwealth has also legislated in the same field. Any form of native title which did not recognise the need to protect sacred and significant sites would debase the whole concept of recognition of traditional rights in relation to land. Each of the rights expressed in subparas (e)(v), (vi) and (vii) of the proposed determination would be a normal adjunct of the recognition of native title rights and interests in land but the exercise of such rights would of necessity be subject to any valid executive or legislative act affecting those rights.
52. In Mabo No 2 Mason CJ and McHugh J, in summarising the view of the majority of the Court, said (at p 15)
... the common law of this country recognises a form of native title which, in cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws and customs, to their traditional lands ...
It follows that the common law of Australia does not recognise native title which has been extinguished; and it will be noted that the Native Title Act definition of ‘native title’ requires that the rights and interests in question be recognised by the common law of Australia (s 223(1)(c)).
53. In dealing with the extinguishment of native title Brennan J said, in Mabo No 2 (at p 68):
A Crown grant which vests in the grantee an interest in land which is inconsistent with the continued right to enjoy a native title in respect of the same land necessarily extinguishes the native title. The extinguishing of native title does not depend on the actual intention of the Governor in Council (who may not have adverted to the rights and interests of the indigenous inhabitants or their descendants), but on the effect which the grant has on the right to enjoy the native title.
...
Where the Crown grants land in trust or reserves and dedicates land for a public purpose, the question whether the Crown has revealed a clear and plain intention to extinguish native title will sometimes be a question of fact, sometimes a question of law and sometimes a mixed question of fact and law. Thus, if a reservation is made for a public purpose other than for the benefit of the indigenous inhabitants, a right to continued enjoyment of native title may be consistent with the specified purpose — at least for a time — and native title will not be extinguished. But if the land is used and occupied for the public purpose and the manner of occupation is inconsistent with the continued enjoyment of native title, native title will be extinguished. A reservation of land for future use as a school, a courthouse or a public office will not by itself extinguish native title; construction of the building, however, would be inconsistent with the continued enjoyment of native title which would thereby be extinguished. But where the Crown has not granted interests in land or reserved and dedicated land inconsistently with the right to continued enjoyment of native title by the indigenous inhabitants, native title survives and is legally enforceable.
A similar view was expressed by Deane and Gaudron JJ (at p 110):
The personal rights conferred by common law native title do not constitute an estate or interest in the land itself. They are extinguished by an unqualified grant of an inconsistent estate in the land by the Crown, such as a grant in fee or a lease conferring the right to exclusive possession. They can also be terminated by other inconsistent dealings with the land by the Crown, such as appropriation, dedication or reservation for an inconsistent public purpose or use, in circumstances giving rise to third party rights or assumed acquiescence. The personal rights of use and occupation conferred by common law native title are not, however, illusory. They are legal rights which are infringed if they are extinguished, against the wishes of the native title holders, by inconsistent grant, dedication or reservation and which, subject only to their susceptibility to being wrongfully so extinguished, are binding on the Crown and a burden on its title.
54. Native title is recognised, and protected, in accordance with the Native Title Act (s 10); and is not able to be extinguished contrary to the Act (s 11 (1)). The amendments to the Native Title Act made following the decision in The Wik Peoples v Queensland and Others (1996) 187 CLR 1 (Wik) deal extensively with extinguishment issues. The Act now provides that ‘a previous exclusive possession act’ (a term defined in s 23B), if attributable to the Commonwealth, extinguishes native title (s 23C); and further that a law of a State or Territory which conforms with certain requirements, may make provision to the same effect in respect of previous exclusive possession acts attributable to the State or Territory (s 23E). In the Native Title Act, the word ‘extinguish’, in relation to native title, means permanently extinguish the native title; after extinguishment the native title rights and interests cannot revive, even if the act that caused the extinguishment ceases to have effect (s 237A).
...
56. ...
From 1 January 1911 following surrender by South Australia and acceptance by the Commonwealth, the Northern Territory ceased to be part of South Australia and became a territory of the Commonwealth. Existing South Australian laws continued to apply to the Territory until otherwise provided. The Commonwealth Parliament passed the Northern Territory (Administration) Act 1912 under which, inter alia, the Governor General was empowered to make Ordinances having the force of law in the Northern Territory.
...
In 1978 the Commonwealth Parliament enacted the Northern Territory (Self-Government) Act and repealed the Northern Territory (Administration) Act. Since 1 July 1978 the Northern Territory has remained a territory of the Commonwealth but with its own institutions of self-government and responsibility for most State-type matters.
57 Prior to the surrender of the Northern Territory to the Commonwealth in 1911 South Australian law applied in the Northern Territory and after surrender continued to apply until superseded by Commonwealth law. The early pastoral leases relating to land the subject of this proceeding were granted under South Australian legislation and those current at 1 January 1911 continued until replaced by leases granted under various Crown Lands Ordinances promulgated pursuant to the Northern Territory (Administration) Act 1912. In subcll 44(1), 46(1), (2), (3), (4) and (5) of Schedule 1 to the Native Title Act reference is made, inter alia, to some early South Australian Acts (which are not of immediate concern in this proceeding) and to the Crown Lands Ordinances.
....
58. Part III of the various Crown Lands Ordinances of 1912, 1924, 1927 and 1931 contained provisions relating to the leasing of land. In each case Part III was divided into divisions which dealt separately with Pastoral leases (Division 2), Agricultural leases (Division 3), Leases of Town Lands (Division 4) and Miscellaneous leases (Division 5). Part III of the Crown Lands Act 1931-1991 contained in addition a Division 6 which dealt with Town Land Subdivision leases. In 1953 the Special Purposes Leases Ordinance was promulgated, and after self-government became the Special Purposes Leases Act.
59. The decision of the High Court in Wik is authority for the proposition that the pastoral leases there considered did not necessarily extinguish native title but it follows from the reasoning which led to that conclusion that a similar form of tenure commonly known in Australia as a pastoral lease, will not necessarily give rise to a right to exclusive possession of the demised land.
...
It may also be relevant to observe that not only were pastoral leaseholds granted over large tracts of land unsuitable for residential purposes, they were granted over land in areas remote from the centres of non-Aboriginal population where the indigenous population was known to continue to maintain a presence and to continue to use the land for sustenance and shelter in accordance with long established practices. The very nature of a pastoral leasehold when understood in the Australian context suggests an absence of an intention to exclude the indigenous population from its customary possession and occupation of the land.
The reasoning which found favour with the majority of the High Court in Wik is not capable of extension to leasehold interests which fit more comfortably within the mould of the common law concept of a lease. Indeed, in Wik (at p 118) Toohey J conceded that ‘the authorities point to exclusive possession as a normal incident of a lease’ although he further commented that they do not exclude an inquiry whether exclusive possession is in truth an incident of every arrangement which bears the title of lease.
It is a feature of the various Crown Lands Ordinances and Acts which have applied in the Northern Territory that the capacity to grant leases under those laws has been regulated by different provisions applicable to each different category of leasehold interest granted. Pastoral leases have always been treated as a separate category and it is only in respect of that category that special provision has been made to preserve the rights of the Aboriginal inhabitants. In the absence of the type of features which enabled the High Court to distinguish a pastoral lease from the more conventional leasehold tenure, it is reasonable to infer that other categories of leases granted under the relevant legislation would as a normal incident of the lease grant a right to exclusive possession.
60. The respondent says that any native title which may otherwise have subsisted in relation to the claimed land has been extinguished by various legislative and administrative acts of the Crown, and the use of land by the Crown, which were inconsistent with the continued exercise of the native title rights and interests claimed. The respondent relies upon three general categories of acts as supporting its submission that native title rights in relation to the claim area have been extinguished, namely:
(a) inconsistency of native title rights with rights granted to others;
(b) inconsistent legislative regimes;
(c) inconsistency between use of the land and native title.
In each category a number of different subcategories are identified.
61 The Native Title Act as amended in 1998 deals with the extinguishment of native title by previous exclusive possession acts ...
For the most part the acts specified in para 23B(2)(c) would according to the general principles expressed in Mabo No 2 and Wik be regarded as having the effect of extinguishing native title and in many respects s 23B does no more than to remove doubts as to the possible extinguishing effect of the granting of certain types of leasehold interest. In particular, this is the role of the provisions relating to Scheduled interests.
...
Schedule 1 has seven parts, each dealing with land in a separate State or Territory. Part 7 deals with the Northern Territory. It contains five clauses headed respectively Town leases etc (cl 42), Agricultural leases etc (cl 43), Leases for special purposes etc (cl 44), Miscellaneous leases (cl 45) and Other leases (cl 46). Each clause specifies an extensive list of leasehold interests to which it applies.
...
62. Each of subcll 44(1), 44(2), 45(1) and 46(7) of Schedule 1 refers to leases granted under particular statutory provisions which permit the lessee to use the land or waters covered by the lease solely or primarily for any of a number of specific purposes. In the case of subcl 44(1), which deals with Special Purpose Leases 282 purposes are specified; in subcl 45(1) dealing with Miscellaneous leases there are 181 purposes and in subcl 46(7) (Other leases) there are 291. The immediate impression gained from an examination of these provisions is that those who have been responsible for drafting the legislation have gone to extraordinary lengths to identify with precision the various purposes from which leases intended to be covered by these subclauses have been granted. For example, the fact that subcl 46(7) specifies both ‘car park’ and ‘public car park’ indicates that the specified purposes are not intended to be general descriptions of a purpose but rather to refer precisely and specifically to leases granted for the purpose as described ...
Another indication of the draftsman’s intention is that there is no common pattern to be found in the lists of purposes in the several subclauses. All this leads to the conclusion that the purposes specified in the Schedule are intended to relate to leases actually granted solely or primarily for those purposes. However, it does no violence to the general policy of the Schedule if, to the extent that the Schedule specifies a general purpose, such as for example ‘oval’, a lease for the purpose of say ‘football oval’ is treated as being encompassed by the purpose specified. A lease granted pursuant to legislation referred to in the Schedule which is not a Scheduled interest may nevertheless be a ‘previous exclusive possession act’ if it meets the criteria applicable to one or other of the categories of interests referred to in s 23B(2)(c).
63. The Native Title Act validates certain past acts (defined in s 228) attributable to the Commonwealth which but for the Act would have been invalid by reason of the existence of native title (s 14), and confirms the extinguishment of native title in relation to previous exclusive possession acts attributable to the Commonwealth (s 23C). The Act also makes provision for the validation by State and Territory law of past acts attributable to a State or Territory law (s 19). A previous exclusive possession act that affected land or waters within the Northern Territory which took place before the establishment of the Northern Territory is taken to be attributable to the Northern Territory (Native Title Act, s 23JA).
64. Division 2A was introduced into the Native Title Act by the 1998 amendment to deal with questions of validity of certain acts which took place on or after 1 January 1994 (the commencing date of the Native Title Act) but on or before 23 December 1996 (the date on which the High Court gave its decision in Wik). Such acts are called intermediate period acts, a term which is defined in s 232A. Section 22A provides that an intermediate period act that is attributable to the Commonwealth is valid, and is taken always to have been valid, and by s 22F it is provided that if a law of a State or Territory contains provisions to the same effect as 22B (which deals with the effect on native title of validation) and 22C (which deals with the preservation of beneficial reservations and conditions), the law of the State or Territory may provide that intermediate period acts attributable to the State or Territory are valid, and are taken always to have been valid ...
65. In 1994 the Parliament of the Northern Territory passed the Validation of Titles and Actions Act 1994 by which every past act attributable to the Territory was validated and taken always to have been valid (s 4). The Act also adopted the same regime in relation to extinguishment of native title by past acts as applies under the Native Title Act. Subsequent to the passage of the Native Title Amendment Act 1998 the Territory Parliament amended the Validation of Titles and Actions Act (the short title of which was changed to the Validation (Native Title) Act) by adopting provisions in relation to intermediate period acts and to the extinguishment of title by previous exclusive possession acts attributable to the Territory which are to the same effect as the Native Title Act provisions in that regard.
...
66. The concept of extinguishment of native title was the subject of detailed consideration by the High Court in Wik. In that case the Court had occasion to examine the effect on the presumed native title rights and interests of the plaintiffs of the granting under Queensland legislation, of certain pastoral leases. The majority (Toohey, Gaudron, Gummow and Kirby JJ) held that the leases in question did not confer rights to exclusive possession on the grantees. In a postscript to his reasons Toohey J, with the concurrence of Gaudron, Gummow and Kirby JJ, said (at pp 132-133):
To say that the pastoral leases in question did not confer rights to exclusive possession on the grantees is in no way destructive of the title of those grantees. It is to recognise that the rights and obligations of each grantee depend upon the terms of the grant of the pastoral lease and upon the statute which authorised it.
So far as the extinguishment of native title rights is concerned, the answer given is that there was no necessary extinguishment of those rights by reason of the grant of pastoral leases under the Acts in question. Whether there was extinguishment can only be determined by reference to such particular rights and interests as may be asserted and established. If inconsistency is held to exist between the rights and interests conferred by native title and the rights conferred under the statutory grants, those rights and interests must yield, to that extent, to the rights of the grantees.
67. In order to determine whether leasehold or other interests granted by the Crown are inconsistent with the rights and interests of native title holders it is necessary to analyse both the statute authorising the grant and the particular instrument of grant to determine first the nature of the rights granted and then to compare those rights with the pre-existing native title rights. If the continued exercise of the native title rights would be entirely inconsistent with those of the grantee, then the native title will be extinguished; if however, the two sets of rights are not entirely inconsistent, the native title rights must yield to those of the grantee to the extent of any inconsistency.
68. Section 23B(2)(c)(iv) of the Native Title Act provides that an exclusive possession pastoral lease (provided it is valid and granted before 23 December 1996) is a previous exclusive possession act. The terms ‘pastoral lease’ and ‘exclusive pastoral lease’ are defined in ss 248 and 248A respectively.
...
69. There is no evidence of any pastoral lease being granted in the area of the Northern Territory whilst it was part of New South Wales. However, during the administration of the Northern Territory first by South Australia and later by the Commonwealth 15 pastoral leases were granted with respect to various portions, but not the whole, of the claimed land.
...
79. The basis of the conclusion in Wik that the pastoral leases there considered (which did not contain any reservation or exclusion in favour of Aboriginal inhabitants) did not necessarily extinguish native title was that the majority did not consider them to have granted a right to exclusive possession. It is not necessary to analyse in detail the precise terms of the leases granted prior to 1911, nor the legislation which authorised their grant. There is no relevant aspect of either the terms and conditions of the leases or the legislation authorising their grant which in the facts of this case justify them being distinguished from those in Wik. Apart from the reservation in favour of Aboriginal inhabitants, there was no material difference either in form or substance between the 1876, 1898 and 1908 leases granted by South Australia and the leases considered in Wik. On the basis of the Wik judgment, had the South Australian leases not included the reservation they would not have been regarded as giving rise to a right to exclusive possession and accordingly, if those leases are said to have granted the lessees a right to exclusive possession, it could only be because they included the reservation. Such a conclusion defies logic.
80. The leases granted by the Commonwealth pursuant to the Crown Lands Ordinance 1912 did not contain any reservation or exception in favour of the Aboriginal inhabitants nor did the Ordinance require any such reservation to be included. The Ordinance did however differentiate between different classes of leases and in particular contained specific provisions which were to apply respectively to pastoral leases, agricultural leases, leases of town lands and miscellaneous leases. Section 27 provided that in addition to the provisions which all leases other than miscellaneous leases were required to contain, pastoral leases were required to contain the following reservations, covenants, conditions and provisions:
(a) a reservation of a power of resumption;
(b) a reservation of all timber and timber trees and of all trees producing bark, resin, or valuable substances;
(c) a covenant by the lessee that he will within three years after the date of the lease, stock the land to the extent prescribed by the regulations and keep the land so stocked during the continuance of the lease;
(d) a covenant by the lessee that he will fence the boundaries of the lease as prescribed by the regulations;
(e) a covenant by the lessee that he will comply with the laws in force relating to the destruction of vermin and noxious weeds;
(f) a covenant by the lessee that he will not, without the consent of the Director of Lands, cut any timber trees on the leased land, except for use on or in connexion with the land;
(g) a covenant by the lessee that he will not in clearing the land destroy any timber or timber trees or trees producing any valuable bark, resin, or other valuable substances, except as allowed by the regulations;
(h) a covenant by the lessee that he will not obstruct any public roads, paths, or ways, or interfere with the use thereof by any person, and will not interfere with travelling stock lawfully passing through the leased land;
(i) a covenant by the lessee that he will not pollute, divert, or obstruct any water flowing in a defined natural channel, unless by consent of the Director of Lands; and
(j) a covenant by the lessee that he will observe and comply with the regulations under the Ordinance for the time being in force.
The respondent argues that some or all of these provisions indicate an intention to grant the lessee a right to exclusive possession, but I do not agree. None of the listed provisions is incapable of performance without exclusive possession.
81. The evidence discloses that the absence of a provision in the Ordinances of 1912 requiring pastoral leases to contain a reservation in favour of the Aboriginal inhabitants was deliberate, but it does not follow that the omission necessarily reveals a clear and plain intention that pastoral leases granted pursuant to those Ordinances would grant to the lessees a right to exclusive possession. On the contrary, the circumstances were such that those responsible for the drafting and promulgation of the Ordinances were desirous of ensuring that proper provision should be made for the protection of Aboriginal rights.
...
84. In their submissions on extinguishment issues dated 23 December 1998 the applicants assert (at para 8.2.9):
The 1912 Ordinance was the first Commonwealth law relating to land in the Northern Territory. In drafting that law the Commonwealth chose not to make provision for the inclusion of a reservation in pastoral leases. The Commonwealth did not decide to omit or delete such a provision from an existing Ordinance. It is therefore not possible to infer from the memorandum and Ordinance, that the Commonwealth clearly and plainly intended to remove (or ‘extinguish’) rights of Aboriginal people derived from an existing law, together with all other rights which they might possess. The most that might be said is that the Commonwealth decided that in drafting its land laws for the Northern Territory it would not (for the time being) follow the practice adopted in South Australia. It is neither clear nor plain that the Commonwealth intended that Aborigines would no longer have any rights of access to or use of the pastoral lands of the Northern Territory in the exercise of their native title rights and interests. Indeed the memorandum would seem to suggest that there was a belief that the reservation accorded Aboriginal people rights beyond those derived from their native title (eg, the right to ‘camp permanently round the water-hole and prevent access to it by the lessee’s stock’) and that it was the scope of these rights which Professor Baldwin would be examining.
With respect, I agree with, and adopt, this reasoning. Subsequent events tend to confirm its validity.
85. The Crown Lands Ordinance 1924, which replaced the 1912 Ordinance, provided (in s 39) for terms and conditions which were to be contained in pastoral leases. Paragraph (b) required ‘a reservation in favour of Aboriginal inhabitants of the Northern Territory’.
...
Thus it was that the Commonwealth administration reverted to the same formula as had prevailed prior to the surrender of the Territory by South Australia.
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87. As neither the terms of the Ordinance nor the circumstances surrounding its promulgation lead to a conclusion that the Crown Lands Ordinance 1912 manifests a clear and plain intention to extinguish existing native title rights and interests the conclusion cannot be reached that leasehold interests granted pursuant to it were intended to grant lessees a right to exclusive possession. The preferable view is that there was at all relevant times a recognition both of the continued presence of the Aboriginal inhabitants on pastoral land and of their right to so remain and exercise the rights to which they were accustomed. The situation in relation to pastoral leases granted under Northern Territory Ordinances cannot be distinguished from that which prevailed under the Queensland legislation and leases considered in Wik.
88. For the reasons I have expressed, I am of the opinion that no part of the claimed land has been the subject of an exclusive pastoral lease. It follows that none of the pastoral leases which have affected the claim area is a previous exclusive possession act for the purposes of the Native Title Act or the Validation Act.
89. Subclause 46(7) of Schedule 1 to the Native Title Act deals with leases under para 23(b) (leases for a term of years) and 23(c) (leases in perpetuity) of the Crown Lands Act 1931-1991 and Crown leases under para 26(a) (leases for a term of years) and 26(b) (leases in perpetuity) of the Crown Lands Act 1992. In the period from 1985 to 1993 six perpetual Crown leases and nine term Crown leases were granted over parts of the claimed land.
...
(ii) CLP 445 and CLP 595 were granted in perpetuity to the Conservation Land Corporation with effect (in the case of CLP 445) from 24 April 1986 and (in the case of CLP 595) from 23 December 1986, in each case for the purpose of ‘carrying out the functions of the Conservation Commission of the Northern Territory in accordance with the Conservation Commission Act and the Territory Parks and Wildlife Conservation Act’. The purpose of the grants is not a purpose specified in subcl 46(7). Neither is a Scheduled interest.
...
The granting of CLPs 445 and 595 for the purpose specified does not indicate a clear and plain intention to extinguish existing native title rights and interests. The statutory functions of the Conservation Commission are not such that their performance in relation to the leased land would be inconsistent with the continuation of native title nor do they require the lessee of the land to have a right to exclusive possession. In these circumstances the leases cannot properly be regarded as granting a right to exclusive possession and are therefore not leases of the type described in s 23B(2)(c)(viii) of the Native Title Act.
CLP 445 and CLP 595 are not previous exclusive possession acts.
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(iii) CLP 764 was granted in perpetuity to the Mbantarinya Aboriginal Corporation with effect from 14 March 1990 for the purpose of ‘traditional village, residential and ancillary’ which is not a purpose specified in subcl 46(7) of Schedule 1. CLP 764 is not a Scheduled interest, nor is it a residential lease. There is nothing about either the purpose for which the lease was granted or the form of the lease that would suggest an intention other than to grant the lessee a right of exclusive possession. CLP 764 is a lease of the type described in s 23B(2)(c)(viii).
...
CLP 764 was granted under the Crown Lands Act 1931 which is not legislation of the type described in s 23B(9)(a). The grant was not expressly for any of the purposes described in s 3B(9)(b). The fact that the lessee is a corporation incorporated under the Aboriginal Corporations Act (Cth) does not clothe the grant with the characteristics referred to in 23B(9). CLP 764 is not caught by that subsection. It is a previous exclusive possession act.
...
Section 47A does not apply to the land covered by CLP 764. The lease was not granted under legislation of the type referred to in s 47A(1)(b)(i) nor is the land held expressly on any of the bases referred to in s 47A(1)(b)(ii).
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(vi) CLT 101, CLT 104, CLT 411 and CLT 511 were each leases for a term of years granted under paragraph 26(a) of the Crown Lands Act 1992 ... Each lease is expressed to have been granted for ‘subdivisional purposes’. The purposes specified in subcl 46(7) include ‘commercial property subdivision’ and ‘residential subdivision’. As it is not possible to conclude from the lease instruments that the leases were granted solely or primarily for one or other or both of those purposes, it is not possible to find that they are Scheduled interests. In each case the respective lessee undertook the obligation to subdivide the leased land in accordance with a Development Deed or a Development Agreement and upon completion was entitled to a grant of an estate in fee simple in the land provided that any land not zoned for residential or business purposes (eg roads, drains etc) would vest in the Territory, but the lessee was nevertheless entitled to use such last mentioned land for the purpose of providing services associated with the subdivision. Each of the leases was clearly intended to grant a right to exclusive possession. Each is a lease of the type described in s 23B(2)(c)(viii).
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90. Subclause 45(1) of Schedule 1 of the Native Title Act deals with miscellaneous leases under Div 5 of Pt III of each of the Crown Lands Ordinance 1912 (No 3 of 1912), the Crown Lands Ordinance 1912, the Crown Lands Ordinance 1924, the Crown Lands Ordinance 1927 (North Australia), the Crown Lands Ordinance 1927 (Central Australia) or s 25DAA, 74D or 74E or Div 5 of Pt III of the Crown Lands Act 1931-1991.
Section 69 of the Crown Lands Ordinance 1931 as originally enacted provided:
69. The Board may, subject to this Ordinance, grant to any person a lease of any portion of Crown lands, or of any dedicated or reserved lands, except any reserved lands within the boundaries of any town, which have been placed by proclamation under the care, control and management of the town council and lands reserved for the use and benefit of the Aboriginal inhabitants of the Northern Territory, for any prescribed purpose or for any purpose approved of by the Minister:
Provided that no lease shall be granted under this section for pastoral, cultivation or mixed farming and grazing purposes.
(In 1938 the section was amended to refer to the Administrator in lieu of the Board).
The form of the section but not (for present purposes) its substance was amended by the Crown Lands Ordinance (No 2) 1959 (No 2) of 1959 ...
Other provisions of the Ordinance which have some bearing upon the issues to be discussed below are ss 70, 71 and 72
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In the period from 1920 to 1968 seventeen miscellaneous leases were granted over parts of the claimed land.
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(iii) ML 271 was granted for a term of 21 years from 1 July 1943 for the purpose of ‘Establishing a leave and recreational centre for women’ which is not a purpose specified in subclause 45(1). ML 27 is not a Scheduled interest.
The lessee is described as ‘The Chief Medical Officer in respect of Alice Springs in the Northern Territory of Australia and his successors in office in an acting or permanent capacity’. The respondent submits that ML 271 is ‘a community purposes lease’, a term defined in s 249A as a lease that:
(a) permits the lessee to use the land or waters covered by the lease solely or primarily for community, religious, educational, charitable or sporting purposes; ...
The applicants say that the purposes which follow ‘community’ in para (a) of s 249A define and limit the class of community purposes embraced by the definition. I disagree. The several purposes specified have a distinctive character of their own; they have nothing in common which would justify construing ‘community’, in the context in which it appears, in any restricted sense. The purpose of the lease was to provide a facility for the benefit of women generally and in my view that is a community purpose. ML 271 is a community purposes lease.
(iv) ML 380 was granted for a term of 14 years from 1 July 1948. The lease does not state any purpose for which it was granted although the purpose ‘Business (gardening)’ is noted on an administrative record which is in evidence. The failure to express in the lease the purpose for which it was granted was in direct violation of a requirement of s 72, an oversight that was not capable of correction by some subsequent administrative act ... As the lease did not express the purpose for which the land was leased, it did not comply with the statute which authorised its grant. The execution of the lease in the form described would not have been a previous exclusive possession act. The respondent relies upon the fact of registration of the lease under the Real Property Act to cure any defect in the grant, it being said that registration guarantees an absolute and indefeasible title to the land. Be that as it may, s 23B(2) applies only to acts which are valid and whatever rights registration may have conferred on persons dealing with the lessees, the lease when granted was invalid, thus a nullity. The respondent’s proposition, if accepted, would mean that the administrative act of registering the lease under the Real Property Act not only cured its invalidity but also had the effect of extinguishing any existing native title rights and interests in the land. Such a proposition does not sit comfortably with either the general thrust of dicta of various Judges in both Mabo No 2 and Wik which emphasise the need for a clear and plain intention in order to extinguish native title, or with the requirement of s 23B(2)(a) of the Native Title Act that the initial criterion to establish a previous exclusive possession act is that the act is valid.
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(vi) ML 429 was granted for a term of 21 years from 1 July 1949 for the purpose of ‘Business (stock holding paddocks)’ which is not a purpose specified in subclause 45(1). ML 429 is not a Scheduled interest.
The lease was granted to Dalgety and Company Limited, a company well known as a stock and station agent involved, inter alia, in the pastoral industry. The area covered by the lease was a little more than 252 acres. Apart from the usual conditions, including the obligation to use the land only for the purpose for which it was leased the lessee covenanted that it would, ‘within twelve (12) months from the commencement of the term of the lease, enclose the leased land with a good substantial fence to the satisfaction of the Administrator, and keep same in good order and repair’. Neither the lease nor the purpose for which it was granted suggests other than that it was intended to grant a right to exclusive possession. It has however been suggested that the lease was granted for pastoral purposes, a purpose for which a miscellaneous lease could not be granted.
... In these circumstances, the expression ‘pastoral’ used in s 69 should be understood in the same sense as it is used in Div 2 of Pt III of the Ordinance, namely, the grazing of stock on large tracts of otherwise undeveloped land in remote areas. On this basis a lease of a relatively small area in close proximity to an established town for the express purpose of ‘stock holding paddocks’ would not be in conflict with s 69. The definition of ‘pastoral lease’ in s 248 of the Native Title Act, cannot affect the validity of the original grant, although for the purposes of that Act the lease may well be regarded as a pastoral lease. This would be so if the lease permits the land to be used solely or primarily for ‘maintaining or breeding sheep, cattle or other animals’ or for ‘any other pastoral purpose’. The obvious purpose of stock holding paddocks is to enable stock to be contained pending either their sale, slaughter or relocation. Such a purpose does not fit within the ordinary concept of ‘maintaining’ stock nor of a ‘pastoral purpose’; rather when carried on by a large stock agent it is more appropriately to be regarded as a business or commercial activity. In these circumstances I am of the opinion that ML 429 was validly granted as a miscellaneous lease. As it was a lease which permitted the lessee to use the land solely or primarily for business or commercial purposes it is a commercial lease of the type described in s 23B(2)(c)(iii).
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91. Subclause 44(1) of Schedule 1 to the Native Title Act deals with special purpose leases granted under earlier South Australian legislation as well as those granted under the Special Purposes Leases Act (formerly the Special Purposes Leases Ordinance 1953) of the Northern Territory. In the period 1959 to 1975 nine leases were granted over parts of the claimed land pursuant to s 4 of the Special Purposes Leases Act.
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(iv) SPL 174 was granted for 25 years from 8 March 1966 for ‘quarrying purposes only’. The Native Title Act defines the terms ‘mine’ (in s 253) and ‘mining lease’ (in s 245) as follows:
Mine includes:
...
(c) quarry;
...
A mining lease is a lease (other than an agricultural lease, a pastoral lease or a residential lease) that permits the lessee to use the land or waters covered by the lease solely or primarily for mining.
Having regard to these definitions a lease granted for ‘quarrying purposes only’ must be treated as a ‘mining lease’ and even assuming it to grant a right to exclusive possession, it would not come within the scope of s 23B(2)(c)(viii) and is not a previous exclusive possession act.
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92. Subclause 43(1) of Schedule 1 to the Native Title Act deals with leases of agricultural land, or agricultural leases, ... other than:
(a) an agricultural (mixed farming and grazing) lease; or
(b) a lease that:(i) permits the lessee to use the land or waters covered by the lease solely or primarily for grazing or pastoral purposes; and
(ii) does not permit the lessee to use the land or waters solely or primarily for agriculture, horticulture, cultivation, or a similar purpose.
93. In the period from 1944 to 1959 twelve agricultural leases were granted in relation to parts of the claimed land pursuant to Div 3 of Pt III of the Crown Lands Ordinance 1912 ...
(i) Two Agricultural (Mixed Farming and Grazing) Leases each numbered AL 423 were granted in perpetuity for the purposes of ‘mixed farming and grazing’. The first was granted on 3 October 1944 over an area of slightly more than 46 acres. It was later cancelled and a second lease was granted on 28 June 1954 for a term commencing on the same date as the original lease. The area of land was however reduced to a little more than 40 acres. By virtue of subcl 43(1)(a) AL 423 is not a Scheduled interest.
Each lease imposed obligations on the lessee, inter alia,(a) to stock the land with not less than a specified number of cattle or sheep;
(b) to progressively clear and cultivate specified areas of the land;
(c) to establish a home on the land within two years after the commencement of the lease and, subject to any exemption granted for cause shown, to thereafter reside on the land for a period of four months in each year; and
(d) within the first four years of the lease to enclose the land with a substantial fence.
On any view each lease demonstrates an intention to grant a right to exclusive possession and not being a mining lease each is a lease of the type described in s 23B(2)(c)(viii).
(ii) ALs 499, 500, 501, 502, 503, 504, 514, 515, 522 and 704 were each granted in perpetuity with effect from various dates between 1 July 1950 and 1 July 1959, in each case for the purpose of ‘cultivation farm’. Each is clearly an agricultural lease and therefore a Scheduled interest.
94. ...
In the period from 1959 to 1982 six leases of the type referred to in either subclause (1) or subcl (2) of cl 42 were granted.
...
Each is a Scheduled interest.
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96. On 28 December 1995 Airservices Australia (a body corporate established under s 7 of the Airservices Act 1995 (Cth)) became the registered proprietor of a freehold estate in lot 8542 which was formed by the consolidation of former lots 8239 (area 164) and 2655 (not claimed). The grant of the freehold estate is a previous exclusive possession act only if it is valid (s 23B(2)(a)) and took place on or before 23 December 1996 (s 23B(2)(b)). As this grant took place on 8 November 1995 s 23B(2)(b) is satisfied. The question of the validity of the grant is however affected by the fact that it took place after 1 January 1994. It will be valid if it is an ‘intermediate period act’ as defined by s 232A. The relevant part of s 232A is para (2)(e) which requires that at any time before the act was done, either a grant of a freehold estate or lease (other than a mining lease) was made covering any of the land or waters affected by the act (s 232A(2)(e)(i)) or a public work was constructed or established on any of the land or waters affected by the act (s 232A(2)(e)(ii)). The land had not previously been the subject of a grant of a freehold estate or a lease.
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(a) The construction of the realigned access road in 1979 was carried out on behalf of the predecessor of Airservices Australia which at the time was the Commonwealth (See Civil Aviation Act 1988, s 49; Civil Aviation Legislation Amendment Act 1995, s 9);
(b) The access road is open to and used by the public and is properly to be regarded as ‘a road’ for the purposes of the definition of ‘public work’ in s 253;
(c) that at a time before the grant of the freehold estate was made to Airservices Australia, a public work was constructed or established on part of the land.
On the basis of these facts, the grant of a freehold estate to Airservices Australia on 8 November 1995 is an intermediate period act which by virtue of s 4A of the Validation Act, is valid. The grant is a previous exclusive possession act.
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98. The respondent claims that there have been many instances of previous exclusive possession acts in respect of parts of the claimed land by the construction or establishment of public works.
There are a number of areas of claimed land which can readily be identified as being affected by public works and there are others in respect of which the evidence is inconclusive or in some cases deficient. In some cases the actual location of works has not been positively identified and in others the evidence does not touch upon the issue of whether the works were constructed or established by or on behalf of the Crown or other authority referred to in the definition. The identification of adjacent land has proved to be particularly difficult and in some instances nothing more than a general description in terms of the section has been relied upon. In such cases it will not be possible for the Court to make any definitive finding. Each of the areas which are said to be affected by a public work is dealt with below.
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(ii) Area 31 (Explosives Reserve)
On 7 March 1985 the Northern Territory Minister for Mines and Energy declared NTP 1454 (area 31) to be the Alice Springs Government Explosives Reserve. The declaration was made pursuant to s 23(1) of the Dangerous Goods Act. The evidence establishes that the works relevant to the establishment of the explosives reserve were completed in 1980, prior to the declaration of the reserve. On the assumption that the Crown had the authority to construct the works prior to the declaration of the reserve, the applicants accept that the works in question are substantially ‘public works’ as defined in s 253 and extinguish native title in the land on which the works are situated (s 23C) and whilst they do not accept that a fence is a public work or that, without more, the existence of a fence has any relevance in defining the area of adjacent land for the purposes of s 251D, in this instance it is accepted that the area of land surrounding the explosives compound, which is defined on three sides by the fenced boundaries of the reserve and on the south by a natural barrier, is necessary for, or incidental to, the operation of the public works. The applicants’ concession is properly made. The whole of area 31 is affected by a previous exclusive possession act.
(iii) Area 32 (Billygoat Hill)
During World War II the Australian Army was responsible for the installation of an number of water storage tanks on top of Billygoat Hill (area 32) and by 1958 there was a total of 11 tanks on the hill ...
There is no evidence that any of the tanks were in fact fixtures in the sense of being affixed to the land ... In the absence of any other evidence it is not open to infer that the tanks themselves were fixtures although the contrary is probably the case in relation to the concrete pillars. However, there is no evidence as to what adjacent land was necessary for or incidental to, ‘the construction, establishment or operation’ of the pillars.
(iv) Area 33 (Anzac Hill High School)
...
The applicants accept that the High School buildings and land immediately surrounding them and used by the school constitute a public work but point out that about 40 per cent of area 33 is outside and to the north of the school fence. The respondent asserts that the school buildings and all of the balance of area 33 other than ‘the area of land and waters within the registered sacred site (on the land) that is not reasonably required for access and maintenance of the public works’ is a public work.
In view of the limited claim that is made in respect of area 33 and the other difficulties referred to, the best that be said is that to the extent that a public work is situated on the claimed land, the land is affected by a previous exclusive possession act.
(v) Area 35 (Railway Line and Communications Tower)
...
The respondent submits that the tower and railway line and all of the remaining land within area 35 constitute a public work. The applicants accept that the railway line and tower are public works which extinguish native title but say that there is no basis upon which to treat the whole of the area as land affected by those works.
As the whole of area 35 was within ML 503, a previous exclusive possession act, there is little purpose in debating the extent of the area of land that should be treated as adjacent land but it would seem that all land within the fenced area around the tower should be so treated and that as a general rule, for the purposes of public safety, land within a railway corridor should be regarded as being necessary for and incidental to the operation of the railway established within the corridor.
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(vii) Area 40 (Mt Blatherskite)
There is evidence that a 25,000 gallon galvanised iron water tank was constructed on lot 950 (area 40) during World War II. The respondent submits that the tank including an undefined area of adjacent land is a public work. The tank itself no longer exists although there is a flattened circular area of ground which could indicate the location where the tank stood. There is no evidence that the tank or any associated works were established by or on behalf of the Crown although it is likely that the work was carried out by the Allied Works Council on behalf of the American Army. As there is nothing before the Court to suggest that the tank was a fixture, the respondent’s submission as to its status as a public work must fail.
(ix) Area 44 (Old Explosives Magazine)
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There can be no dispute that the magazine is a structure which is a fixture and it is clear from the evidence that it was constructed by or on behalf of the Commonwealth. It is also established by Mr Braham’s evidence (contrary to the applicants’ submission) that the area was fully enclosed by a wire mesh fence with a locked gate.
Given the nature and purpose of the structure and the relatively small area of land involved, it may be inferred that the whole of area 44 not actually occupied by the magazine was adjacent land.
(x) Area 53 (Underground Concrete Shelters)
...
There seems to be no doubt that the shelters described were built as air-raid shelters during World War II and were constructed by or on behalf of the Commonwealth. The applicants argue that the underground shelters having been built for a temporary purpose and being capable of being filled in, are not fixtures. With respect, such reasoning lacks any logical basis given the nature of the construction.
Area 53 is a square comprising 3640 square metres. Although there is no evidence as to the area of adjacent land that would have been incidental to the construction and operation of the air raid shelters it is fair to infer that given the extent of the excavation required and the purpose for which the shelters were constructed, the whole of area 53 should be treated as a public work.
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(xii) Area 93 (Alice Springs Fire Station)
The Alice Springs Fire Station is constructed on Lot 7728 (area 93). The building works commenced in about October 1996. The applicants accept that the works constitute a public work for the purposes of the Native Title Act but say that they do not constitute an intermediate period act and are therefore not valid.
The question of the validity of the works depends upon whether or not the original PL 1 was validly granted.
...
Various arguments have been raised by the respondent in reply to the applicants’ submissions concerning the invalidity of PL 1 and although as an academic exercise it may be of interest to ponder what rights, if any, Mr Bagot may have legally enjoyed during the many years he occupied and operated his pastoral holding more than a century ago, it would seem that the simple answer to this issue is found in the Native Title Act itself. Section 242(1) provides:
242 (1) The expression lease includes:
(a) a lease enforceable in equity; or
(b) a contract that contains a statement to the effect that it is a lease; or
(c) anything that, at or before the time of its creation, is, for any purpose by a law of the Commonwealth, a State or a Territory, declared to be or described as a lease.
The clear intention of the definition of the term lease in the Native Title Act is to avoid the type of theoretical discourse which PL 1 has provoked. If this were not so there would be no purpose in providing a definition which in effect says that if a document is called a lease or is treated as a lease then it is a lease for the purposes of the Act. It cannot be disputed that the document which was the original PL 1 was executed by the parties with the intention of creating a binding legal relationship; it was expressed to be a lease and was treated as such by both parties over a significant period of time. It is not without significance that unlike s 23B, which makes the validity of the acts referred to an express requirement, s 232A(2)(e)(i) does not raise any issue as to validity.
There is no question that PL 1 was a contract which contained a statement to the effect that it was a lease and it was certainly described as a lease. Whether Mr Bagot would have been entitled to enforce his rights as pastoral lessee in equity is a question which it is unnecessary to pursue.
In the result PL 1 must be regarded as a lease for the purposes of the Native Title Act; it follows therefore that the construction of the public work on area 93 which commenced in October 1996 whilst not a previous exclusive possession act, is a category A intermediate period act which is validated by the provisions of the Validation Act which correspond with s 22A of the Native Title Act.
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(xiv) Area 106 (Mt Nancy)
There is evidence that there is presently a 20,000 gallon galvanised iron tank and a pipeline on part of area 106; and further that during World War II an army camp was constructed (at least in part) on the same area of land. The respondent submits that all of these structures, together with an area of adjacent land within a fence identified in document 467 in exhibit NT 15 are public works.
The army buildings have long since been removed and given the temporary purpose for which they were established they cannot be treated as having been fixtures. The tank which is no longer in use, does not appear to be fixed to the ground and given the nature of its construction (galvanised iron), could not reasonably be regarded as having been intended as a permanent structure. The pipeline running from the tank is above the ground and does not appear to be fixed in any way. There is no evidence that either the tank, the pipeline or a former pumphouse in the same area was constructed by or on behalf of the Crown or any other relevant authority.
During the period from 1949 to 1973 a significant portion of area 106 was covered by a series of miscellaneous leases notably MLs 429, 442 and 483 all of which are previous exclusive possession acts. There is no evidence as to whether the tank in question was on any of the land covered by these leases.
It has not been shown that area 106 is affected by a public work.
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(xvii) Department of Transport and Works
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The respondent submits that all of the works mentioned in Mr Christensen’s evidence as works maintained or previously maintained by the Department of Transport and Works are public works.
To the extent that reference is made in para 3 of the statement to roads, the applicants accept that the assets described are public works but they do not accept that the carpark is a public road. In particular reference is made to the carpark at the Alice Springs Telegraph Station Historical Reserve. This site was visited by the Court during the hearing. The carpark in question is not readily distinguishable from a road in that it consists of a series of branches from the access road which are sufficiently wide to permit the parking of motor vehicles on either side. Each branch is open ended so that vehicles may be driven in from one end and may exit from the other. There are also numerous parking bays immediately adjacent to the road itself. If the distinguishing characteristic of a road is that it be available to the public for the passage thereon of people and vehicles it would seem that the carpark at the Alice Springs Telegraph Station Historical Reserve is a road, and is accordingly a public work. The same considerations apply in respect of the carpark at the Alice Springs Desert Park.
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(xxi) Police, Pound and Commonage Reserves
Reference is made later in these reasons to a series of reservations made for police, pound and commonage purposes. Exhibit NT 18, a document entitled ‘Background History to the Alice Springs Police Pound and Commonage Reserves — May 1997’, concludes with these observations:
The area of land under discussion in this brief history had been used for public purposes since the first proclamation for use for the police department in 1921. While the areas of land initially reserved were regazetted over time, or areas were swapped around to accommodate changing circumstances, there was little fundamental change in the use and tenure of the land.
Apart from the land being reserved for specific purposes, the main focus of the archival documents on which this history is based rests with the insight into the European use of the land. This did not change markedly in the type of use over the years, but the documents indicate that there was extensive use involving the storage of cattle and associated activities such as the supply of water, which led to storage facilities such as pens, fences and ramps. There was evidence of one ‘camp’ consisting of buildings, otherwise the presence of dwellings was minimal. The area also contained the town garbage and sewerage works, the position of which changed over time.
The respondent submits that native title is extinguished by —
The works described in Exhibit NT 18 and associated source documents (police, pound and commonage reserves, etc) including the following —
(a) The whole of the area of land and waters within the fencing and natural barriers in the commonage, police and pound reserves identified in Exhibit NT 18 on Claim Nos 28, 37, 38, 39, 44, 65, 133, 134, 151, 152, 155, 161, 162, 163, 164, 165, 166 and 168.
(b) The whole of the area of land and waters reserved within the sanitary (Claim No 134) and garbage (Claim No 28) reserves identified in Exhibit NT 18.
(The applicants have pointed out that area 166 was not affected by any of the reserves).
The applicants’ document ‘Supplementary Submission of Applicants : Public Works’ dated 5 February 1999 contains (in Table 2) an exhaustive analysis of the works said to constitute public works within the various areas affected by the former reserves. The applicants’ general approach is summarised in para 14.6 of the submission in these terms:
The First Respondent asserts, without reference to the evidence, that the area the use of which was necessary for or incidental to the operation of the works described in Ex NT 18 and associated source documents is the whole of the land within the fencing and natural barriers in the commonage police and pound reserves. What is apparent from the documents is that there was never any concerted or extensive development of infrastructure (‘works’) on the lands concerned for the purposes for which it was reserved. Accordingly, to the extent that there were any public works on the reserves it cannot be said that all of the lands surrounding them and enclosed by the fencing and natural barriers referred to in the documents was necessary for or incidental to the operation of those works. As previously noted, the area of land on which a work is situated is not relevant for the purposes of s 251D. Furthermore, as appears from Table 2 it is not possible to fix with any certainty the location of many of the works identified in the documents. They may not have been on claimed land at all.
The applicants’ submission on this issue is persuasive. It is not possible from the evidence to make any meaningful finding in relation to the establishment of any public works within the areas formerly covered by the police, pound and commonage reserves or as to any adjacent land. Similarly, there is no evidence to support the respondent’s contention that any works that may have been established on either the sanitary reserve or the garbage reserve were public works for the purposes of the Native Title Act.
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(xxiii) Reserve for Military Defence
...
The respondent submits that a large number and variety of works depicted in certain aerial photographs which are in evidence are public works and that the whole of the area of the former reserve is adjacent land. In response the applicants say —
...
To the extent that there are public works on any land formerly within the reserve for military defence there is no evidence which could lead to the conclusion that the whole of the area was necessary for or incidental to the operation of such works.
A view which I entirely endorse.
(xxiv) Closed Roads
The respondent says that there are a number of roads and areas of land which were previously roads within the claimed land. As to the latter, eleven such areas are identified and copies of the relevant Gazette notices closing the roads in question are in evidence.
It is the respondent’s case that by virtue of s 7 of the Control of Roads Act (formerly the Control of Roads Ordinance) all roads in the Northern Territory are the property of and are vested in the Territory.
...
The Native Title Act definition of public work includes a road that is constructed or established by or on behalf of the Crown, or a local government body or other statutory authority of the Crown, in any capacity. It is patent that not all ‘roads’ under the Control of Roads Act will be public works under the Native Title Act. For example, land which has been left as a road in a sub-division of Crown land is a road under the Control of Roads Act (s 7(c)(iii)) but unless and until a road is constructed on that land by or on behalf of the Crown or other relevant authority, the land will not be a public work. It necessarily follows that by simply providing evidence of the closure of a road under the Control of Roads Act, the respondent cannot hope to assert that the land in question has been affected by a public work. Evidence of the construction of a road by or on behalf of the appropriate authority is needed. In the instances referred to by the respondent there is no evidence before the Court from which it can find that any of the closed roads were or are public works.
There is the further question as to whether the vesting of closed roads in question in the Territory pursuant to s 7 of the Control of Roads Act is a previous exclusive possession act. Section 23B(3) of the Native Title Act provides that the vesting of land by or under State or Territory legislation is taken to be the vesting of a freehold estate over the land for the purposes of s 23B(2)(c)(ii) if a right of exclusive possession of the land is expressly or impliedly conferred by or under the legislation. Given the very broad definition of ‘road’ in the Control of Roads Act, and absent any express provision conferring a right of exclusive possession on the Territory in respect of land vested pursuant to s 7, there is no express or implied basis to conclude that such a right is conferred by the legislation. Nor does s 23(9C) assist the respondent’s argument. The vesting of land in the Territory pursuant to s 7 of the Control of Roads Act is not in itself inconsistent with native title.
There is therefore no basis to assert that apart from the Native Title Act the vesting extinguishes native title.
99. The respondent identifies four categories of licences which are said to extinguish native title rights and interests. Three of the categories namely grazing, occupation and miscellaneous licences are derived from the provisions of the various Crown Lands Ordinances and can conveniently be dealt with together although each has its own distinguishing features. The fourth category, a pipeline licence granted under the Energy Pipelines Act 1981, will be dealt with separately.
100. In the period from 1941 to 1968 a total of 24 grazing licences were granted over parts of the claimed land pursuant to s 107 of the Crown Lands Ordinance 1931. All have since expired.
...
106. The right to graze stock on land under a grazing licence is not essentially different from the principal activity authorised under a pastoral lease, namely the grazing of stock. In neither case is it necessary that the licensee/lessee enjoy exclusive possession of the land. Indeed, Mason J expressed the opinion that a grazing license held under s 107 of the Crown Lands Act did not confer a right to exclusive possession. The reasoning in Meneling and Wik leads inevitably to the conclusion that grazing licenses under s 107 of the Crown Lands Act 1931 do not grant a right to exclusive possession. The right to graze stock on land is not necessarily inconsistent with the continued existence in relation to that land of native title rights and interests. As in Wik, if there be any inconsistency between native title rights and interests and the rights conferred under a grazing licence, the native title rights and interests must yield to the extent of the inconsistency, to the rights of the grantee of the statutory right. As there are no grazing licences currently in force in relation to the claimed land, the question of the co-existence of native title rights does not arise.
107. The respondent submits that occupation licences confer a right of exclusive possession if the rights of the holder of the licence are inconsistent with any other contemporaneous occupation of the land. In its final written submission the respondent lists 65 occupation licences which are said to be of this character. The purposes for which the listed licences were granted include purposes such as horse training stable and camp, gardening, racing stable, storage and maintenance of equipment and messing, erecting machinery for screening sand, erection of screening plant, erection of machinery for supplying ready mixed concrete, sanitary contracting, access road, polo club playing field, sawmilling, bitumen depot, bore and pipeline, vehicle parking area, experimental and commercial growing of mushrooms, riding school, market gardening, firewood storage, stockcar racing, radio aerial, water pipeline, go-cart and motor cycle track, recreation, crushing metal and lime kiln, archery, stock piling of raw materials, gas storage tanks, operating ‘The Camp Oven Kitchen’ and storage of contract materials.
...
109. ...
On analysis there is little to distinguish the rights conferred by an occupation licence from those conferred by a grazing licence. The reasoning in Meneling is equally applicable in the case of occupation licences and it follows that occupation licences are non-proprietary in nature and do not confer on the licensee a right to exclusive possession and do not extinguish native title.
110. By parity of reasoning it must be concluded that miscellaneous licences under the Crown Lands Ordinance 1931 were non-proprietary in nature and even those which did not contain an express provision that the licence did not give the licensee a right to exclusive possession, did not confer such a right.
...
113. An analysis of the Energy Pipelines Act does not reveal a clear and plain intention to extinguish native title in respect of land affected by a pipeline constructed pursuant to a licence under s 15. In particular, no provision in the Act, nor any term of the licence, expressly confers on a licensee a right to exclusive possession of land. The scheme of the Act does not contemplate the acquisition of the property of the owners, occupiers or others with title to or rights in land nor is there anything in the legislation or the licence that suggests that the rights of persons entitled to the possession, occupation or use of, or of access to, land traversed by the pipeline, are not able to continue to exercise those rights.
114. The energy pipeline licence granted to Bulkships Container Pty Ltd does not operate so as to affect any pre-existing native title rights and interests in the land to which it applies.
115. ...
Subparagraph 23B(2)(c)(vii) of the Native Title Act provides that what is taken by subs 245(3) to be a separate lease in respect of land or waters mentioned in para (a) of that subsection, (assuming that the reference in subs 245(2) to ‘1 January 1994’ were instead a reference to ‘24 December 1996’) is a previous exclusive possession act.
There is no evidence that any part of the claimed land has been the subject of a previous exclusive possession act of the type referred to in s 23B(2)(c)(vii).
116. Ten sand and gravel permits were issued under reg 10 of the Control of Waters Regulations over parts of the claimed land from 1963 to 1978 authorising the permitees to take sand gravel from a particular area. Each permit was expressed not to give the permitee an exclusive right to the area embraced by the permit. The acts authorised by the permits did not grant a right to exclusive possession of the land to which they related and did not otherwise indicate a clear and plain intention to extinguish native title.
117. Various parts of the claimed land are or have been set aside for a public purpose, or are the subject of reservations under successive Crown Lands Ordinances/Acts.
...
118. In its final submission the respondent asserts that:
Once a reserve for public purposes is declared, the public thereafter do not require a permit, or any other executive action of the Crown to enter. At the very least, from the time of declaration, Aboriginal people have lost the right to exclude the public from entering to utilise the reserve.
...
119. The respondent’s proposition that at the time of proclamation of a reserve the only native title rights which survive the act of proclamation would be usufructuary rights which may be exercised in fact in a manner which does not interfere with the use of the land for the reserved purpose is not consistent with the test expressed by Brennan J in Mabo No 2 (at pp 69-70):
Where the Crown has validly and effectively appropriated land to itself and the appropriation is wholly or partially inconsistent with a continuing right to enjoy native title, native title is extinguished to the extent of the inconsistency. Thus native title has been extinguished to parcels of the waste lands of the Crown that have been validly appropriated for use (whether by dedication, setting aside, reservation or other valid means) and used for roads, railways, post offices and other permanent public works which preclude the continuing concurrent enjoyment of native title. Native title continues where the waste lands of the Crown have not been so appropriated or used or where the appropriation and use is consistent with the continuing concurrent enjoyment of native title over the land (eg, land set aside as a national park).
The concept of the ‘continuing concurrent enjoyment of native title over the land’ is not essentially different from the conclusion expressed in Wik (at p 133) that absent a clear and plain intention to extinguish native title, ‘if inconsistency is held to exist between the rights and interests conferred by native title and the rights conferred under the statutory grants, those rights and interests must yield, to that extent, to the rights of the grantees’. The various areas of the claimed land which have been the subject of reserves or have been set aside for public purposes are discussed below.
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(viii) Reserve 1071 (Alice Springs Telegraph Station National Park)
By proclamation made on 11 October 1962 an area of ‘1096 acres 30 perches more or less’ (areas 5, 6 and 10), was reserved pursuant to s 103 of the Crown Lands Ordinance 1931-1962 ‘for historical and recreation purposes to be known as Alice Springs Telegraph Station National Park and as Reserve 1071’.
...
On 17 May 1963 the Administrator committed the care, control and management of Reserve 1071 to the Northern Territory Reserves Board pursuant to s 13 of the National Parks and Gardens Ordinance 1959-1962, and on 1 January 1978 the management of the reserve was vested in Territory Parks and Wildlife Commission, a body established by the Territory Parks and Wildlife Conservation Ordinance 1976. Subsequently, on 30 June 1978, on the eve of self-government, the Administrator revoked the management arrangements for Reserve 1071 and on the same day declared —
each area of land specified in Schedule 2 (to the declaration) to be a reserve for the purpose or purposes for which it was reserved under the Crown Lands Ordinance by the proclamation referred to in Schedule 2 in relation to that reserve.
...
It is clear that the intention of the Administrator’s declaration was to declare the whole of the area referred to in the proclamation of 11 October 1962 (including area 6) to be a reserve. The Administrator’s power to make a declaration under s 12(1) of the Territory Parks and Wildlife Conservation Ordinance was not affected by the fact that part of the land was subject to an earlier reservation under the Crown Lands Ordinance.
The declaration of 30 June 1978 did not extinguish native title. At the time s 12(7) of the Conservation Ordinance provided that upon the declaration of a park or reserve under subs (1), all right title and interest, both legal and beneficial, held by the Crown in respect of the land vested in what was then the Territory Parks and Wildlife Commission which Commission can properly be regarded as an emanation of the Crown. It was constituted by a director appointed by the Administrator in Council and four members appointed by the relevant Ministers and it was required to perform its functions and exercise its powers in accordance with directions given by the Administrator in Council. Even if s 23B(3) of the Native Title Act is said to apply (a result which would depend upon whether the legislation expressly or impliedly conferred a right to exclusive possession) the vesting would not be a previous exclusive possession act unless apart from the Native Title Act it either extinguished native title or unless and until the land was used to any extent in a way that apart from that Act, extinguished native title (s 23B(9C)). Section 23B(9A) would not seem to be relevant as the vesting did not involve the establishment of a national or Territory park for the preservation of the natural environment of the area. The reserve was quite clearly established for historical purposes, being centred upon the preservation of the Old Telegraph Station and its environs. In fact, on 21 September 1979 the name of the reserve was changed to Alice Springs Telegraph Station Historical Reserve. The provisions in the Territory Parks and Wildlife Conservation Ordinance negate any suggestion of a clear and plain intention to extinguish native title.
...
In 1979 the Territory Parks and Wildlife Conservation Act (No 2) was enacted. Section 14 provided that any estate or interest in any land held by the Commission should vest both legally and beneficially in the newly created Territory Parks and Wildlife Land Corporation. Effectively, the Corporation was to stand in the shoes of the Commission and accordingly, to the extent that the Commission’s title was burdened by native title, so must the Corporation’s title be burdened. In 1990 the Conservation Commission Act 1980 established the Conservation Land Corporation and vested the estate and interest of the Territory Parks and Wildlife Land Corporation in the new Conservation Land Corporation. Again, there was merely a substitution of one body for another. Nothing about the legislation by which this substitution was effected evidences an intention, and particularly not a clear and plain intention, to extinguish native title.
In the result, neither the reservation of areas 5, 6 and 10 nor the subsequent legislative vesting of the land has extinguished native title.
...
(x) Reserve 1248 (Geological and Geophysical Research)
On 26 February 1969 NTP 1510 and Lot 5124 (areas 9 and 12 respectively) were reserved pursuant to s 103 of the Crown Lands Ordinance 1931 for the ‘purposes of long-term geological and geophysical research’ (Reserve 1248).
The same area was on 1 May 1984 declared a protected area pursuant to s 22 of the Territory Parks and Wildlife Conservation Act. Section 22(1) merely authorises the Administrator to declare an area of land, including alienated and reserved land, as a protected area, in relation either to wildlife generally or to a specified species. In a declaration under s 22(1) the Administrator may specify an article which may not be taken into a protected area without authority. Other sections of the Act authorise the displaying of notices indicating that the area is a protected area (s 23(1)); prohibiting the taking of wildlife from a protected area (s 23A); and restricting the presence of weapons, traps and other articles in a protected area (s 24).
Neither the reservation of the land nor its declaration as a protected area is inconsistent with native title. No other basis relating to the use of the land pursuant to the reservation or the declaration is advanced as having that effect.
...
(xvii) Storm Water Channels and Retardation Drains, Drains etc
Areas 77, 78, 79, 84 and 85 have been set aside for and are used as unlined storm water channels, and areas 81, 82 and 104 have been set aside for and are used for the purpose of flood retardation dams. The applicants’ claim in respect of these areas is expressed as not to interfere with the use of the land for those purposes. Each of the areas in question is within or adjacent to a relatively recent subdivision of land for residential purposes. The current use of the land for the purposes described is inconsistent with the continuation of native title.
Other areas ... have been set aside for water supply and drainage purposes ...
The evidence does not support a finding that the setting aside and/or use of these areas for the purposes indicated is inconsistent with native title.
120. The respondent asserts that native title has been extinguished by reason of the establishment of various legislative regimes which are said to be inconsistent either in whole or in part with the continuation of native title. Each category is dealt with below.
(i) Water
The respondent points out that the application in this proceeding includes a claim to the ownership of property in water within the claimed land. It is said that the creation of various rights and legal regimes under the Control of Waters Ordinance 1938 (now replaced by the Water Act 1992) and the regulations made thereunder are inconsistent with and thereby extinguish any native title rights of ownership of water. As the evidence does not support the applicants’ claim to ownership of the water resources of the claimed land the real issue in regard to water is whether the undoubted native title right of use has been affected by legislative intervention.
The Control of Waters Ordinance 1938 provided in s 3:
3(1) The property in, and the right to the use and flow and to the control of, the water at any time in any lake, spring or watercourse shall, until appropriated by other persons under this or some other Ordinance vest in the Crown, subject only to:(a) any rights reserved or granted to any person by or under this Ordinance or any other Ordinance or law in force in the Territory; and
(b) any right therein, or to the use thereof, inconsistent with the right of the Crown, which may be established by any person under any Ordinance or law which is, or has been, in force in the Territory.
The vesting of ‘the property in, and the right to the use and flow and the control of’ the water described, which the respondent relies upon as extinguishing any native title right to ownership, use and control of waters is severely qualified by paras 3(1)(a) and (b). Native title rights and interests, being rights which are recognised by the common law and protected by the Native Title Act, are rights which may be established by a person under a law in force in the Territory and thus the vesting effected by s 3 is subject to those rights.
Section 9 of the Water Act 1992 which has replaced the Control of Waters Ordinance, provides:
9(1) In this Division, ‘water’ means —(a) the water flowing or contained in a waterway; or
(b) ground water.
(2) Subject to this Act, the property in and the rights to the use, flow and control of all water in the Territory is vested in the Territory and those rights are exercisable by the Minister in the name of and on behalf of the Territory.
Although s 9 does not contain the qualifications to the vesting which are found in the former s 3, the section is expressed to apply ‘subject to this Act’, and as s 10 provides, inter alia, that ‘a person may take water from a waterway for domestic purposes’ the native title right to use water within the claimed land for the purpose of sustenance is unaffected.
(ii) Minerals
The application includes a claim to the absolute ownership of property in all natural resources, including rights of extraction of ‘all ochres, soils, mineral ores and associated substances’.
In their respective submissions the parties have addressed various issues raised by Commonwealth and Territory legislation affecting the ownership and vesting of minerals and to related questions but as the applicants have pointed out, their principal concern in relation to the exploitation of minerals in the claim area stems from questions relating to access to land and although they and their ancestors have traditionally used ochre and other substances which could be construed as minerals for ceremonial purposes, there is no evidence that they are, or were, obtained from any of the claimed land.
It is also appropriate to observe that nothing in the evidence of the applicants’ witnesses suggests that their traditional laws and customs related to the extraction or use of minerals or other substances extracted from the ground. In the circumstances the question of native title rights to minerals is not one which is an issue in this proceeding.
(iii) Flora and Fauna
The applicants’ claim to the exclusive use and enjoyment of natural resources in the claim area would include flora and fauna and the right to hunt, fish, forage and gather such resources.
There can be no question that the traditional laws and customs of the applicants and their ancestors related to the use of the food resources of their country for sustenance.
The respondent says that by the creation of inconsistent rights and legal regimes under the Territory Parks and Wildlife Conservation Act and its predecessors, native title rights in relation to flora and fauna have been extinguished, in whole or in part. In the alternative it is submitted that the right to hunt and gather flora and fauna, within strict limitations, are the only rights preserved by legislation dealing with these subjects.
In its submission the respondent asserts that s 29 of the Wildlife Conservation and Control Ordinance 1963 vested property in fauna in the Crown. It is said that such vesting of property, in conjunction with statutory control and prohibition on unauthorised taking and use of fauna goes beyond regulation of the exercise of common law entitlements and has the effect of extinguishing claimed native title rights in fauna but the basis of this proposition is flawed. Section 29 of the Wildlife Conservation and Control Ordinance 1963, in the form originally enacted provided:
29. Protected animals, partly protected animals and game are the property of the Commonwealth until they are lawfully taken or killed by a person.
The section was repealed by the Wildlife Conservation and Control Ordinance 1968 and the following new section inserted:
29.
(1) Subject to the next succeeding subsection, protected animals, partly protected animals and game are the property of the Commonwealth.
(2) When a person lawfully kills or takes into his possession or control any animal that is protected or partly protected or is game, the animal becomes the property of that person unless the killing or taking was done by him as the servant or agent of another person, in which case the animal becomes the property of that other person.
(3) When an animal that has become the property of a person by reason of the last preceding subsection escapes from his possession or control it becomes the property of the Commonwealth.
(The definitions and other provisions relating to protected and partly protected animals and game effectively extend to all species except fish).
No reference is made in the respondent’s submission to s 54 of the Ordinance which (as amended in 1964) provided:
54.
(1) The provisions of this Ordinance, except sections 36, 43 and 49 of this Ordinance shall have no operation with respect to an Aboriginal native of Australia.
(2) The provisions of sections 17 and 18 of this Ordinance apply in relation to an Aboriginal only in respect of the sanctuary firstly described in the Third Schedule but have no application where that sanctuary is the tribal land of the Aboriginal.
Sections 17 and 18 involved prohibitions on entering or being in sanctuaries without lawful excuse and taking fire-arms or traps into sanctuaries. The three sections referred to in s 54(1), which were to apply to ‘Aboriginal natives’, were those prohibiting sale or barter of protected animals without a permit, importing exotics such as sparrows, starlings and Indian mynas and keeping pets and releasing pests.
The Wildlife Conservation and Control Ordinance was repealed by the Territory Parks and Wildlife Conservation Ordinance 1976 which introduced a new regime in relation to the regulation of the hunting and sale of wildlife. The new Act also provided in s 46:
46. All plants on Crown land or plants that are wildlife on land leased from the Territory are the property of the Territory.
However, s 112(1) provides that nothing in the Ordinance (now Act) prevents Aboriginals who have traditionally used an area of land or water from continuing to use the area of land or water for hunting, for food gathering (otherwise than for purposes of sale) and for ceremonial and religious purposes.
The Northern Territory legislation is clearly distinguishable from that which was under consideration in Eaton v Yanner (unreported Queensland Court of Appeal, 27 February 1998) and does not go beyond the mere regulation of the exercise of the common law native title rights of the applicants to hunt and gather food resources for their own sustenance.
(iv) Aboriginal People
The Northern Territory Aboriginals Act 1910 (SA) and subsequent legislation, in particular the Aboriginals Ordinance 1918, provided for the declaration of prohibited areas from which Aboriginal people were excluded except by virtue of a permit or exclusion. Prohibited areas were declared from time to time under the 1918 Ordinance which extended to all of the claimed land except area 2 and parts of areas 1 and 3. The respondent asserts that native title has been wholly extinguished with respect of such prohibited areas.
The constitutional validity of the Aboriginals Ordinance 1918 was considered and upheld by the High Court in Kruger v The Commonwealth [1997] HCA 27; 190 CLR 1. The Ordinance was repealed by the Welfare Ordinance 1953.
In Kruger, the High Court was of the view that the intention of Aboriginals Ordinance 1918 was for the protection and advancement of Aboriginal people albeit that current perceptions of protection and advancement differ from those held at the time the Ordinance was in effect. It would be quite contrary to the beneficial intention of the Ordinance for it to be construed as evidencing a clear and plain intention that the declaration of a prohibited area should adversely affect native title rights and interests. Furthermore, the exclusion of Aboriginal people from prohibited areas was not absolute as declarations did not apply to those Aboriginals entitled to be or remain within the area with the permission of the Protector of Aborigines.
The respondent’s submission must be rejected.
(v) Local Government
The respondent says that by-laws created pursuant to the Local Government Act which apply to all public places within the municipal area of the Alice Springs Town Council and which prohibit the lighting of fires, the taking of birds and animals, interfering with flora and camping are inconsistent with the continued existence of any native title right to occupy or obtain sustenance from such places and extinguish native title to that extent. Apart from this bare assertion, the respondent advances no argument to supply its submission.
The respondent’s position is a curious one. First, it is noted that although the Alice Springs Town Council was from the outset a party to the proceeding, it chose not to take any part in it and accordingly cannot be said to support the respondent’s argument. Second, the term ‘public place’ as used in the by-laws to which the respondent refers is defined as ‘any place within the municipality which is open to or used by the public’.
The Court is able to take judicial notice of the fact that not only are the beds of the Todd and Charles Rivers places within the municipality which are open to the public but they are extensively used by members of the public, particularly Aboriginal people, as a place to camp. Whether or not such people first obtain a permit to camp pursuant to the by-laws does not appear from the evidence but it would be stretching credibility somewhat to suggest that those who camp in the Todd and Charles Rivers do so strictly in accordance with the by-laws.
Be all that as it may, the by-laws to which reference is made by the respondent do no more than regulate the conduct of all people, Aboriginal and non-Aboriginal, and do not evidence a clear and plain intention to thereby extinguish native title.
(vi) Soil Conservation
On 3 July 1980 an area of land which is part of area 28 was declared to be a ‘Restricted Use Area’ pursuant to the provisions of s 20B of the Soil Conservation and Land Utilization Act. The Soil Conservation and Land Utilization Act is an Act ‘to make provision for the prevention of soil erosion and for the conservation and reclamation of land’. A declaration under s 20B may be made if ‘an area of land is subject to soil erosion through use or continued use of it by the public’. (s 20B (2)). Section 20C(1) provides that, unless with the written permission of the proper authority, a person within a restricted use area shall not —
(a) unless he is on an exempted road, have in his possession or use a motor vehicle;
(b) remove or damage any vegetation;
(c) take or remove any sand, gravel, rock, clay or earth;
(d) interfere with any erosion prevention works; or
(e) cause water or other fluid to be drained or to flow over the area.
The respondent says that the declaration of a restricted use area over part of area 28 has extinguished any native title rights to do any of the things specified in s 20C(1). The declaration of an area as a restricted use area does not prohibit access to the land and it does not confer a right to possession of the land on any person. The purpose of the legislation is quite specifically directed to the conservation of eroded land; it does not reveal a clear and plain intention to extinguish native title. Rather it merely regulates the enjoyment of the land by those who are otherwise entitled to its use by creating a regime of control that is consistent with the continued enjoyment of native title. (See Mabo No 2, per Brennan J at p 64).
(vii) Defence
During World War II, pursuant to Regulation 4 of the National Security (General) Regulations, the relevant Minister could declare a place to be a prohibited place and in addition certain other places were deemed to be prohibited places. Regulation 4(2) provided that —
A person shall not without lawful authority (proof whereof shall lie upon him) enter approach, inspect, passover or be in or in the neighbourhood of a prohibited place.
Area 32 and area 106 are said to have been within prohibited places although the applicants have raised a number of issues which raise some doubt as to whether this is strictly so. The respondent says that native title in respect of those areas was wholly extinguished as access to them by native title holders was completely prohibited.
It is beyond question that the National Security Regulations were intended to provide only a temporary regime of regulation during wartime. Indeed, to be otherwise, they would not have been a valid exercise of constitutional power. The applicants say of the Regulations in response to the respondents’ submission:
They constituted a temporary intrusion on the rights of individuals for the general purpose of national security. In short, they were a short term measure which was protective of native title (as of the property rights of other members of the Australian community) and cannot be said to have had an extinguishing effect.
That this is so is put beyond question by s 5 of the National Security Act 1939 under which the Regulations were made. Section 5(1)(b)(ii) provided:
5.(1) Subject to this section, the Governor-General may make regulations for securing the public safety and the defence of the Commonwealth and the Territories of the Commonwealth ...
It is clear that native title was not extinguished in relation to any areas affected by a declaration pursuant to regulations made under the National Security Act.
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122. One of the amendments made to the Native Title Act in 1998 was the introduction of s 47B which has the effect of mitigating some of the consequences of acts which have otherwise extinguished native title. The circumstances in which the section has application are expressed in subs (1) which provides:
47B(1) This section applies if:(a) a claimant application is made in relation to an area; and
(b) when the application is made, the area is not:
(i) covered by a freehold estate or a lease; or
(ii) covered by a reservation, proclamation, dedication, condition, permission or authority, made or conferred by the Crown in any capacity, or by the making, amendment or repeal of legislation of the Commonwealth, a State or a Territory, under which the whole or a part of the land or waters in the area is to be used for public purposes or for a particular purpose; or
(iii) subject to a resumption process (see para (5)(b)); and
(c) when the application is made, one or more members of the native title claim group occupy the area.
In general terms it may be said that the section applies in respect of unalienated and unreserved Crown land. In this proceeding no part of the claimed land is ‘subject to a resumption process’ as described in para (5)(b) of the section but there are many parts of the claimed land which are not covered by either a freehold estate, a lease or a reservation or other use as described in para (1)(b)(ii).
In circumstances in which s 47B applies, the consequence is (as stated in subsection (2)) that:
(2) For all purposes under this Act in relation to the application, any extinguishment of the native title rights and interests in relation to the area that are claimed in the application, by the creation of any prior interest in relation to the area must be disregarded.
The construction and application of the section would present no serious difficulty in a situation where for example the indigenous population has continued to occupy land without disturbance during a period when the land has been the subject of say a lease which is a Scheduled interest. But in the context of the present application the section throws up a number of issues which are not without some difficulty.
123. The section applies if a claimant application (which this application is) is made ‘in relation to an area of land’. The use of the singular in para (1)(a) is consistent with s 13(1) of the Act which authorises the making of the application. In that section reference is made to an application ‘in relation to an area’. The ordinary rules of statutory interpretation applicable to Commonwealth statutes require that in appropriate cases the singular include the plural and there is no suggestion that where (as in this case) two or more unconnected areas of land are included in a single application, the application is in any way deficient. Indeed, the applicants would say that their native title continues to exist in relation to the whole of the land and waters within the limits of their traditional country and that the fragmentation of the claim into separate parcels merely takes account of prior extinguishing acts recognised by the common law and the Native Title Act. In this sense the application can be regarded as relating to a single area, or at least what is left of that area after taking account of the extinguishment of native title.
124. Two related questions are thrown up by para (1)(c). The first is what is meant by ‘occupy’ and the second is what is ‘the area’ referred to. In referring to ‘the area’ para (1)(c) presumably refers to ‘the area’ in relation to which the application is made that is, the area referred to in para (1)(a). If the application is regarded as having been made in respect of two or more separate areas, then the question of occupation would need to be addressed separately in relation to each of such areas. On the other hand, if the application is to be regarded as having been made to separate fragments of a single area then it would seem that occupation of any part of the claimed land would satisfy the requirement of para (1)(c).
In the absence of binding authority applicable to the construction of this particular provision it is necessary to apply a meaning which is both consistent with the objects of the legislation and sensible. Some guidance is found in the judgment of Toohey J in Mabo No 2. His Honour there said at p 188-190:
The requirements of proof of traditional title are a function of the protection the title provides. It is the fact of the presence of indigenous inhabitants on acquired land which precludes proprietary title in the Crown and which excites the need for protection of rights. Presence would be insufficient to establish title if it was coincidental only or truly random, having no connexion with or meaning in relation to a society’s economic, cultural or religious life. It is presence amounting to occupancy which is the foundation of the title and which attracts protection, and it is that which must be proved to establish title. Thus traditional title is rooted in physical presence. That the use of land was meaningful must be proved but it is to be understood from the point of view of the members of the society.
North American cases have begun to articulate factors which will indicate this kind of presence on, or use of, land. Any such articulation cannot be exhaustive.
First, presence on land need not amount to possession at common law in order to amount to occupancy. United States and Canadian cases have required proof of occupancy by reference to the demands of the land and society in question ‘in accordance with the way of life, habits, customs and usages of the [indigenous people] who are its users and occupiers’. In Hamlet of Baker Lake the Canadian Federal Court held that the Inuit succeeded in showing that they occupied their land. Mahoney J said:
The absence of political structures like tribes was an inevitable consequence of the modus vivendi dictated by the Inuit’s physical environment ... Furthermore, the exigencies of survival dictated the sparse, but wide ranging, nature of their occupation.
...
The nature, extent or degree of the Aborigines’ physical presence on the land they occupied, required by the law as an essential element of their Aboriginal title is to be determined in each case by a subjective test. To the extent human beings were capable of surviving on the barren lands, the Innuit were there; to the extent the barrens lent themselves to human occupation, the Inuit occupied them.
This aspect of occupancy need not be pursued further since the economy of the Meriam people on the Islands was, compared with that described in Hamlet of Baker Lake, settled and intensive. It is clear, however, that a nomadic lifestyle is not inconsistent with occupancy.
Secondly, it has been said that to amount to occupancy presence on land must have been established ‘long prior’ to the point of inquiry. That is necessarily a relative concept. In Milirrpum Blackburn J was content to approach the plaintiffs’ claim as requiring proof of occupancy from a ‘time in the indefinite past’. He rejected the expression ‘from time immemorial’, though used in the statement of claim, as having technical connotations that were of no relevance to the plaintiffs’ case. Blackburn J thought it necessary that the plaintiffs prove occupancy from the acquisition of English sovereignty, a view also taken by Mahoney J in Hamlet of Baker Lake. If occupation by an indigenous people is an established fact at the time of annexation, why should more be required? In any event, in the present case, the defendant did not argue that the plaintiffs failed because their presence on the Islands was too recent.
Thirdly, it was said in United States v Santa Fe Pacific Railroad Co:
If it were established as a fact that the land in question were, or were included in, the ancestral home of the Walapais in the sense that they constituted definable territory occupied exclusively by the Walapais (as distinguished from lands wandered over by many tribes), then the Walapais has ‘Indian title’.
This principle of exclusive occupancy is justified in so far as it precludes indiscriminate ranging over land but it is difficult to see the basis for the rule if it precludes title merely on the ground that more than one group utilizes land. Either each smaller group could be said to have title, comprising the right to shared use of land in accordance with traditional use; or traditional title vests in the larger ‘society’ comprising all the rightful occupiers. Moreover, since occupancy is a question of fact, the ‘society’ in occupation need not correspond to the most significant cultural group among the indigenous people.
125. Given the context in which s 47B was enacted, namely as part of Parliament’s response to the decision in Wik, it is reasonable to assume that in referring to the occupation of land in s 47B(1)(c) the legislature had in mind what had previously been said by the High Court concerning the occupation of land by the indigenous people. By application of the general thrust of the passage from the judgment of Toohey J quoted above to the facts of this case, the following general principles would appear to be appropriate to apply:
(a) Lot and portion boundaries, which have been established by the Northern Territory authorities for administrative purposes have no relevance in defining areas in relation to which native title exists;
(b) Separated parts of the claimed land (whether made up of a single or of multiple lots and/or portions) which are remote from each other need not necessarily be regarded as separate areas for the purpose of para (1)(c);
(c) The occupation of land should be understood in the sense that the indigenous people have traditionally occupied land rather than according to common law principles and judicial authority relating to freehold and leasehold estates and other statutory rights. The use of traditional country by members of the relevant claimant group which is neither random nor co-incidental but in accordance with the way of life, habits, customs and usages of the group is in the context of the legislation sufficient to indicate occupation of the land.
(d) In applying s 47B regard should be had to the portion or portions of the claimed land actually occupied in the sense described above at the time the application is made.
126. The applicants adduced evidence from a group of 18 witnesses touching upon their use of the claimed land from which they seek to establish that at the time the application was made one or more members of the claimant group occupied parts of the claimed land which have been subjected to extinguishing acts. To some extent the evidence was repetitious and in a number of cases it related to areas which have not been affected by prior extinguishing interests. It is not proposed to recount every detail of their evidence but rather to express in summary form the conclusions which can be drawn from it.
(i) Rosie Ferber Ampetyane is a senior member of the Mparntwe group. She has at all times relevant to this application resided at Amoonguna and at Mpweringke outstation (which is approximately 50 km north of Alice Springs) neither of which are on claimed land. She has at times collected bush medicine from the Middle Park area (area 70) and around the Old Telegraph Station and has been actively and extensively involved in assisting in the protection of sacred sites including a number of important sites on claimed land and for that purpose has frequently visited those parts of the land. This evidence is sufficient to establish that when the application was made Ms Ferber occupied at least part of area 70 of the claimed land.
(ii) Eli Rubuntja Pengarte resides at the Anthepe Town Camp and has done so since 1975. He is a member of the Mparntwe group. The Anthepe Camp is situated close to, and to the west of, Stuart Highway south of Heavitree Gap. The evidence establishes that Mr Rubuntja and others hunt and gather food and observe traditional ceremonial activities in the general area of Anthepe on land which in this application is identified as areas 62, 151, 152, 153, 154, 155, 161, 162 and 163 and it can fairly be said that when the application was made Mr Rubuntja occupied those areas.
(iii) Sabella Turner Kngwarraye is a member of the Antulye group. At the time the application was made she resided at Ilpeye Ilpeye Town Camp on the east side of Alice Springs adjacent to surrounding vacant Crown land. The evidence establishes that at the relevant time Ms Turner used the land to the east of Ilpeye Ilpeye and the west of the Undoolya Station boundary for the purpose of hunting and collecting bush food and medicine and that she used land in the vicinity of sites known as Arnkarre Atherrke-Atherrke (site 76) and Irrlparle (site 74) and vacant Crown land between Ross Highway and Amoonguna to obtain firewood and gather bush food and medicine. These activities are sufficient to establish that when the application was made she occupied areas 27, 135, 136, 138, 139, 140, 143 and 167.
(iv) Renee McLean Ampetyane is a member of the Irlpme group. She resided at a camp at Middle Park (area 70) for a period of seven years including the time when the application was made. She and her sisters used the land surrounding the camp to gather food and medicine, collect firewood and obtain water from a soakage in the bed of the Todd River. These activities establish that when the application was made Ms McLean occupied areas 70, 122 and 123.
(v) Myra Hayes Ampetyane is connected to both the Mparntwe and the Antulye groups. Since 1990 she has lived permanently on vacant Crown land at a site known as Irrkerlantye Atwatye (site 33) at a camp commonly known as White Gate. The camp is located centrally in relation to areas 137, 138, 139, 143 and 144 all of which are used for the purpose of collecting firewood and gathering bush food and medicine. In addition Ms Hayes and members of her family travel over and hunt and gather bush food on area 140. On occasions she camps at the site known as Aherre-Aherre (site 19) on area 137. There are places within these areas which are used for bush camps in relation to the training and initiation of young men. Ms Hayes’ activities in relation to the land establishes that when the application was made she occupied areas 137, 138, 139, 140, 143 and 144.
(vi) Frank Stevens Peltharre is a member of the Mparntwe group and resided at Sixteen Mile outstation (about 30 km north of Alice Springs) at the time the application was made. His evidence deals with his activities in relation to assisting government officials in the protection of sacred sites on areas 87, 141, 142, 147, 166 and 168. Although the protection of sites is an important traditional activity, the fact that a person from time to time enters upon the land in question in pursuit of that activity is not, by itself, sufficient to amount to occupation of the land.
(vii) Robert Francis Stuart Kngwarraye is a member of the Mparntwe group. He resided in Alice Springs when the application was made. His evidence deals mainly with his use of area 27 which is currently the subject of CLP 764 in favour of the Mbantarinya Aboriginal Corporation. A second aspect of Mr Stuart’s evidence is in all material respects the same as that of Frank Stevens, and for the reasons expressed above Mr Stuart cannot be regarded as having occupied the areas in question at the relevant time.
(viii) Patrick McMillan Perrurle resided at Uyenpere Atwatye (site 51) (sometimes known as Hidden Valley) on area 146 when the application was made. He is a member of the Mparntwe group. At the relevant time Mr McMillan used the land to the east and south of his camp for hunting, obtaining water and gathering firewood, bush food and medicine. He would share the results of his hunting with other members of his family in accordance with traditional Aboriginal practices. These activities establish that when the application was made he occupied areas 27, 139, 140, 146, and 150.
(ix) Veronica Golder Pengarle is a member of the Mparntwe group. She has resided at the Ilpeye Ilpeye town camp for over 15 years. Her evidence deals with her activities in collecting firewood, bush tucker and bush medicine on land close to Ilpeye Ilpeye which is identified as areas 138, 139, 140,143 and 144. She also collects bush tucker on the Mbantarinya Aboriginal Corporation lease (area 27). All of the areas mentioned have been dealt with in the evidence of other witnesses. There are however two other matters referred to by Ms Golder. She says that during 1993 and 1994 she was involved in a tree planting project on Billygoat Hill (area 32) which was organised by Greening Australia. That activity does not amount to occupying area 32 in any relevant sense. Her evidence also deals with another part of the claimed land. At para 5 of her witness statement (exhibit A 64) she states:
I also regularly visit Ankerre-ankerre (Coolibah Swamp) (site 47) to collect alpmenye (bark from the coolibah tree). This is the country shown on the map as Claim Area 142. This bark is burned to make ash to chew with ingkwerlpe (native tobacco) or tobacco. I walk to Ankerre-ankerre. I have been doing that since I have been living at Ilpeye Ilpeye.
Area 142 was subdivided in 1994 to form lots 8163 — 8166. The land has a frontage to Stott Terrace close to, but on the opposite side of Stott Terrace, from Sadadeen High School. It is in reasonable proximity to Ilpeye Ilpeye. Given Ms Golder’s continued involvement in the use of her traditional country for the gathering of food and medicine and her long term residence at Ilpeye Ilpeye it is appropriate to regard her continued use of the resources of area 142 as part of her continued occupation of her traditional country.
127. It is unnecessary to canvass the evidence of the remaining witnesses of the group referred to in the preceding paragraph. In some cases their evidence relates to areas which have been found to have been occupied by one or more members of the claimant group at the time when the application was made and in other cases it relates to areas which have not been affected by any prior extinguishing interest. It is sufficient to say that in each case the evidence is along similar lines to that summarised above and establishes occupation of the areas referred to at the relevant times. The names of the witnesses and the areas to which their evidence relates are as follows:
(i) Teresa Webb Angale (Irlpme group): Areas 135, 136 and 137
(ii) Brian Kevin Stirling Kemarre (Mparntwe group): Areas 27, 137, 138, 139, 140, 143 and 146
(iii) Jean Stuart Kemarre and her daughter Rona Stuart Kemarre (Atulye group): Areas 80, 88, 92, 94, 147, 148 and 150
(iv) Marie Elena Ellis Kemarre/Perrurle and her sister Roseanne Philamena Ellis Kemarre/Perrurle: Areas 135, 136 and 137
(v) Felicity Hayes Angale: Areas 116, 131 and 132
(vi) Patricia Anne Miller Kemarre and her sister Karen Liddle Kemarre (Mparntwe group): Areas 27, 89, 90, 129, 133, 134, 136, 137, 138, 143, 144 and 167
128. The provisions of s 47B do not apply to land covered by a lease (and thus does not apply to area 27) and further have relevance only in relation to land in relation to which native title has been extinguished by the creation of a prior interest in the land. Areas which were occupied by one or more members of the claimant group when the application was made but which have not been the subject of a prior extinguishing interest are areas 80, 88-90, 92, 94, 116, 129, 131-134, 137, 147, 148, 150 and 151. The section does however operate so as to require that any extinguishment of native title by the creation of a prior interest be disregarded in relation to areas 62, 70, 122, 123, 135, 138-140, 142-144, 145, 152-155, 161-163 and 167.
129. The applicants are entitled to a determination of native title which reflects the findings expressed in these reasons.
Section 225 of the Native Title Act sets out the information which such a determination must contain.
...
130. Section 225 of the Native Title Act refers to the making of a determination of native title in relation to a ‘particular area’ of land and waters. In a case involving large tracts of land, such as pastoral holdings or remote areas of unalienated land the task of describing the determination area by metes and bounds would not normally present any great difficulty but in a case such as the present the problem is compounded not only by the number of discrete parcels of land involved but by the fact that the current lot and portion boundaries bear little or no relationship to the boundaries of land which in earlier times has been the subject of extinguishing acts. Whilst many of the 166 areas of claimed land have not been the subject of any extinguishment, there are many others in respect of which native title has been extinguished as to the whole of the lot or portion. Those cases present no difficulty but there remain numerous areas in respect of which extinguishing acts have affected only a portion of the land. The position is further complicated by the lack of definition in many instances of the location and area of land occupied by public works and adjacent land.
131. Consistent with the Court’s findings the determination will provide:
(i) Native title exists in respect of the determination area.
(ii) The persons who hold the common or group rights comprising the native title (the common law holders) are those Aboriginals who are descended from the original Arrernte inhabitants of the Mparntwe, Antulye and Irlpme estates who are recognised by the respective apmerke-artweye and Kwertengerle of those estates under the traditional laws acknowledged and the traditional customs observed by them as having communal, group or individual rights and interests in relation to such estates.
(iii) The nature and extent of the native title rights and interests in relation to the determination area are, subject to the rights of others validly granted by the Crown pursuant to statute and to any valid executive or legislative act affecting the native title of the common law holders, as follows:(a) the right to possession, occupation, use and enjoyment of the land and waters of the determination area;
(b) the right to be acknowledged as the traditional Aboriginal owners of the land and waters of their respective estates within the determination area;
(c) the right to take, use and enjoy the natural resources found on or within the land and waters of the determination area;
(d) the right to make decisions about the use of the land and waters of their respective estates within the determination area;
(e) the right to protect places and areas of importance in or on the land and waters within the determination area;
(f) the right to manage the spiritual forces and to safeguard the cultural knowledge associated with the land and waters of their respective estates within the determination area.
(iv) The nature and extent of other interests in relation to the determination area are such rights and interests validly granted by the Crown pursuant to statute or by any valid executive or legislative act affecting the native title of the common law holders including the rights and interests of members of the public to the use and enjoyment of the determination area according to law.
(v) To the extent that any inconsistency exists between the native title rights and interests referred to in paragraph (iii) and the rights conferred by the other interests referred to in paragraph (iv), the native title rights and interests must yield to such other rights.
(vi) The native title rights and interests of the common law holders do not confer possession, occupation use and enjoyment of the determination area on the common law holders to the exclusion of all others.
132. The Court intends to make a determination of native title substantially in the terms outlined in the last preceding paragraph. The final content and form of the determination will be settled after the parties have had the opportunity to consider these reasons and to make submissions as to precise content of the determination. It is expected that prior to any such submissions being made the parties will confer with a view to reaching a consensus as to the ultimate form of the determination.
133. One of the determinations that the Court is required to make is whether the native title is to be held in trust, and if so, by whom (s 56(1)). For the purpose of complying with its obligations under s 56(2) the Court requests that Myra Hayes Ampetyane as a representative of the persons who it is proposed will be included in the determination as the common law holders to indicate whether the common law holders intend to have the native title held in trust by:
(i) nominating, in writing given to the Federal Court within a period of two months, from the date of the publication of these reasons a prescribed body corporate to be trustee of the native title; and
(ii) including with the nomination the written consent of the body corporate.
In the event that the common law holders give such nomination within the period specified, the Court will determine that the prescribed body corporate is to hold the rights and interests from time to time comprising the native title in trust for the common law holders (s 56(2)(b)), otherwise the Court will determine that such rights and interests are to be held by the common law holders (s 56(2)(c)).
Counsel for the applicants:
Mr B Keon-Cohen QC
and later:
Mr J Basten QC with (in each case)
Mr R Howie
Solicitor for the applicants:
Mr C Athanasiou, (Native Title Unit, Central Land Council)
Counsel for the first respondent:
Mr T Pauling QC (Solicitor-General for the Northern Territory) with
Ms R Webb and Mr P Walsh
Solicitor for the first respondent:
Solicitor for the Northern Territory
The other respondents did not appear.
[1] The full text of the judgment is available at <www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/federal%5fct/1999/1248.html>.
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/2000/15.html